When is “failure to exhaust probate remedies” properly asserted as an affirmative defense to tortious interference with an expectancy action? The answer is almost never. (Click here for information about the tort action.) The Dewitt v. Duce, 408_So.2d_216, (Fla. 1981), holding can be paraphrased as follows: The State of Florida has an interest in the orderly succession of property and therefore prefers that a dispute concerning a decedent’s property be conducted in probate shortly after the decedent’s death rather than in a civil action years later. Therefore, if you can achieve exactly the same result with a Will contest that you could with a tortious interference lawsuit, then you must choose the Will contest. If you do not chose the Will contest, then you will be unable to sue for tortious interference later for one simple reason: “The probate of a Will in Florida is conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake and undue influence.” (emphasis added) Fla. Stat. §733.103(2). Thus, it will be impossible for you to sue for tortious interference because a court has already entered an order determining that the Will was executed free from fraud, duress and undue influence. (If there was no fraud, duress or undue influence then there is no basis for the tort.) In legal terms, the equitable principle of collateral estoppel prevents re-litigation of issues of duress, fraud, and undue influence in a subsequent tort action which were already decided in the probate proceeding by virtue of the order admitting the Will to probate. See, Kramer v. Freedman, 272 So.2d 195 (Fla. 3d DCA 1973). However, an order admitting a Will to probate is not a judicial determination that a revocable trust and inter vivos transfers were similarly free from fraud, duress or undue influence, so the principle of collateral estoppel does not apply. The DeWitt court itself held that the ruling does not apply to inter vivos transfers or to revocable trusts. “If defendant’s tortious conduct had caused the testator to make an inter vivos conveyance to defendant of assets that would otherwise have been part of the estate, setting aside the will would be inappropriate redress and consequently a tort action is properly allowed.” Id at 219. The DeWitt court also cited Davison v. Feuerherd, 391 So.2d 799 (Fla. 2d DCA 1980), for the proposition that interference with expectancies from a revocable trust is a matter outside of p
robate jurisdiction and therefore there can be no adequate probate remedy when the tort involved a revocable trust. In summary, DeWitt is applicable in one and only one scenario: 1) 100% of the decedent’s assets are subject to probate, 2) the disinherited beneficiary had notice and a fair opportunity to challenge the Will during probate, and 3) the disinherited beneficiary failed to timely challenge the Will. If 1) above is not true, then there can never be an adequate probate remedy and DeWitt does not apply. More often than not, courts do not need to look any further than the first factor in DeWitt to know that a plaintiff could never have an adequate probate remedy.