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Federal courts have the power to hear a claim of “tortious interference with inheritance” by plaintiffs who allege they were cheated out of their fair share of a dead woman’s estate because such a claim is not barred by the “probate exception” to federal diversity jurisdiction, the 3rd U.S. Circuit Court of Appeals has ruled. In Golden v. Golden, a unanimous-three judge panel revived an action brought by two women who claim in the suit that they were each promised a one-third share of the estate in Irene King’s original will, but that King’s brother allegedly conspired with a nurse during her final days to make changes to the will that reduced their shares to mere pittances. The ruling is significant victory for plaintiffs attorneys Julia Morrow and Joel W. Todd of Dolchin Slotkin & Todd because the appellate court refused to take a broad reading of the probate exception. Although the panel concluded that U.S. District Judge David S. Cercone of the Western District of Pennsylvania was correct in barring all claims for fraud, undue influence, forgery and breach of fiduciary duty, it found that Cercone went too far when he also dismissed claims of slander and tortious interference with inheritance. “Pennsylvania law permits actions for tortious interference with inheritance in the courts of general jurisdiction and a federal court must adjudicate such claims just as [it] would any other tort claim brought pursuant to our diversity jurisdiction,” U.S. Circuit Judge Michael Chertoff wrote. Chertoff, in an opinion joined by U.S. Circuit Judge Samuel A. Alito Jr. and visiting Senior U.S. District Judge Dickinson R. Debevoise of the District of New Jersey, traced the history of the probate exception back to 1875. The U.S. Supreme Court, Chertoff said, has held the probate exception “extends both to matters of ‘pure’ probate and to matters ‘ancillary’ to probate.” Distilling the case law, Chertoff found that three general principles define the contours of the probate exception. “First, the federal courts lack the power to actually probate a will,” Chertoff wrote. “Second, where a will has already been probated, permitting an action that seeks, expressly or in fact, to assail or contradict a judgment of the probate court generally constitutes an impermissible interference with the probate,” Chertoff wrote. But despite the probate exception, Chertoff found that under the third principle, “federal courts may nevertheless exercise jurisdiction over an otherwise barred probate-related cause of action if the action would be maintainable … in the state courts of general jurisdiction.” Applying those principles, Chertoff found that Cercone was correct in dismissing the plaintiffs’ claims for fraud, undue influence, forgery and breach of fiduciary duty as executor of a will “because recovery on those claims would not be otherwise maintainable in the Pennsylvania courts of general jurisdiction, would be contrary to a determination of the probate court, and would impermissibly interfere with the probate proceedings.” But Cercone should have allowed the plaintiffs’ claims of slander and tortious interference with inheritance to proceed, Chertoff found, because Pennsylvania courts would allow such claims to be brought post-probate in a court of general jurisdiction. In the suit, plaintiffs Leah Golden and the estate of Helen Earwood claim they were cheated out of their fair share of Irene King’s estate by King’s brother, David S. Golden. Leah Golden was King’s sister-in-law and Earwood was her sister. The suit alleges that the original terms of King’s trust stated that her estate was to be distributed in equal shares to Earwood, Leah Golden and David Golden. But when King’s health began to deteriorate, the suit says, David Golden began exercising increasing control over his sister and her finances. In the fall of 1999, David Golden allegedly fired King’s professional home care services and hired Darlene Koposko and Koposko’s mother and daughter to take over. The suit says Earwood and Leah Golden attempted to visit King, but were rebuffed by David Golden. By June 2000, the suit says, King was bedridden, experiencing excruciating pain and unable to maintain bodily functions. She was being medicated for her pain and was prescribed hospice care. It was during that period, the suit says, that Koposko claims King dictated alterations to her trust documents that reduced Leah Golden’s share from one-third to $5,000, and reduced Earwood’s share to $10,000. King died less than two weeks later, the suit says, and her estate was valued at about $189,000. In their federal suit, Leah Golden and Earwood’s estate allege that their shares under King’s trust were reduced either as a result of “outright forgery,” or as a result of David Golden’s wrongful influence over, or slanderous statements to, King. Koposko was also named as a defendant in the suit. Among other things, the suit alleges that David Golden falsely told King that Earwood was a gambler and had squandered her own money. In March 2003, Cercone dismissed the entire case, finding that the federal courts lacked subject matter jurisdiction over all the claims due to the probate exception. On appeal, defense attorneys Christopher M. Tretta of Yost & Tretta in Philadelphia and James T. Davis and Melinda K. Dellarose of Davis & Davis in Uniontown argued that Cercone was correct because the probate exception applies categorically to all of the plaintiffs’ claims. The plaintiffs’ lawyers insisted that the opposite was true and that since the case involved a trust — and not a will — the probate exception should not apply. The 3rd Circuit rejected both arguments. Chertoff found that the plaintiffs were wrong because their argument “mistakes the scope of the probate exception, which is not limited to the formal act of probating a will.” Trusts are covered by the probate exception, Chertoff said, because it “bars a federal court from entertaining both matters of ‘pure’ probate and matters ‘ancillary’ to probate.” But the defense lawyers were also wrong, Chertoff found, because the probate exception does not bar a federal court from hearing a claim that “will have no effect on the past probate of a will.” The slander claim survives, Chertoff found, because the relief it seeks can be granted without challenging the probate court’s rulings or the validity and enforceability of its distributions. “A determination by the [federal] court that Earwood may have been slandered and damaged … is in no way contrary to the Orphans’ Court’s determination that the will, the trust, the addendum and their combined distributive scheme are valid and enforceable,” Chertoff wrote. Significantly, Chertoff also found that Cercone should have entertained jurisdiction over both plaintiffs’ claims of tortious interference with inheritance. “Despite its entwinement with probate, a cause of action for tortious interference with inheritance is one brought in personam,” Chertoff wrote. “It is no different from any other tort — the plaintiff is asserting that some tortious action on the part of the defendant has caused him or her damage.” Since the Pennsylvania courts recognize the tort of tortious interference with inheritance and allow such claims to be filed in courts of general jurisdiction, Chertoff said, a federal court sitting in diversity must hear such a claim. Chertoff said he recognized that a claim of tortious interference of inheritance “implicitly contends” that the decedent’s intent was “something other than what the Orphans’ Court found it to be.” Nonetheless, Chertoff said, “this is not the same as a challenge to the validity, enforceability or interpretation of a testamentary document passed on by the Orphans’ Court.” Under Pennsylvania law, Chertoff found, “the elements of tortious interference with inheritance do not call into question the probate court’s determination of testamentary document validity or enforceability.” As a result, Chertoff said, “the probate of a will … does not prevent a party from bringing an action for tortious interference with inheritance in the Pennsylvania courts of general jurisdiction.”

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