Wills--tortious interference with prospective advantage_-testamentary benefits_statement
of claim
The trial court erred in a tortious interference with prospective advantage case by granting
defendants' motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiffs' claim that
defendants maliciously caused the parties' stepgrandmother to execute a will that left plaintiffs
only nominal bequests, because: (1) the allegations from the complaint do not necessarily establish
that plaintiffs would be able to obtain adequate relief through a caveat proceeding; (2) the
inadequacy of relief in a caveat proceeding would entitle plaintiffs to proceed with a tort claim;
and (3) it does not appear beyond doubt that plaintiffs can prove no set of facts in support of a
claim entitling them to relief.
Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for
plaintiffs-appellants.
Bell, Davis & Pitt, P.A., by William K. Davis and Stephen M.
Russell, for defendants-appellees.
GEER, Judge.
Plaintiffs Joanne H. Murrow and Rebecca H. Mathis appeal the
order of the trial court dismissing their claim that defendants
Nancy Henson and Bonnie Gallo maliciously caused their step-
grandmother to execute a will that left plaintiffs only nominal
bequests. We hold that plaintiffs' complaint sufficiently states
a claim for relief under Johnson v. Stevenson, 269 N.C. 200, 152
S.E.2d 214 (1967) and Griffin v. Baucom, 74 N.C. App. 282, 328S.E.2d 38, disc. review denied, 314 N.C. 115, 332 S.E.2d 481 (1985)
and, therefore, reverse the decision below.
6. Defendants imposed upon Rebecca
Barnhill Hundley, and gave her false and
defamatory information about plaintiffs that
turned her against them and predisposed her to
execute a new will providing for only nominal
bequests to plaintiffs. Defendants also by
the same process induced and influenced
Rebecca Barnhill Hundley to make substantial
and favorable inter vivos gifts to them, and
to diminish and eventually eliminate inter
vivos gifts to plaintiffs from her.
. . . .
10. By means set forth above, defendants
maliciously induced Rebecca Barnhill Hundley
to reduce and eventually eliminate gifts that
she had making [sic] and would have made to
plaintiffs, and to eliminate plaintiffs as
substantial beneficiaries under her will.
. . . .
16. Specifically, plaintiffs had
legitimate and bona fide expectations of
benefits from Rebecca Barnhill Hundley; and
defendants knew of these legitimate and bona
fide expectations of benefits from Rebecca
Barnhill Hundley; defendants intentionally
induced Rebecca Barnhill Hundley not to make
gifts to plaintiffs and to provide them
substantial benefits by her will; defendants
acted without justification; and defendants
caused actual pecuniary harm to plaintiffs.
Based on these allegations, plaintiffs asserted that defendants'
conduct amounted to malicious interference with prospective
advantage of plaintiffs to receive gifts and testamentary benefits
from Ms. Hundley.
On 3 September 2004, defendants filed a motion to dismiss
plaintiffs' complaint pursuant to N.C.R. Civ. P. 12(b)(6). A
hearing was held on 4 October 2004 in Guilford County Superior
Court and the trial court granted defendants' motion on 11 October
2004. Plaintiffs subsequently filed a notice of appeal to this
Court on 27 October 2004.
The purpose of a motion under Rule 12(b)(6) is to test "the
legal sufficiency of the pleading." Sterner v. Penn, 159 N.C. App.
626, 628, 583 S.E.2d 670, 672 (2003). When determining whether a
complaint is sufficient to withstand a motion to dismiss under Rule
12(b)(6), the trial court must discern "'whether, as a matter of
law, the allegations of the complaint, treated as true, aresufficient to state a claim upon which relief may be granted under
some legal theory.'" Shell Island Homeowners Ass'n. v. Tomlinson,
134 N.C. App. 217, 225, 517 S.E.2d 406, 413 (1999) (quoting
Isenhour v. Hutto, 129 N.C. App. 596, 598, 501 S.E.2d 78, 79,
review allowed, 349 N.C. 360, 517 S.E.2d 895 (1985)). A complaint
should be dismissed if "[1] no law exists to support the claim
made, [2] if sufficient facts to make out a good claim are absent,
or [3] if facts are disclosed which will necessarily defeat the
claim." Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209,
388 S.E.2d 134, 136 (1990).
On appeal, plaintiffs do not challenge the trial court's
dismissal to the extent that it involves inter vivos gifts as
opposed to testamentary benefits. With respect to testamentary
benefits, plaintiffs argue that the trial court's dismissal of
their claim cannot be reconciled with Bohannon v. Wachovia Bank &
Trust Co., 210 N.C. 679, 188 S.E. 390 (1936).
In Bohannon, the plaintiff alleged that his grandmother and
aunt had by false representations prevailed upon the plaintiff's
grandfather to change his "fixed intention" to leave a large share
of his estate to the plaintiff. Id. at 681, 188 S.E. at 391. Our
Supreme Court held that these allegations supported a cause of
action: "If the plaintiff can recover against the defendant for
the malicious and wrongful interference with the making of a
contract, we see no good reason why he cannot recover for the
malicious and wrongful interference with the making of a will."
Id. at 685, 188 S.E. at 394. In this appeal, the parties debate the applicability of
Bohannon, focusing on whether or not the case involved an existing
and probated will, as here. Defendants contend that "[t]he Supreme
Court [in Bohannon] did not deal with an existing will or the
effect of an existing will." Plaintiffs, however, state that "it
clearly appears in the report of that case that the will in
question had been admitted to probate and was under administration
at the time the lawsuit for intentional interference with
prospective advantage was filed." Neither position is precisely
correct. The language referenced by plaintiffs indicates only that
one of the defendants, who had passed away prior to filing of the
suit, had a will that had been probated. The decision cited by the
parties does not, however, indicate anywhere that a will had been
admitted to probate. Nevertheless, a subsequent appeal in the
case, Bohannon v. Trotman, 214 N.C. 706, 708, 200 S.E. 852, 852
(1939) confirms that there was a will and that, at some unspecified
time, it was duly probated.
We need not, however, resolve whether Bohannon is factually
similar or distinguishable from this case since Bohannon does not
represent the final word in North Carolina on this issue _ although
the development of the law has been somewhat contradictory. In
1950, the Supreme Court addressed a factual scenario similar to
that in Bohannon, but never mentioned the Bohannon opinion. See
Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448 (1950). Defendants
contend that Holt controls rather than Bohannon. The Holt plaintiffs sued "to recover damages of defendants for
allegedly inducing decedent by fraud or undue influence to convey
and will his property to them pursuant to a conspiracy on the part
of the defendants and another to defraud plaintiffs of their rights
of inheritance." Id. at 498, 61 S.E.2d at 450. The decedent's
will _ which excluded the plaintiffs as beneficiaries _ had been
admitted to probate. The Supreme Court in Holt first held:
In so far as his children are concerned,
a parent has an absolute right to dispose of
his property by gift or otherwise as he
pleases. He may make an unequal distribution
of his property among his children with or
without reason. These things being true, a
child has no standing at law or in equity
either before or after the death of his parent
to attack a conveyance by the parent as being
without consideration, or in deprivation of
his right of inheritance.
Id. at 500-01, 61 S.E.2d at 451 (emphasis added). The Court added:
When a person is induced by fraud or
undue influence to make a conveyance of his
property, a cause of action arises in his
favor, entitling him, at his election, either
to sue to have the conveyance set aside, or to
sue to recover the damages for the pecuniary
injury inflicted upon him by the wrong. But
no cause of action arises in such case in
favor of the child of the person making the
conveyance for the very simple reason that the
child has no interest in the property conveyed
and consequently suffers no legal wrong as a
result of the conveyance.
Id. at 501, 61 S.E.2d at 452 (emphasis added) (internal citations
omitted). The Court then held that if the person making the
conveyance should die, the cause of action survives and passes "to
those who then succeed to his rights." Id. Plaintiffs in this
case have argued that Holt involved a challenge regarding intervivos transfers and, at this point in the Holt opinion, the Court
indeed does proceed to address who may challenge transfers of
property made by a decedent in his lifetime and what showing is
required. See id. at 502, 61 S.E.2d at 452.
In the next paragraph, however, the Court observed that the
Holt plaintiffs claimed to have succeeded as heirs and next of kin
of the decedent to the right to bring the decedent's claim that the
defendants had induced the decedent by fraud to deny the plaintiffs
their rights of inheritance. In rejecting this claim, the Supreme
Court stressed that the will admitted to probate had vested in the
defendants all rights existing in the decedent at the time of his
death. Id., 61 S.E.2d at 453. The Court then wrote:
To be sure, the plaintiffs offered [the will]
in evidence "for the purpose of attack," and
undertake to avoid its legal effect as a
testamentary conveyance of the rights of their
ancestor to the defendants by asserting that
its execution was induced by fraud or undue
influence perpetrated on their ancestor by the
defendants and their fellow conspirator . . .
. But the law does not permit the plaintiffs
to assail the probated paper writing in this
collateral fashion.
Id. After pointing out that by statute, an order of the Clerk
admitting a paper writing to probate constitutes conclusive
evidence that the paper writing is the valid will of the decedent,
see N.C. Gen. Stat. § 31-19 (2003), the Court held: "This being
true, the plaintiffs have no standing to maintain these suits until
the probated paper writing is declared invalid as a testamentary
instrument by a competent tribunal in a caveat proceeding; for such
paper writing wills all rights existing in [the decedent] at thetime of his death to the defendants, with the result that nothing
descends to the heirs or next of kin." Id. at 503, 61 S.E.2d at
453.
In summary, Holt appears to hold (1) that the right to sue for
fraud even with regard to the making of a will rests in the maker
of the will, (2) that the cause of action will survive the death of
the maker of the will, and (3) unless the will is set aside through
a caveat proceeding, the right to pursue a claim for fraud (at
least as to personalty) rests with the beneficiaries under the
will. A commentator has observed that this reasoning in Holt is
difficult to reconcile with Bohannon: "The opinion is openly
hostile to the idea that there is any independent right in the
disinherited sons, based on loss of an expectancy, even based on
the intentional act of another and after the death of the parent."
Diane J. Klein, Revenge of the Disappointed Heir: Tortious
Interference with Expectation of Inheritance _ A Survey with
Analysis of State Approaches in the Fourth Circuit, 104 W. Va. L.
Rev. 259, 276-77 (2002).
Subsequently, in 1967, the Supreme Court issued a third
opinion addressing this subject in Johnson v. Stevenson, 269 N.C.
200, 152 S.E.2d 214 (1967). The Court relied on both Bohannon and
Holt, but did not resolve the apparent inconsistency between their
holdings. In Johnson, the joint will of the plaintiff's parents,
which had been probated, bequeathed all of the parents' property to
the children of the plaintiff's brother. The plaintiff was not
mentioned in the will. The plaintiff alleged that by fraudulentacts, her brother and sister-in-law wrongfully denied the plaintiff
her rightful inheritance. As relief, she sought a constructive
trust on certain property for her benefit.
The Court distinguished Bohannon on the grounds that the
decedent in Bohannon had (a) a "fixed intention" to settle part of
his estate on the plaintiff, (b) the plaintiff could not have filed
a caveat proceeding, and (c) the plaintiff would not have received
anything from his grandfather's estate in the event that the
grandfather died intestate. Id. at 203, 152 S.E.2d at 217. The
Court found the Holt decision "more analogous" and described the
opinion as holding that "the will could be attacked only by caveat;
and that, unless and until the will was declared invalid in a
caveat proceeding, all rights existing in [the decedent] at the
time of his death, to attack conveyances he had made, vested in the
defendants as beneficiaries under the will." Id. The Court
observed that "the thrust of" the Holt decision was in accord with
its decision, id., but then proceeded to engage in a slightly
different analysis.
The Johnson Court first pointed out that a constructive trust
is an equitable remedy and quoted from the Restatement of
Restitution § 184: "'Where a disposition of property by will or an
intestacy is procured by fraud, duress or undue influence, the
person acquiring the property holds it upon a constructive trust,
unless adequate relief can otherwise be given in a probate court.'"
Johnson, 269 N.C. at 204, 152 S.E.2d at 217 (emphasis in Johnson).
Based on this principle, the Court held: "The grounds on whichplaintiff seeks to establish a constructive trust were equally
available as grounds for direct attack on the will by caveat. This
right of direct attack by caveat gave her a full and complete
remedy at law. Hence, plaintiff, on the facts alleged, is not
entitled to equitable relief." Id. The Court then proceeded to
also hold that an heir could establish a right to a constructive
trust "notwithstanding the probate of a will under which such heir
is not a beneficiary" upon a showing of extrinsic fraud. Id. at
204-05, 152 S.E.2d at 218.
In sum, the Court in Johnson suggested that equitable relief
could be available to an heir omitted from a will if: (1) the
grounds on which the plaintiff sought relief were not equally
available through a caveat proceeding; (2) the caveat proceeding
would not give the plaintiff an adequate remedy; (3) fraud was
practiced directly upon the plaintiff by the defendants either
before or after the death of the decedent; (4) fraud was practiced
on the plaintiff or on the probate court in connection with the
probate of the will; or (5) defendants interfered with the
plaintiff's right to attack the will by caveat. Id. at 204-05, 152
S.E.2d at 217-18. Because the Johnson complaint established the
availability of relief through a caveat proceeding and failed to
allege any of the pertinent types of fraud, the Court affirmed the
dismissal of the plaintiff's complaint.
This Court addressed Bohannon and Johnson, but not Holt, in
Griffin v. Baucom, 74 N.C. App. 282, 328 S.E.2d 38, disc. review
denied, 314 N.C. 115, 332 S.E.2d 481 (1985). The plaintiffs inGriffin offered evidence that the defendants _ the deceased's wife
and sister-in-law _ exercised undue influence over the deceased to
cause him to destroy his will, leaving him intestate with the
result that all of his property went to his wife to the exclusion
of the plaintiffs. Id. at 285, 328 S.E.2d at 41. The defendants
also destroyed all evidence regarding the contents of the will.
Id. The plaintiffs sought either (1) a conveyance of real property
that they contend they would have received under the will in the
absence of interference or (2) a money judgment in an amount equal
to the value of that property. Id. at 283, 328 S.E.2d at 39.
The Griffin Court first recited the rule in Bohannon: "North
Carolina recognizes the existence of the tort of malicious and
wrongful interference with the making of a will. . . . If one
maliciously interferes with the making of a will, or maliciously
induces one by means of undue influence to revoke a will, to the
injury of another, the party injured can maintain an action against
the wrongdoer." Id. at 285-86, 328 S.E.2d at 41. After concluding
that the plaintiffs in Griffin had offered sufficient evidence to
establish an issue of fact regarding a malicious interference
claim, the Court turned to the defendants' argument that the
plaintiffs were in effect seeking to prove the will and, therefore,
were required to proceed by way of a caveat proceeding.
The Court explained, citing Johnson: "While we agree that
where a will has been submitted for probate, a plaintiff must avail
himself of the statutory remedy of a will contest to prove or set
aside the instrument, where no will has been submitted, as in thecase sub judice, plaintiff may pursue a tort remedy and is not
limited to the remedy of a probate proceeding." Id. at 287, 328
S.E.2d at 42 (internal citations omitted). The Court noted that
"[d]efendants cite cases from other jurisdictions as recognizing
the doctrine that an attempt to pursue a remedy in probate
proceedings or a showing that a remedy is unavailable or inadequate
through probate proceedings is a prerequisite to maintaining an
action for damages for interference with an expected inheritance."
Id. The plaintiffs in Griffin had, however, offered "evidence
indicative that the relief available in a probate proceeding was
inadequate or even nonexistent." Id. Accordingly, the Court held
"that in the case under review where no will was submitted for
probate and where facts exist indicating that inadequate relief was
available in a probate proceeding, plaintiffs were not required to
first seek to prove the revoked will in a probate proceeding before
pursuing their tortious interference claim." Id.
Based on Griffin's application of Johnson, we believe
Johnson's analysis is equally applicable to cases not involving a
request for a constructive trust. Johnson and Griffin also provide
a means by which Holt and Bohannon may be reconciled. It appears
that in Holt, the plaintiffs could have obtained an adequate remedy
in a caveat proceeding, while in Bohannon, the plaintiff could not.
Thus, in this case, as in Griffin, the question is whether a caveatproceeding was available and, if so, whether such a proceeding
would provide an adequate remedy to plaintiffs.
(See footnote 1)
Plaintiffs' complaint alleges that a will exists and their
brief on appeal appears to acknowledge that the will has been
submitted to probate. The complaint's allegation that Mrs.
Hundley's will provided for only nominal bequests to plaintiffs
also suggests that plaintiffs could have filed a caveat proceeding.
N.C. Gen. Stat. § 31-32 (2003), which governs caveat proceedings,
provides that "any person entitled under such will, or interested
in the estate, may appear in person or by attorney before the clerk
of the superior court and enter a caveat to the probate of such
will . . . ." Taking the allegations of the complaint as true, it
appears plaintiffs were beneficiaries under Mrs. Hundley's will and
thus could be considered persons "entitled under such will," within
the meaning of N.C. Gen. Stat. § 31-32. See In re Will of Joyner,
35 N.C. App. 666, 668, 242 S.E.2d 213, 214 (holding "under the
plain words of the statute" that children who were beneficiaries
under their parent's will were persons "entitled under such will,
or interested in the estate" as that term is used in the statute),
disc. review denied, 295 N.C. 261, 245 S.E.2d 777 (1978).
Nevertheless, the allegations of the complaint do not
necessarily establish that the plaintiff step-grandchildren would
be able to obtain adequate relief through a caveat proceeding.
Under both Johnson and Griffin, the inadequacy of relief in acaveat proceeding entitles a plaintiff to proceed with his or her
tort claim. Because it does not "'appear[] beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief,'" the trial court erred in granting
defendants' motion to dismiss. Anderson v. Texas Gulf, Inc., 83
N.C. App. 634, 638, 351 S.E.2d 109, 111 (1986) (quoting Sutton v.
Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 165-66 (1970)).
Reversed.
Judges HUNTER and HUDSON concur.
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