Janice K. Litherland v. Gary Martin Jurgens and Velda Lee Lenners. Nebraska intentional interference with an inheritance
Under the terms of the decedent's will, certain real property was to go to one heir, if owned at the time of the decedent's death. Other property, including bank accounts, was to go to another group of heirs. Prior to her death, the decedent had made a durable power of attorney, naming one of the heirs (one receiving the bank accounts) the attorney-in-fact.
Prior to the decedent's death, the attorney-in-fact sold the property, and the proceeds were utlimately placed in the decedent's bank account. The result was that when the decedent died, the first heir received nothing. She filed a lawsuit in district court for, among other things, intentional interference with an inheritance, citing the Restatement (Second) of Torts, section 774B. This tort is recognized in many states, including Iowa (see Huffey v. Lea, 491 N.W.2d 518 (Iowa 1992)), but in many of those states, it is subject to limitations, such as being available only if no comparable relief is available in the probate court.
The Nebraska Supreme Court held that Nebraska law did not recognize the tort. It noted that the proper remedy could be afforded by the probate court. The issue in the probate proceeding would have been the attorney-in-fact's intent.
291 Neb. 775 (Nebraska Sep. 11, 2015)
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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