In re Certification of A Question of Law from United States District Court

          ARGUED ON NOVEMBER 13, 2018

          ORIGINAL PROCEEDING

          DANIEL R. FRITZ, II MARY A. AKKERMAN TIMOTHY R. RAHN of Ballard Spahr LLP Sioux Falls, South Dakota Attorneys for plaintiff and non-moving party.

          PAUL T. VAN OLSON SHEILA S. WOODWARD of Marlow, Woodward & Huff, Prof. LLC Yankton, South Dakota Attorneys for defendant and moving party.

          OPINION

          JENSEN, JUSTICE

         [¶1.] On December 8, 2017, Thomas Briggs filed a complaint against his sister, Judith Briggs, in the United States District Court for the District of South Dakota, alleging claims for tortious interference with inheritance or expectancy of inheritance, breach of fiduciary duty, and negligence. The district court dismissed the claims for breach of fiduciary duty and negligence. The district court then certified the following question to this Court on the remaining cause of action.

         Whether South Dakota recognizes tortious interference with inheritance or expectancy of inheritance.

         [¶2.] In answer to the certified question from the district court, we decline to recognize a cause of action for tortious interference with inheritance or expectancy of inheritance.

         Background

         [¶3.] Thomas's federal complaint alleges that Thomas and Judith's parents, Elizabeth and Willard Briggs, each created a revocable living trust and will in 1995. Thomas attached a copy of Willard's trust to the complaint showing he and Judith were treated equally as beneficiaries, and he alleges on information and belief that he was also named as an equal beneficiary in Elizabeth's trust and will. Further demonstrating Willard's and Elizabeth's benevolent intent toward their children, Thomas alleges his parents deeded land they owned in Illinois to Thomas and Judith in equal shares, subject to a retained life estate.

         [¶4.] In 1995, Willard gifted Judith approximately 395 acres of South Dakota agricultural land to assist her as she started in the farming and ranching business. Thomas did not receive a similar gift. Thomas alleges that Elizabeth and Willard always intended their estate planning to include a later distribution to him to equalize the gift to Judith.

         [¶5.] In 1997, Willard passed away, and Elizabeth became trustee of Willard's trust. According to Thomas's federal complaint, as Elizabeth's health declined, Judith developed a confidential relationship with her and became her primary caretaker. Thomas further claims Judith began isolating Elizabeth from others and began to control Elizabeth's personal and financial decisions. He identified that he last spoke to Elizabeth in 2006.

         [¶6.] Thomas alleges Elizabeth amended her trust on January 16, 2009, despite her declining health, and removed Thomas as a beneficiary. She amended the trust a second time on January 3, 2012, removing Thomas's daughter as a beneficiary. Elizabeth passed away on July 16, 2013. Thomas claims that he was unable to participate in the funeral services because Judith failed to inform him of Elizabeth's passing. He further claims he first learned of Elizabeth's death on approximately August 15, 2013, when he received a letter from Elizabeth's attorney explaining that Elizabeth had died and prior to her death had disinherited him. This letter also provided Thomas with notice of the time allowed for commencing judicial proceedings under SDCL 55-4-57(a)(2).^[1]

         [¶7.] More than eighteen months after Elizabeth's death, Thomas filed a petition in state circuit court challenging the trust amendments. He argued the amendments were invalid because Elizabeth lacked testamentary capacity and was unduly influenced by Judith who was a beneficiary and trustee. In particular, he asserted Elizabeth was unable to read either of the amended trusts when she signed them at ages 89 and 92, respectively, due to her poor eyesight. Thomas also alleged that Judith breached her fiduciary duties as trustee; however, Thomas did not name Judith as a party defendant or commence an action against her in her individual capacity.

         [¶8.] After the circuit court dismissed Thomas's petition as untimely under SDCL 55-4-57(a), Thomas appealed to this Court. We affirmed, determining that the petition was time barred. See In re Elizabeth A. Briggs Revocable Living Trust (Briggs I), 2017 S.D. 40, ¶ 13, 898 N.W.2d 465, 471. We also held that the circuit court lacked in personam jurisdiction to review the claim that Judith breached her fiduciary duty because Thomas did not commence the action against Judith in her individual capacity or move to join her as a party defendant. Id. ¶ 14. Thomas subsequently filed ...