Thursday, May 1, 2014
Jason L. Hortenstine (J.D. Candidate, Southern Illinois University School of Law, May 2013) recently published an article entitled, The Tortious Loss of Expectancies, A Lost Opportunity for Deterrence, And the Light at the End of the Tunnel, In Re Estate of Ellis, 923 N.E.2D 237 (Ill. 2008). Provided below is the beginning of his article:
Although tortious interference with an expectancy has been the subject of evaluation as far back as 1917, it was not until 1981 that the cause of action was recognized in Illinois. Over time, the tort has gradually gained widespread recognition in the United States. However, whether tortious interference with an expectancy is a separate cause of action or merely a last recourse when a probate remedy would be inexistent or inadequate is dependent upon jurisdiction. In Illinois, courts recognize the tort as a last recourse, not as a separate cause of action.
As a way to establish a deterrent to future tortious acts, Illinois needs to establish tortious interference with an expectancy as a separate cause of action, not merely a last recourse. While successful tort litigants are given an opportunity for broad recovery, including pre-judgment interest, litigation costs, emotional distress, and most importantly, punitive damages, these legal remedies are not recoverable through an equitable will contest. Because Illinois limits tort claims to a last recourse, there is little to deter individuals from acting in bad faith. For example, if X tortuously interferes with the expectancy of Y, Y is forced to go through a will contest to seek corrective action. If Y wins, X is not punished, but is put back in the place he or she was before inexorably interfering with another's property. If Y knows of the tortious acts, but fails to take corrective action within the six-month statutory period, X is able to steal Y's inheritance. Therefore, if one thinks they can tortiously interfere with another's expectancy, so as to procure a benefit for themselves, they have nothing to lose by “going for it.”