A no-contest clause in a will may prevent or deter beneficiaries from challenging a will. In the event that the beneficiary is or would be unsuccessful in bringing a will contest claim, they may opt to pursue a claim for tortuous interference with a will. Tortious interference with a will can be a valid cause of action and it is one that many would-be-beneficiaries fail to consider.

Tortious interference is a cause of action brought in court by a beneficiary or would-be-beneficiary of a will. Tortious interference with a will involves an unlawful meddling with a beneficiary’s or would-be-beneficiary’s potential to inherit property. This potential is often referred to as an expectancy.

To be successful in a tortuous interference claim, the plaintiff must prove that the interference involved conduct that was tortious in itself. Conduct that fits this bill includes conduct amounting to fraud, duress, or undue influence. Tortious interference claims generally cannot be brought when the challenge is based on decedent’s lack of mental capacity to execute a will. In these cases the decedent would not have been able to make a valid will in the first place. Thus, there would be no way a third party could interfere with the will.

It should be noted that tortuous interference is different from a will contest claim. Tortious interference with a will is not a will contest and it does not provide the same remedy as a will contest. A tortuous interference claim does not challenge the probate or validity of a will, but, rather, seeks to recover tort damages from a third party for tortious interference.

The tort statute of limitations for bringing the claim generally starts running on the action at the time the plaintiff discovered or should have discovered the fraud or undue influence. The plaintiff generally must pursue probate remedies first. Punitive damages may be recoverable for tortuous interference, but not for a will contest. Punitive damages are those intended to punish the defendant, rather than to compensate the plaintiff.

A beneficiary can bring a will contest or a claim for tortuous interference with a will. Beneficiaries may also be able to challenge the validity of the will itself. There are a number of formalities for creating wills. Let’s consider a few of these will formalities now.