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Intentional Interference With Inheritance




                                                     No. 96-35996
                                                     D.C. No.

Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding

Argued and Submitted
March 2, 1998--Portland, Oregon

Filed March 19, 1998

Before: Ferdinand F. Fernandez, Pamela Ann Rymer, and
A. Wallace Tashima, Circuit Judges.



Kristine Sandoz Allen and Eric S. Sandoz (collectively
Sandoz) brought this tort action against Sheryl Ann Hall and
Daniel Hall for intentional interference with prospective
inheritance, a tort which the Oregon courts have not yet
embraced or rejected. The district court dismissed on the
ground that the Supreme Court of Oregon would not recog-
nize the tort.

The complaint alleged: that the Sandozes had an expec-
tancy to inherit from their uncle, Gregory Putman; that the


Hills intentionally interfered with that expectancy; that the
Hills did so by the most egregious of independently tortious
conduct -- fraud committed upon Putman's attorney to keep
her from bringing the new will to her client, and personal
injury inflicted upon Putman by forcing him into a medical
facility and then lying in order to cut off his life support sys-
tems so that he would die forthwith and not change his will;
that Putman would have left property to the Sandozes; and
that they suffered damage as a result.

There are considerations both in favor of and against recog-
nition of the tort of intentional interference with prospective
inheritance. Recognition presents dangers to the enforcement
of the decedent's desire to dispose of property by will, and to
the orderly operation of the probate system. That may well
result in the raising of claims of undue influence and the like
through the medium of suing beneficiaries directly in tort,
rather than attacking the decedent's dispositions themselves.
Those dangers are illustrated by some of the cases in this area.
See Anderson v. Meadowcroft, 339 Md. 218, 226-27, 661
A.2d 726, 730 (1995); Frohwein v. Haesemeyer, 264 N.W.2d
792, 794-95 (Iowa 1978). Moreover, because of the special
dangers of tort litigation over what a now deceased person
would have done, the tort is not like the other sorts of inten-
tional interference torts which have been recognized in Ore-
gon. Cf. Straube v. Larson, 287 Or. 357, 360, 600 P.2d 371,
373-74 (1979) (contractual relations); McBride v. Magnuson,

282 Or. 433, 435, 578 P.2d 1259, 1260 (1978) (personal rela-
tions); Johnson v. Oregon Stevedoring Co., Inc., 128 Or. 121,
133-37, 270 P. 772, 776-77 (1928) (employment relations). In
addition, a tort claim against heirs is quite different from a
mere breach of contract or negligence action against a lawyer,
who has not followed a testator's instructions. See Hale v.
Groce, 304 Or. 281, 284-86, 744 P.2d 1289, 1290-92 (1987).
Moreover, actions which allow an heir or beneficiary to sue
to set aside a fraudulent conveyance are not at all similar to
this tort. They do not affect or deflect testamentary or intes-
tate dispositions of property by the decedent. They merely


bring the property back into the estate of the decedent for
appropriate disposition in the usual course of things. See e.g.,
Brown v. Hilleary, 133 Or. 26, 27-28, 286 P. 593, 594 (1930);
Groesbeck v. Groesbeck, 49 Or. 113, 117, 88 P. 870, 872
(1907). Finally, Oregon, like other states, has made it clear
that it is not inclined to allow what amount to collateral
attacks on the determinations of courts sitting in probate. See
Wilson v. Hendricks, 164 Or. 486, 491, 102 P.2d 714, 716
(1940). That insistence (along with formalities for executing
or revoking wills) helps to avoid fraud, mistake, and a great
deal of second guessing about what the decedent really meant
to do or what he really might have done. Cf. Walker v.
Walker, 145 Or. App. 144, 149, 929 P.2d 316, 319 (1996); In
re Neil's Estate, 111 Or. 282, 290, 226 P. 439, 441 (1924).

On the other hand, the trend is to give some relief where
the attack is not upon what the testator did, but, rather, is
based upon a claim that egregious acts by others have pre-
vented the decedent from executing a new will or from revok-
ing an old one. See, e.g., Restatement (Second) of Torts
S 774B cmt. c (1977) (discussing intentional interference with
prospective inheritance); Thomas E. Atkinson, Handbook of
the Law of Wills 270-71 (fraudulent prevention of execution
of will--constructive trust or damage action available), 421-
22 (fraudulent prevention of revocation--constructive trust)
(2d ed. 1953); W. Page Keeton et al., Prosser and Keeton on
the Law of Torts S 130, at 1007-08 (5th ed. 1984); George L.
Blum, Annotation, Action for Tortious Interference with
Bequest as Precluded by Will Contest Remedy, 18 A.L.R. 5th
211 (1994); Sonja A. Soehnel, Annotation, Liability in Dam-
ages for Interference with Expected Inheritance or Gift, 22
A.L.R. 4th 1229 (1983). That is particularly true where, as
here, the probate court is not actually in a position to grant

relief. See e.g., Glickstein v. Sun Bank/Miami, 922 F.2d 666,
673-74 (11th Cir. 1991); Peffer v. Bennett, 523 F.2d 1323,
1325-26 (10th Cir. 1975); McGregor v. McGregor, 101 F.
Supp. 848, 850 (D. Colo. 1951). And, at least in a probate
contest regarding a fraudulently revoked will, the Oregon


Supreme Court has pointed out that in this area the underlying
"principle is that the law will not permit improper influences
to control the disposition of a person's property." In re Estate
of Reddaway, 214 Or. 410, 418, 329 P.2d 886, 889 (1958). If
the Oregon Supreme Court gave that principle sufficient
weight to outbalance the dangers of allowing tort actions in
this area, it would follow the trend.

If the tort of intentional interference with prospective inher-
itance is rejected as a theory of recovery, the judgment in
favor of Halls must be affirmed. On the other hand, if it is
accepted as a theory of recovery, the Sandozes may well have
stated a cause of action. Thus, the existence of that tort, and
the nature of its elements, may well be dispositive of this


Questions of Oregon state law may be determinative of this
cause. We have, however, found no controlling precedent in
the decisions of the Supreme Court of Oregon or in the inter-
mediate appellate courts of Oregon. In addition to meeting the
requirements for certification under ORS 28.200, the factors
outlined in Western Helicopter Servs. v. Rogerson Aircraft
Corp., 311 Or. 361, 366-70, 811 P.2d 627, 631-34 (1991),
counsel in favor of a decision by Oregon's highest court on
this issue that involves the relationship as a matter of policy
between the proposed tort remedy and the Probate Code. We,
therefore, respectfully request that the Supreme Court of Ore-
gon exercise its discretion pursuant to the Uniform Certifica-
tion of Questions of Law Act, Oregon Revised Statutes
SS 28.200 - .255, and answer the following questions:

(1) Does Oregon recognize the tort of intentional interfer-
ence with prospective inheritance?

(2) If a tort action for intentional interference with pro-
spective inheritance is available, what are the elements of that



(1) The Clerk of this Court shall transmit to the Supreme
Court of Oregon a certified copy of this order, as well as the
appellate briefs for this case.

(2) Pursuant to Oregon Rule of Appellate Procedure
12.20(5)(c) the Clerk of this Court shall transmit to the
Supreme Court of Oregon all or any portion of the district
court record in this case as that Court deems necessary or

(3) The parties to this action and their counsel are:

Kristine Sandoz Allen; and    Margaret Fiorino, Esq.
Eric S. Sandoz                Julie R. Vacura, Esq.
                             Suite 580
                             Fiorino & Vacura
                             808 S.W. Third Avenue
                             Portland, Oregon 97204

Sheryl Ann Hall; and          Sarah Ryan, Esq.
Daniel Hall                   101 S.W. Main
                             Portland, Oregon 97204

(4) If the Oregon Supreme Court declines certification,
we will resolve the issue according to our perception of Ore-
gon law.

(5) The panel retains jurisdiction over further proceedings
in this court. If the Oregon Supreme Court answers in the
affirmative to question one, we will reverse the judgment of
the district court and remand for further proceedings consis-
tent with the Oregon Supreme Court's opinion. If the Oregon
Supreme Court answers in the negative to question one, we
will affirm the judgment of the district court.


(6) The parties shall file a report with this Court on the
status of this case on or before the anniversary of this Order
and each anniversary thereafter.

Dated:       ___________________________________________
            Honorable Ferdinand F. Fernandez, Presiding
            Ninth Circuit Court of Appeals


*** Any law, statute, regulation or other precedent is subject to change at any time ***

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