02-3078 Storm v. Storm

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“[W]hat Brion seeks is a legal determination that the terms of Evelyn’s final will and trust, executed in October 2000, are invalid because they were allegedly procured through the exertion of undue influence by Robert. Brion claims that the change in the terms of the will and trust worked to his detriment by frustrating his established inheritance expectancy. He therefore seeks damages, presumably to be measured in part by what he would have received had Evelyn’s actual testamentary wishes, as expressed in the previous will and trust, governed the disposition of her assets (he also seeks exemplary or punitive damages). While Brion phrases his action as one involving tortious interference with his inheritance expectancy, the practical effect of his lawsuit would be similar to that of a successful will contest: the terms of the final, allegedly invalid testamentary instruments would essentially be bypassed, while Brion would receive, as damages, the assets he would have otherwise been entitled to under what he says are Evelyn’s actual will and trust. Cf. Dragan, 679 F.2d at 716 (noting that a lawsuit seeking the imposition of a constructive trust would, if successful, cause an estate to pass through the intestacy statue-thus, ‘this is not the form of the action but would be its practical effect if it succeeded’ (emphasis added)).

“An examination of the practical reasons for having a probate exception demonstrate that Brion’s tort action is simply an attempt to ‘call[ ] a will contest an action in tort.’ Id. at 717. As such, we agree with the district court that this case belongs in state court.”

Affirmed.

Appeal from the United States District Court for the Southern District of Indiana, Hamilton, J., Kanne, J.