Firestone v. Galbreath

616 N.E.2d 202, 67 Ohio St. 3d 87, 1993 Ohio LEXIS 1606

Opinions

With regard to certified question No. 1, the federal court order uses the language, “ * * * with expectancy or inheritance * * *[.]” (Emphasis added.) The briefs of the parties present different versions of this phrase: Petitioners Jeffrey Firestone and David Firestone state, “with expectancy of inheritance * * * ” (emphasis added); respondents Daniel M. Galbreath et al. use the language, “with expectancy of an inheritance * * * ” (emphasis added); respondent Bolon, Hart & Buehler, Inc. states, “with an expected inheritance” (emphasis added); and respondents Bricker & Eckler et al. track the language of the federal court order to-wit, “with expectancy or inheritance” (emphasis added).

Assuming that the various versions of certified question No. 1 are all meant to present exactly the same issue,² we answer this certified question in the affirmative (“yes”). See, generally, Morton v. Petitt (1931), 124 Ohio St. 241, 177 N.E. 591. We find particularly instructive Restatement of the Law 2d, Torts (1979) 58, Section 774B, which provides:

“Intentional Interference with Inheritance or Gift.

“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.”

We also find Comment d to Section 774B, at 59, enlightening.

In response to certified question No. 2, we advise that any person who can prove the elements of the tort of intentional interference with expectancy of inheritance has the right to maintain the cause of action. We further advise that the elements of the tort are: (1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference by a defendant(s) with that expectancy of inheritance; (3) conduct by the defendant involving the interference which is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would have been realized, but for the interference by the defendant; and (5) damage resulting from the interference.

While the parties have raised other issues, such as exhaustion of other possible remedies, the federal court has not certified these issues to us nor do we deem it necessary to discuss those issues to resolve the two questions certified to us by the federal court. Accordingly, we confine our answers to the foregoing.

A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., and Evans, J., concur in part and dissent in part. John R. Evans, J., of the Third Appellate District, sitting for Wright, J.

Footnotes

2

. Our assumption is that “expectancy of inheritance” is correct.