MEMORANDUM OF DECISION

PECK, J.

MOTION TO STRIKE

The plaintiffs, Diane DePasquale, Christine Larkin and Mary Hennessey Iyer (collectively "plaintiffs"), bring this action against the defendants, Martin Hennessey and Maureen Hennessey (collectively "defendants"), their brother and sister-in-law, respectively, arising out of a dispute concerning the estate of their aunt. The revised complaint, filed on February 9, 2010, is set forth in two counts. Count one alleges the following facts. On August 11, 2008, Mary P. Kelly (the decedent), died of natural causes in the Alzheimer's unit of the nursing home where she had been a resident for some time. Kelly was an aunt to all of the parties on both sides in this action. Prior to her death, Kelly was under the undue influence of her nephew, the defendant Martin Hennessey, who encouraged her to make transfers and to execute numerous documents concerning her assets and estate, including a purported last will and testament and an amendment to an inter vivos trust, when she lacked the legal capacity to do so.

The plaintiffs also allege that, prior to February 2008, during a time when Martin Hennessey was aware that the plaintiffs were intended beneficiaries under Kelley's then existing will and trust and expecting to inherit from her estate, Martin Hennessey developed a plan to systematically obtain and manipulate Kelley's assets for his own purposes. Martin Hennessey designed and executed a plan to transfer all of Kelly's assets (allegedly exceeding $1,000,000), in such a manner that no probate estate would need to be opened, and, upon Kelley's death, filed forms with the Probate Court stating that no probate administration was required due to the status and extent of the decedent's assets. Count two incorporates all the allegations of count one and further states that Martin Hennessey approached the plaintiffs prior to Kelly's death and sought their consent to disburse monies belonging to Kelly which the plaintiffs declined to give because of their belief that the money was needed for Kelly's care and comfort.

In count one, the plaintiffs allege that the actions of the defendants tortiously interfered with their expectancy of an inheritance from their aunt by exercising undue influence over her, causing her to make certain transfers that diverted the assets of the estate to the defendants' benefit, such that it would not be subject to probate administration, and causing the plaintiffs special loss and damage. The second count incorporates all the allegations of the count one and ostensibly attempts to set forth a claim of promissory estoppel arising out of the plaintiffs' objection to certain disbursements that the defendant Martin Hennessey made from the estate prior to Kelly's death.

The defendants have moved to strike both counts of the plaintiffs' revised complaint, on the grounds that the first count fails to state a cognizable cause of action in that it "is a will contest over which the Probate Court has original and exclusive jurisdiction and because there is no recognized cause of action under these circumstances for tortious interference with an expectancy of inheritance." As to the second count, the defendants state that the revised complaint fails to set forth a claim of promissory estoppel or negligent representation.

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). Additionally, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). Nevertheless, a motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

For the reasons that follow, the court denies the motion to strike as to count one and grants it as to count two.

Count 1

The defendants argue that in the first count, the plaintiffs are attempting to litigate a will contest and that such a claim must first go through probate. The plaintiffs counter that the first count, rather than dealing with a will contest, concerns inter vivos transfers that were made by the decedent under the undue influence of the defendants, which depleted the assets of the decedent's estate. The court agrees with the plaintiffs.

A fair reading of the allegations set forth in support of count one are clearly addressed to actions of the defendants in exercising undue influence over the decedent, as those actions relate to her last will and testament, a third amendment to a trust and several other inter vivos actions and transfers. See Revised Complaint, ¶¶ 4-10. Further, under all the circumstances alleged, a will contest might not be available to the plaintiffs and would not provide them with a sufficient remedy.

The defendants also moved to strike count one on the ground that a cause of action for tortious interference with an expectancy of inheritance has not been recognized by our appellate courts. While it is true that our appellate courts have not specifically established this cause of action, there are compelling reasons to believe that, given a fact pattern similar to the one set forth by the plaintiffs herein, such a cause of action would be adopted. First, in Hall v. Hall, 91 Conn. 514, 519-20, 100 A. 441 (1917), the plaintiff therein attempted to set forth a claim of tortious interference with an inheritance from his father, which was defeated by a demurrer for the sole reason that the claim in question constituted a collateral attack on a decree of probate. Specifically, the plaintiff sought damages based on allegations that he was wrongfully deprived of his prospective inheritance from his father's estate by reason of the undue influence and duress of his brothers and sister, the defendants. In dicta, the Supreme Court stated that, but for the fact that the challenged will had been previously determined to be valid by the probate court, in a proceeding to which the plaintiff was a party, the plaintiff therein would have stated "a good cause of action." See Hall v. Hall, supra, 91 Conn. 519-20.

Second, Section 774B of the Restatement Second of Torts, an authority often relied on by our appellate courts in outlining the contours of tort law in our state, provides for a claim of tortious interference with an inheritance under circumstances similar to those of the more established cause of action of tortious interference with contract or business expectancy. Section 774B, which is entitled Interference with Other Forms of Advantageous Economic Relations, provides: "One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift." 4 Restatement (Second), Torts § 774B, p. 58 (1979). Comment (a) to § 774B provides that "[t]his section represents an extension to a type of noncontractual relation of the principle found in the liability for intentional interference with prospective contracts . . ." Id. The similarity of the elements of a cause of action for tortious interference with a business expectancy and a cause of action for interference with an expectancy of inheritance, coupled with the Second Restatement's adoption of the latter claim, furthers this court's conviction that interference with expectancy of inheritance is likely to be recognized by our appellate courts as a valid cause of action in the foreseeable future. See generally, R.L. Newman J.S. Wildstein, Tort Remedies in Connecticut (1996) (2010 Supp.) Chapter 21, Interference with Contractual or Beneficial Relationships, §§ 21-2, 21-3, 21-3(a)-(d), pp. 294-95.

Third, a claim of interference with an expectancy of inheritance is consistent with other causes of action and remedies that have been recognized under Connecticut law and public policy, including the established remedy of imposing a constructive trust to protect the interests of persons who have no more than an expectancy of receiving a benefit, such as when a decedent is prevented, because of fraud, from making a particular testamentary disposition. Lieberman v. Rogers, 40 Conn.Sup. 116, 119, 481 A.2d 1295 (1984). In addition, as noted in the plaintiffs' memorandum in opposition to the motion to strike, the tort of interference with an expectancy of inheritance has been recognized by numerous other jurisdictions. (Plaintiffs' Objection to Motion to Strike, pp. 15-16.)

Finally, given the established elements of a cause of action for tortious interference with contractual or beneficial relationships, the likely elements of a claim for tortious interference with an expectancy of inheritance are as follows: 1) the existence of an expected inheritance; 2) the defendant's knowledge of the expectancy; 3) tortious conduct by the defendant, such as fraud or undue influence; and 4) actual damages to the plaintiff resulting from the defendant's tortious conduct. The plaintiffs have alleged facts that are more than sufficient to satisfy each of the likely elements of a cause of action for interference with an expectancy of inheritance as well as undue influence.

Count Two CT Page 17088

CONCLUSION

For the foregoing reasons, the motion to strike count one is denied, and the motion to strike count two is granted.