Richard T. Archer, David B. Archer, Carol Archer Bugg, John v. Archer, Karen Archer Ball, and Sherri Archer v. T. Mark Anderson and Christine Anderson, as Co-Executors of the Estate of Ted Anderson

IN THE SUPREME COURT OF TEXAS
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NO. 16-0256
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RICHARD T. ARCHER, DAVID B. ARCHER,
CAROL ARCHER BUGG, JOHN V. ARCHER,
KAREN ARCHER BALL, AND SHERRI ARCHER, PETITIONERS,
v.
T. MARK ANDERSON AND CHRISTINE ANDERSON, AS
CO-EXECUTORS OF THE ESTATE OF TED ANDERSON, RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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JUSTICE JOHNSON, joined by JUSTICE LEHRMANN, JUSTICE BOYD, and JUSTICE BROWN,
concurring in part and dissenting in part, and concurring in the judgment.
I. It’s Too Soon
I agree with the Court’s conclusion that in this case, as was the situation in Kinsel v. Lindsey,
526 S.W.3d 411 (Tex. 2017), there is no need to allow the Archers1 to recover for harm they suffered
due to Ted Anderson’s intentional interference with the inheritance benefit that in reasonable
likelihood they were to receive from Jack Archer. That is because the Archers had adequate
remedies otherwise. Ante at __. But just as the Court did not see the need to completely reject the
cause of action in Kinsel, I see no need to do so today. To the contrary, I see the need not to do so.
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Five of Jack Archer’s nieces and nephews are parties to this suit—David B. Archer, Carol Archer Bugg, John
V. Archer, Karen Archer Ball, and Sherri Archer.
Accordingly, I join the Court’s judgment but dissent from its blanket rejection of the type of cause
of action the Archers asserted. The cause of action is designed to protect persons damaged by
another’s intentional interference with a benefit that the persons in reasonable likelihood would have
received as an inheritance absent the interference. The exact label and elements of such a cause of
action vary slightly from jurisdiction to jurisdiction, between the Restatement (Second) of Torts and
the Restatement (Third) of Torts, and commentator to commentator. See ante at __ (discussing
amendments to the Restatement); see generally Diane J. Klein, River Deep, Mountain High, Heir
Disappointed: Tortious Interference with Expectation of Inheritance—A Survey with Analysis of
State Approaches in the Mountain States, 45 IDAHO L. REV. 1 (2008) (discussing the adoption of the
cause of action in the various Mountain States). The Court refers to the cause of action generally
as “intentional interference with inheritance,” so for consistency and ease of reference, I will also
use that label.
The Court says that probate law protects a donor’s right in freely choosing how to dispose
of his or her property. Ante at __. Of course it does, at least to a large degree. But not always.
Where I part ways with the Court is over its conclusion that there are and will be no circumstances
under which a tort for intentional interference with inheritance need be available to Texans, even
though such a cause of action might be the only viable avenue of relief against someone who
wrongfully took or diverted assets in frustration of the asset owner’s intent. The Court’s
justification? “Because existing law affords adequate remedies for the wrongs the tort [of
intentional interference with an inheritance] would redress, and because the tort would conflict with
Texas probate law . . . .” Ante at __.
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I disagree with both reasons. As to the first reason, I disagree that the Court can realistically
predict that the law in its current state affords adequate remedies for all situations that might arise
in the future where bad actors wrongfully relieve elderly persons of assets intended for others. With
respect, the Court’s confidence in existing remedies is too great in light of human experience with
those among us who prey on the elderly. As to the second reason, the cause of action would not
conflict with probate law but would augment it when properly cabined in. Both probate law and the
cause of action for intentional interference with inheritance are designed to protect persons’ rights
to transfer their property to whomever they choose.
At a minimum, withholding a decision about whether to recognize or reject the tort until the
full effects of our decision in Kinsel can be seen and evaluated poses little downside. To begin with,
Kinsel and this case are the first two cases in which the Court has directly addressed the cause of
action. Next, the courts of appeals have considered the cause of action in only a relatively small
number of cases, and that small number does not portend a large number of such claims waiting to
be pursued. That is especially so in light of our explaining the limits of the cause of action in Kinsel.
And an increase in cases would be even less likely if, in this case, we were to follow and reinforce
Kinsel’s lead. Were we to do so, then between Kinsel and this case, we would have firmly clarified
just when the cause of action could be maintained: only if no other theory of liability or avenue of
relief is available. Under the circumstances, there likely would be little confusion about if and when
the cause of action would be viable.
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II. Diminished Capacity in the Elderly - A Growing Issue
Jack Archer’s stroke left him with diminished capacity to manage his affairs and susceptible
to manipulation by his long-time friend, Anderson. Anderson did not take advantage of Jack’s
condition to benefit himself. But whether his actions benefitted him is not the real question. The
question is who had the right to determine how Jack’s assets would be disposed of and who would
receive his estate. Here, the evidence supports the jury’s finding that Anderson did not, and that his
actions in relation to Jack, Jack’s assets, and Jack’s estate were tortious.
Jack’s condition of diminished capacity is not unusual among the aging population where
stroke, illness, or just the general infirmities of age can reduce the ability to manage one’s affairs
generally, properly care for one’s business and assets, and resist the influence of others over those
decisions. Such reduced capacity creates opportunities for the elderly to be taken advantage of, even
to the point of their being persuaded or coerced into taking actions that directly contradict earlier,
competently professed desires regarding disposition of their estates, as happened with Jack. The
problem is not inconsequential and it is growing. Texas has the third largest elderly population
among the states. See TEXAS DEMOGRAPHIC CTR., AGING IN TEXAS: INTRODUCTION 2–3 (2016)
(defining “older” or “elder” population as “those aged 65 years and older”). The elderly population
in Texas grew by 49.5% from nearly 2.1 million in 2000 to nearly 3.1 million in 2014. Id. at 3. This
type of growth will inexorably lead to more and more Texans being in the position in which Jack
and the Archer family found themselves—an older person with diminished capacity being taken
advantage of to the detriment of that person’s desires as expressed before his capacity became
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diminished, or if no desires had been expressed, then to the detriment of the natural objects of his
affections.
Texas is making progress in providing protections for its aging citizens and their assets. See,
e.g., TEX. EST. CODE § 1101.151 (providing for the court appointment of a guardian with full
authority over an incapacitated person upon a finding that the proposed ward is totally without
capacity to care for himself, manage his property, operate a motor vehicle, make personal decisions
regarding residence, and vote in a public election); TEX. GOV’T CODE § 155.102 (requiring
certification for certain guardians). This Court has brought issues relating to Texas’s expanding
elderly population to the forefront in several ways. Two of these are the establishment of a Working
Interdisciplinary Network of Guardianship Stakeholders (WINGS), and calling for the Texas
Judicial Council, the policy-making body of the judicial branch of government, to study issues
related to the aging population and make recommendations for reforming Texas’s approach to issues
involving our elderly.
But even with these efforts, experience teaches that where there is opportunity for persons
to take advantage of others, they will do so in inventive and unusual ways that simply cannot be
fully anticipated. In written testimony to the United States House of Representatives Committee on
Ways and Means dated March 22, 2017, David Slayton, the Administrative Director for the Texas
Office of Court Administration (OCA), reported that pursuant to a pilot project to assist Texas courts
in monitoring guardianship cases, OCA has reviewed over 13,600 guardianship cases in fourteen
Texas counties. According to Slayton’s testimony:
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1. As of December 31, 2016, there were 51,388 active guardianships in Texas; the
number had increased by 37% in the preceding five years; guardianships were one
of the fastest growing case types in the state; and the estimated value of estates under
guardianship in Texas exceeded 5 billion dollars.
2. The majority of guardians appointed in Texas are licensed attorneys, family
members, or friends of the ward.
3. Forty-three percent of guardianship cases were out of compliance with reporting
requirements of law, and the large majority of those cases were cases in which family
members of friends were guardians.
4. A review of accountings that were filed showed that on a regular basis there were:
unauthorized withdrawals from accounts, unauthorized gifts to family members and
friends; unsubstantiated and unauthorized expenses, and a lack of backup data to
substantiate accountings.
Examining the Social Security Administration’s Representative Payee Program: Joint Hearing on
Who Provides Help Before the Oversight Subcomm. and Social Sec. Subcomm. of the H. Ways &
Means Comm., 115th Cong. (2017) (statement of David Slayton, Administrative Director, Office
of Court Administration, Texas Judicial Branch).
The OCA study did not include the innumerable elderly for whom no formal guardianship
was established, as was Jack’s situation from August 1998 until December 1999. And even if formal
guardianship proceedings have shortcomings in protecting the elderly with diminished capacity and
their assets as is shown by the OCA’s study, how much more protection do the elderly with
diminished capacity need when there is no formal guardianship and no pretense of supervision such
as is provided for in a formal guardianship proceeding? In my view, much. And the family or other
persons who have expectations of inheriting from an older family member or friend are logically the
most likely to raise the question of whether improper advantage has been taken of an older person.
This case demonstrates how such a tort, properly limited, works to enforce the principle that when
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testators have freely made provision for disposition of their estates, those decisions will be protected
by the law.
III. An Expectancy Based on More Than Speculation
Before his stroke, Jack executed his 1991 will. No one questions the validity of that will,
which left the bulk of his estate to his family. The evidence is practically uncontroverted that the
1991 will was the last valid instrument expressing Jack’s freely adopted intended disposition of his
estate. So the distribution of Jack’s estate was effectively locked in before Anderson began
influencing Jack’s post-stroke decisions. Thus, the expectancy of inheritance the Archers had as to
Jack’s estate was more than a speculative hope. If, after Jack’s stroke, Anderson had convinced him
to transfer assets to a third party who then consumed or dissipated the assets before Jack died, or to
a third party who disappeared, and the Archer family did not discover the transfers until after Jack’s
death, then both Jack’s reasonable expectancy that his last valid will would control the disposition
of his estate, and the Archers’ reasonable expectancy of inheriting the bulk of his estate in
accordance with his last competent intentions would have been frustrated. Why? Because there
would have been no estate. Under those circumstances, the remedies of a constructive trust and
restitution would have been of little, if any, benefit to the Archers in enforcing Jack’s intent
regarding his estate. Thus, the existence of a gap-filling cause of action against Anderson for
interference with the Archers’ expectancy of inheritance might well have been the only viable
vehicle to remedy Anderson’s actions. Even if a remedy other than tortious interference with
expectancy of inheritance was viable in such a situation, then having the tortious interference
remedy as a backup would do no harm. And if, under all the facts, another remedy was not viable,
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the tortious interference cause of action might well afford relief where otherwise there would be
none. However, the situation where after his stroke, Jack’s estate was intentionally diverted or
dissipated and the perpetrators or assets gone, is not before us. In the case that is before us, the
Archers had, and took advantage of, adequate remedies available to them, other than a claim for
tortious interference with their reasonable certainty of inheriting from Jack in accordance with the
intentions he expressed in his 1991 will. That is also what the plaintiffs in Kinsel did. There we
noted that although this Court has not recognized a cause of action for intentional interference with
inheritance, some courts of appeals had—including in two cases where we denied petitions for
review. Kinsel, 526 S.W.3d at 422–23 & n.4 (citing Stern v. Marshall, 471 S.W.3d 498, 516 (Tex.
App.—Houston [1st Dist.] 2015, no pet.); Magana v. Citibank, N.A., 454 S.W.3d 667, 685 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied); In re Estate of Valdez, 406 S.W.3d 228, 233 (Tex.
App.—San Antonio 2013, pet. denied); In re Estate of Russell, 311 S.W.3d 528, 535 (Tex. App.—El
Paso 2009, no pet.)). Nevertheless, we saw “no compelling reason to consider a previously
unrecognized tort if the constructive trust [awarded in the case] proved to be an adequate remedy.”
Id. at 424 (noting that a relevant factor when considering an unrecognized cause of action is the
existence and adequacy of other protections). We went on to conclude that the constructive trust
provided redress for the injuries, so the facts did not warrant enlarging the body of Texas’s tort law
by recognizing a new cause of action. Id. at 425.
In regard to the intentional interference with expectation of inheritance question, this case
is postured similarly to Kinsel. The Court concludes that the Archers had an adequate remedy
because they ultimately received their inheritance, albeit minus attorney’s fees and a settlement with
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the charities. Ante at ___. But rather than leaving open the issue of whether to recognize the cause
of action as we did in Kinsel, the Court changes course and closes that door. It does so even though
that door might, in some instances, provide the only avenue to relief for parties who suffer loss at
the hands of actors who intentionally—not merely negligently—caused the loss. The Court
indicates that we should do so now in order to eliminate confusion based on conflicting decisions
in the courts of appeals in Houston. Ante at __. The Court points out that after our opinion in Kinsel
issued, the Court of Appeals for the First District recognized the cause of action in Yost v. Fails, 534
S.W.3d 517, 530 (Tex. App.—Houston [1st Dist.] 2017, no pet.), while the Court of Appeals for the
Fourteenth District declined to do so in Rice v. Rice, 533 S.W.3d 58, 63 (Tex. App.—Houston [14th
Dist.] 2017, no pet.). But in Yost, the first court did not award damages for intentional interference
with an inheritance. 534 S.W.3d at 531–33. So even taking these two cases into consideration, I
am confident that Texas courts are fully capable of prospectively applying the guidance in Kinsel
regarding intentional interference with inheritance cause of action—guidance that would be
emphasized and more fully explained in this case should we choose to follow the same path we took
in Kinsel.
The Court says that a judicially recognized gap-filler cause of action is unnecessary because
statutory probate law provides adequate remedies. Ante at __. My overriding concern is that neither
we nor the courts of appeals have considered a sufficient spectrum of factual circumstances for us
to confidently conclude that foreclosing the cause of action will not leave parties without any avenue
of relief against those whose actions intentionally and wrongfully divest an elderly person with
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diminished capacity of assets and thus interfere with that person’s last-expressed true intentions
about the disposition of his or her property.
The Court addresses and dismisses four fact scenarios that commentator Diane J. Klein
argues necessitate the recognition of the tort of intentional interference with an inheritance. Ante
at ___ (citing Diane J. Klein, A Disappointed Yankee in Connecticut (or Nearby) Probate Court:
Tortious Interference with Expectation of Inheritance—A Survey with Analysis of State Approaches
in the First, Second, and Third Circuits, 66 U. PITT. L. REV. 235, 247 (2004)). While
acknowledging that these scenarios are “by no means an exhaustive list,” the Court concludes that
it is “unable to imagine a situation in which the lack of a full remedy is not a legislative choice or
a matter for targeted legislative amendments to probate law and procedures.” Ante at ___. But even
allowing for what the Court describes as the Legislature being “active and creative in protecting the
vulnerable,” ante at ___, it is beyond reasonable belief that all the possible circumstances and
designs of persons focused on taking advantage of those with diminished capacity have been
anticipated, or are even capable of being anticipated. After all, that is the reason common law
causes of action and remedies have arisen—although I do not dispute that probate law will be
applicable and provide an adequate remedy in many situations.
Nevertheless, under certain circumstances probate proceedings may not be a viable option
for relief to a would-be beneficiary. For example, such a proceeding might offer no relief in a case
where the statutory probate limitations period expired before the would-be beneficiary learned of
the testator’s death, as was the situation in Schilling v. Herrera, 952 So. 2d 1231, 1237 (Fla. Dist.
Ct. App. 2007) (holding that the plaintiff’s tort claim was not barred by the plaintiff’s failure to
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appear in a probate proceeding when the defendant concealed the testator’s death until after the
expiration of the statutory limitations period). And another example might be where the wrongful
interference occurs with a decedent’s nonprobate assets, such as payable on death accounts or life
insurance proceeds. See Valdez v. Ramirez, 574 S.W.2d 748, 750 (Tex. 1978). But as I have noted
above, experience teaches that it is impossible to anticipate the limitless ways in which unscrupulous
persons can take advantage of others, in this instance elderly persons. Indeed, if those ways could
be anticipated, then preventative measures would already have been devised, publicized, and widely
adopted. And there would be negligible (well, at least a reduction of) fleecing of our older
population. But that is not going to happen. So long as humans with human traits and desires exist,
there will be those among us who devise new and more effective ways of taking advantage of the
vulnerable elderly who have assets.
The Court recognizes that a constructive trust can provide a remedy for unfairness. Ante
at ___. But the typical remedy of imposing a constructive trust resulting from a successful
restitution action is not always available or may not provide an adequate remedy, as this Court has
recognized. While we have stated that “[t]he specific instances in which equity impresses a
constructive trust are numberless,” Pope v. Garrett, 211 S.W.2d 559, 560 (Tex. 1948) (quoting 4
POMEROY’S EQUITY JURISPRUDENCE § 1045, at 97 (5th ed. 1941)), we have also acknowledged that
“the reach of a constructive trust is not unlimited.” KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70,
87 (Tex. 2015). The imposition of a constructive trust generally requires the requesting party to
establish (1) a breach of a special trust or fiduciary relationship or actual or constructive fraud, (2)
unjust enrichment of the wrongdoer, and (3) an identifiable res that can be traced back to the original
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property. Id. As applied in the inheritance context, the would-be beneficiary must trace the
fraudulently obtained property to funds received by the wrongdoer. See Meadows v. Bierschwale,
516 S.W.2d 125, 133 (Tex. 1974) (stating that “[w]hen property subject to a constructive trust is
transferred, a constructive trust fastens on the proceeds”). However, if the property has been
dissipated or traceable funds have been depleted, there will be nothing remaining upon which to
impose a constructive trust. A judgment obtained from a tort action, on the other hand, would
provide the expectant beneficiary with at least potential redress.
Some states have recognized the tort of interference with inheritance and have adopted what
are seemingly pragmatic and workable standards. See, e.g., Doughty v. Morris, 871 P.2d 380, 384
(N.M. Ct. App. 1994) (recognizing the tort of tortious interference with an expected inheritance and
requiring a plaintiff to prove “(1) the existence of an expectancy; (2) a reasonable certainty that the
expectancy would have been realized, but for the interference; (3) intentional interference with that
expectancy; (4) tortious conduct involved with interference, such as fraud, duress, or undue
influence; and (5) damages”); DeWitt v. Duce, 408 So. 2d 216, 218 (Fla. 1981) (discussing a claim
for wrongful interference with a testamentary expectancy and when such a claim is considered a
collateral attack on a probate decree). Of course, the elements of a cause of action in Texas would
not necessarily mirror the elements of the action in other states. But the experience of other states
can give focus and guidance.
In the end, it is hard to overestimate the creativity of those seeking to obtain or redirect
money or assets that belong to another. Members of the increasing aging population with money
and assets are ripe targets for predators. Said another way, the current target-rich environment for
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those who would prey on our elderly is expanding. I would not now foreclose the option of a tort
action for intentional interference with inheritance to be used in circumstances where no alternative
adequate remedy is available, and the tort would provide the only avenue for relief. The appropriate
situation for recognizing the tort did not present itself in this case. However, the past does not
control the future— it only undergirds it. The number of cases in which the cause of action has been
asserted in the past indicates the potential for an increase in the number of cases asserting such
claims. And if we were to use this case to reinforce what we said in Kinsel, it would surely foreclose
most claims for intentional interference with inheritance.
Finally, the persons benefitted by the Court’s action today are those who prey on some of
the most vulnerable among us—seniors who have worked to accumulate estates to care for
themselves in their twilight years, and to at death, either pass those estates on to their loved ones or
distribute however else they might decide. We should be both sensitive to the needs of that
vulnerable segment of the population and protective of their right to distribute the fruit of their life’s
work to whomever they competently and validly choose. I would not run the risk of shielding those
who prey on them from being held responsible for their actions.
IV. Conclusion
I join the Court’s judgment affirming that of the court of appeals. But I respectfully dissent
from the Court’s barring the possibility of tort relief to those persons damaged by another’s
intentional interference with a benefit that the person in reasonable likelihood would have received
as an inheritance. I would follow the approach we took in Kinsel. That is, I would go no further
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than to hold that we need not recognize the cause of action in this case and reserve judgment about
whether to completely foreclose it.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: June 22, 2018
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