Tuesday, November 12, 2013

Schilling v. Herrera case brief

Schilling v. Herrera case brief summary
952 So.2d 1231 (2007)

Plaintiff, a decedent's brother, sued defendant, the decedent's caretaker, for intentional interference with an expectancy of inheritance. The Circuit Court for Miami-Dade County, Florida, dismissed the complaint with prejudice. The brother appealed.


The brother, the decedent's only heir-at-law, alleged that the decedent named him in her will as her personal representative and sole beneficiary. She was later hospitalized and, after her release, moved in with the caretaker. The complaint alleged the caretaker used undue influence to convince the decedent to prepare and execute a new will naming the caretaker as personal representative and sole beneficiary. The trial court held the complaint failed to state a cause of action and that the brother was barred from filing the action because he failed to exhaust his probate remedies.


  • The appellate court disagreed with both findings. 
  • That the complaint failed to allege that the caretaker breached a legal duty owed to the brother was immaterial, as the tortious conduct required for the interference tort was directed at the testator, not the beneficiary. 
  • By alleging that the caretaker did not advise the brother of the decedent's death until after she had petitioned the probate court for discharge of probate, the brother sufficiently alleged that he was prevented from contesting the will in the probate court due to the caretaker's fraudulent conduct.

The appellate court reversed the order dismissing the complaint and remanded for further proceedings.

Suggested Study Aids For Wills, Trusts & Estate Law

1 comment:

  1. Schilling never faced Herrera. Schilling retired in 2007. Herrera began in 2015. Case closed.


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