APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed. (Super. Ct. No. 37-2008-00150989-PR-PW-CTL).
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
This appeal follows the successful demurrer of Carlyn Munn Briggs (Carlyn) and Michael D. Briggs (Michael) to the petition of Carlyn's brother James Munn (James) for relief from interference with an inheritance expectancy, a tort that has never been recognized in California. James alleges his sister and brother-in-law interfered with his expected inheritance by unduly influencing their mother Janell Munn (Janell) to sign a codicil to her will that gave $1,000,000 each to Jana Munn Briggs (Jana) and Jack Munn Briggs (Jack), Janell's grandchildren and the children of Carlyn and Michael. Janell, however, did not make any gift of her estate to James's children.
James did not challenge the validity of the will and codicil admitted to probate because the codicil contained a no-contest clause. That clause specified that if James unsuccessfully contested the validity of the codicil, everything left in the survivor's trust created by Janell after the death of her husband Henry Lusk Munn (Henry) would pass to Carlyn.
James instead filed a petition in the probate court against Carlyn and Michael alleging they tortiously interfered with his inheritance expectancy (petition for tortious interference with inheritance) when they "procured the execution [of the codicil] by exerting undue influence on Janell." The probate court sustained without leave to amend the demurrer of Carlyn and Michael to the interference petition.
As we explain, we conclude James had an adequate remedy in probate to assert his fraud/undue influence claim against Carlyn and Michael. As such, under the present circumstances we decline to recognize a cause of action in tort for interference with an expected inheritance. Judgment affirmed.
FACTS AND PROCEDURAL BACKGROUND
The relevant facts are not in dispute. In 1983, Henry and Janell created the Munn Family Trust (the trust). Henry and Janell had two children, James and Carlyn. Henry died in December 2006.
On Henry's death, the trust created three separate trusts, including a "survivor's trust" for the benefit of Janell. As the surviving spouse, the trust provided Janell with a testamentary power of appointment over the property in the survivor's trust.
Janell also executed a will in 1983. After allocating personal items (e.g., jewelry, clothing, furniture and automobiles) and making provision for the payment of taxes, the will gave the residue of Janell's estate to the trust. Janell also nominated Henry as her executor. If Henry was unable to act as executor, the will designated James, Carlyn and Michael (her son-in-law), or the survivor of them, as executor.
At the heart of the instant dispute between James and Carlyn is a codicil that Janell executed on December 22, 2007. Article II of the codicil provides: "Under my power of appointment in the [trust], I give one million dollars to my granddaughter Jana Munn Briggs and one million dollars to my grandson Jack Munn Briggs. The funds shall be given in trust as provided in Article Seventh c(9) of the [trust] to Jana or Jack if she or he, respectively, is under the age of thirty-one years at the time of my death."
Article III of the codicil states: "I [Janell] choose not to make a gift to my other grandchildren under my power of appointment because they have been much closer to their maternal grandparents, who have or can make gifts to them if they choose."
Article IV is the no contest clause. It provides: "If my son James... or any of his issue, singly or in conjunction with any other person or persons, contests in any court the validity of this codicil or my will or of any trust receiving property under this codicil, or shall seek to obtain an adjudication in any proceeding in any court that this codicil or any of its dispositive provisions are void, or otherwise seeks to void, nullify, or set aside any of the provisions of this codicil, then under my power of appointment in the [trust], I give all remaining funds in the [trust]... to my daughter, Carlyn... (or her children if she predecease me)."
The codicil was witnessed by Lynne Thompson and Sylvia So, who declared under penalty of perjury Janell signed the codicil in their presence, Janell was of "sound mind" and Janell was "under no constraint or undue influence" when she executed the codicil. Janell passed away on January 23, 2008.
On February 14, 2008, Michael filed a petition in the San Diego County Superior Court seeking admission of the will and codicil to probate (the probate petition). As noted ante, James did not object to the validity of the will or codicil, or challenge the $1 million gifts to Jana and Jack. James instead filed his petition for tortious interference with inheritance against Carlyn and Michael.*fn1
In that petition, James alleged that beginning in 2005 Janell and Henry lived in an assisted living facility, they both suffered from physical and mental difficulties and their conditions worsened over time. He further alleged in 2005 Janell's short-term memory "ranged from fair to poor," she could not walk without assistance and after Henry died in December 2006, her "mental alertness and memory became progressively worse and deteriorated at an ever-increasing rate...."
James alleged Janell was "almost entirely reliant" on Carlyn and Michael in connection with her "personal and mental affairs," was allowed to exercise "virtually no discretion" in such matters, and Carlyn "engaged in behavior that was manipulative and mentally and emotionally abusive towards Janell." Specifically, he alleged Carlyn kept Janell's grandchildren from visiting Janell when Carlyn was upset with Janell, and Carlyn told Janell that if she did not behave better, Carlyn would not scatter her ashes alongside those of her husband Henry.
James also alleged Michael prepared the codicil with the no contest clause a month before Janell passed away and Carlyn and Michael misled Janell to believe that James's children had a "closer relationship" with their maternal grandparents " 'who have or can make gifts to them ...