The law provides remedies for the potential beneficiaries of a decedent who has his or her last wishes interfered with prior to death. However, proving a case, even where liability is clear, can be troublesome for a lawyer unfamiliar with probate law. Under Florida law, a prima facie case for both conversion and tortious interference with expected inheritance requires the plaintiff(s) to prove damages in order for there to be a recovery.
In a recent Florida Third District Court of Appeal case, Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012), two daughters brought suit against their stepmother for the manipulative acts she committed during their father’s dying days. At the trial level, the daughters called several witnesses to prove damages, including their father’s accountant. During the accountant’s testimony, he stated that the value of the assets that the stepmother interfered with was “over a million dollars” and “in the millions.” Two other witnesses, including the stepmother, indicated that value of the assets was over a million dollars. Despite multiple witnesses giving testimony about the value of the assets in question, none were able to give a better estimate than “over a million dollars.”
The daughters argued that they were unable to ascertain a more specific value of the assets because they never received, even though they had requested, documents related to the value of the decedent’s assets. The Third DCA stated that this was the fault of the counsel of the daughters for acquiescing to the non-production of documents. The appellate court noted that there are legal avenues, such as a motion to compel, that are in place to force production of these documents. Judge Shepherd, author the Third DCA opinion, also noted that the daughters never subpoenaed the decedent’s accountant for records that would show the value of the assets. Finally, the court noted that the daughters were aware of each asset, and thus, could have retained experts to calculate the value of each asset. The court went on to state that the daughters’ counsel was not the “but for” cause of the daughters’ failure to present a prima facie case to the jury, even if the lawyers violated some legal or ethical obligation to their clients.
Unfortunately for the two daughters, there is a relatively high “reasonable certainty” requirement that is a necessary under Florida law when proving the damages element of conversion and tortious interference. Under this high threshold, there can be no recovery unless the amount of damages is established with a reasonable degree of certainty. While damages do not need to be proven down to the exact dollar amount, they cannot be based on conjecture or guesswork. Because the daughters did not demonstrate to the jury that the assets were worth more than a million dollars, they lost on their claims for conversion and tortious interference.
The result of the Saewitz case leads to the following conclusions: (1) a prima facie case for conversion and tortious interference is not met until damages have been established with some “reasonable certainty;” (2) damages have to be relatively precise, using some type of calculation based on records or from an expert who can estimate the value of assets to some reasonable degree of certainty; and (3) it is possible that attorneys may be held liable in a professional context for their failure to obtain documents that can establish damages, even if their conduct is not seen as the “but for” cause of a plaintiff’s failure to obtain a reasonably certain damage calculation.
If you believe that you or someone you know has a claim for conversion or tortious interference with expected inheritance, it is extremely important that an experienced attorney is consulted in order to avoid problems such as those discussed above. The team at Chepenik Trushin LLP is knowledgeable and skilled in such cases. Please feel free to contact us for an initial consultation.