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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX ROY LAWAETZ, 1 1 SX 11 CV 092 PLAI\TIFF, 1 ACTION FOR TORTIOUS V ' INTERFERENCE ACTUAL AND PUNITIVE DAMAGES DONOVAN HAMM, JURY TRIAL DEMANDED DEFENDANT 1 Cite as 2020 VI Super 039U Appearances Roy Lawaetz PM) Se Robert A Waldman, Esq Hamm Law Film St Croix USVI For the Defendant MEMORANDUM OPINION and ORDER WILLOCKS Presiding Judge ‘11 THIS MATTER is before the Court on the Defendant Donovan Hamm (hereinafter Defendant ) Motion for Summary Judgment filed on April 13 2015 The Plaintiff Roy Lawaetz (hereinafter Plaintiff) filed an Opposition on August 31 2015 On September 21 2015 the Defendant filed a Reply BACKGROUND ‘l[2 In 2006 Erik Lawaetz (hereinafter Erik ) and his wife Jennie Lawaetz (hereinafter Jennie ) retained the Defendant to draft estate planning documents (Def 5 Statement of Undisputed Facts ‘11 2 ) The couple informed the Defendant that they previously executed estate Rm Lander l Donman Hamm 2020 VI Super 039U SX 11 CV O92 Memorandum Opinion and Order planning documents years ago but wanted to make some changes (‘11 3 ) As a result the Defendant prepared a living trust agreement (hereinafter 2007 Trust ) dated December 20 2007 for the couple (Id ‘11 5 ) On June 18 2008 the couple decided that all of their assets should be held in a trust and had the Defendant amended the 2007 Trust (Id ‘1 6 ) The amendment also stated how the couple s assets should be distributed amongst their three children upon their death (Id ‘11 7 ) ‘113 The couple s three children include the Plaintiff Mona Lawaetz Doane (hereinafter Mona ) and David Lawaetz (hereinafter David ) who resides with the couple and requires special assistance with daily living functions (Id) In 2009 the Plaintiff received a copy of the 2007 Trust and became upset with some of the provisions (Id ‘11 9 ) One of the provisions that upset the Plaintiff was the life estate he received in a building next to the family home that he used as an art studio (hereinafter Studio )and stayed in while in St Croix (Id ‘11 l3 )According to the 2007 Trust the Plaintiff s life estate in the Studio would terminate upon certain conditions (Id ‘11 14 ) The Plaintiff met with the Defendant numerous times in 2009 to discuss the 2007 Trust (Id ‘11 10 ) However in each meeting the Defendant informed the Plaintiff that he did not represent him and that any changes would have to be approved by his parent prior to the documents being amended (Id ‘11 12 ) On June 15 2009 the parties along with Mona held a meeting in which the Plaintiff presented a note signed by Jennie stating that she did not request a terminating provision for the Plaintiff s interest in the Studio (Id ‘11 15 ) During the meeting the Defendant stated that he must have included the provision by mistake and that the error could easily be rectified (Id ‘11 16 ) HOWCV er after the meeting the Defendant recalled that Jennie had specifically requested that the life estate terminate upon certain conditions because she was concerned about the Defendant and his wife s abusive treatment of David (Id ‘11 16 ) That Jennie was concerned about David s Rm Lauder t Dmroran Hamm 2020 VI Super 039U SX 11 CV 092 Memorandum Opinion and Order inability to defend himself against the Plaintiff after the couples death (Id ‘}[ 17) Thus the provision was included as a means to combat Jennie s concerns (Id ) (ll4 On August I l 2009 the Plaintiff filed a grievance with the Virgin Islands Bar Association against the Defendant alleging misconduct and/or unethical behavior (Id ‘11 18 )On May 16 2012 it was deteimined that there was no probable cause to believe that the Defendant had violated any of the Rules of Professional Conduct and the matter was dismissed (Id ‘1[ 26 ) (Id ‘f[ 18 ) On March 30 2010 prior to the grievance being dismissed the Defendant had Jennie sign an affidavit and meet with an attorney of her choosing to have the affidavit executed (Id ‘I[ 20 ) (115 In the affidavit Jennie stated that the Defendant had drafted the estate planning documents consistently with the couples wishes and that she was satisfied with estate planning services provided by the Defendant (Id ‘|[ 20 ) According to the affidaVit Jennie also acknowledged that she did sign the letter presented to her by the Plaintiff pertaining to the termination provision of the life estate provision but that she did so without reviewing the document first (Id ({I 22 ) (K6 On April 8 2010 Erik died and pursuant to the 2007 Trust all of the assets were placed in asub trust known as the Survivor 3 Trust under the complete control ofJennie (Id ‘11 22 ) The 2007 Trust provided that the Survivor s Trust could be amended at any time by the survivor of Erik and Jennie (Def s Memo at 5) On April 27 2010 Jennie amended and restated the provisions of the Survivor 5 Trust (Id ) Since that time Jennie has amended the Survivor s Trust on December 21 2010 and August 19 2011 (Id) The amended Survivor 3 Trust (hereinafter 2012 Trust ) controls the disposition of the couple s assets upon Jennie s death STANDARD OF REVIEW (117 Motions for summary judgment are governed by Virgin Islands Rule of Civil Procedure 56 VIR Civ P 56 A motion for summaryjudgment shall be granted if the movant shows that Rm 1 antler t Donoran Hamm 2020 VI Super 039U 9X I I CV 092 Memorandum Opinion and Order Page 4 ol 22 there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law ' A dispute is genuine if based on the evidence in the summary judgment record a reasonable jury could find in favor of the non moving party 7 As to materiality only those facts that might affect the outcome of the suit under the governing law will ploperly preclude the entry of summary judgment ‘ ({[7 The moving party bears the initial burden of pointing out to the court that there is no genuine issue of material fact or in other words an absence of evidence to support the nonmoving party s case 4 The non moving party then has the burden of setting out specific facts showing a genuine issue for trial 5 The court may consider the cited materials and other materials in the record6 But the court may not weigh the evidence or determine the credibility of witnesses See Williams 50 V I at I94 95 The Court must consider the record evidence in the light most fayorable to the non moving party See Rune; No 2017 0010 2018 VI Supreme LEXIS l at 6 (citations omitted) DISCUSSION (H8 The Defendant is requesting summary judgment as to all Counts of the Plaintiff s Complaint to wit CountI Tortious Interference with Expected Inheritance Count II Negligence Count III Doctrine of Deviation Applied to Trust and Count IV Intentional Infliction of ' VI R Cit P 56(d) See alsaRimeI t KmaIrCmp No 2017 0010 2018 VI Supreme LEXIS 1 at 5 (Jan 18 2018) (A summary judgment mutant is entitled to judgment as a matter oi law ii the mutant ean demonstrate the trimmer. oi a triable isSUe of material taet in the record ) See also Walters t Walters 60 V I 768 794 (VI 2014) (eitations omitted) ’ See Martin \ Martyr 54 V I 379 187 (2010)(eitations omitted) Id ‘ Id at 386 87 See also Willrams 1 United Cmp 50 VI 191 194 (VI 2008) (eitations omitted) ‘Rimet No 2017 0010 20l8 V I Supreme LEXIS 1 at ‘5 6 (Once the moving party has identified the portions of the reeord that demonstrate no issue oi material iaet the burden shifts to the non moving party to present attirmatiye eVidenee ll om whieh a jury might reasonably return a Verdiet in his tavor ) “SeeVI R Civ P56(c)(?) Rm Laurie! r Donor an Hamm 2020 VI Super 0 %9U 9X ll CV O92 Memorandum Opinion and Order Emotional Distress (Mot at 19 ) Due to the Plaintiff seeking a reward where there is no loss of damages or general issues of material fact (Id ) ‘il9 The Plaintiff claims that the Defendant s Motion should be denied because there are sufficient factual disputes as to whether the Defendant interfered with his expected inheritance the competency of Erik to execute the 2007 Trust (Opp n at 30) As well as the Defendant acquiescence to the undue influence of Mona and her son Julian Pardo de Julian (hereinafter Julian) and the Defendant s negligence (Id ) (IUD As a pretextual matter the Court must first note that on June 18 2012 the Probate Court issued a Final Adjudication and Decree holding that the 2007 Trust was the sole legatee of the decedent Erik and ordered that the 2007 Trust was the owner of the property of such 7 Hence this Court will recognize the Survivor s Trust dated June 6 2012 (hereinafter 2012 Trust ) as the valid estate plans of Erik and Jennie The Plaintiff has brought this matter against the Defendant Attorney Hamm and has not contested the validity of the estate documents in his complaint ergo the Court will not address those issues 8 I Tortious Interference with Expected Inheritance (fill The Defendant argues that although the Virgin Islands has yet to recognize a claim for tortious interference with ones expected inheritance Count I of the Plaintiff s Complaint must be dismissed because the Restatement (Second) of Torts § 774B requires proof that the defendant engaged in fraud duress or other tortious means to interfere with ones expected inheritance which the Plaintiff has failed to allege (Memo at 12 ) Additionally the Plaintiff argues that both the case 7 See Final Adjudication and Decree dated June 18 20l2 ol Case No 9X 10 PB 41 x See Marshall r Mars/ml! 547 U S 293 312 (2006) ( [T]he tort claim seeks an or per rattan: judgment against [the defendant] not the probate or annulment oi a will ) see also Golden t Golden 182 F 3d 348 364 (3rd Cir 2004) ( Despite its entwinement with probate a cause of action lor tortious interlerenee with inheritance is one brought m perrorram ) Rm Lanna 1 Donorrm Hamm 2020 VI Super 0 %9U SX I I CV 092 Memorandum Opinion and Order Paar, 6 of 22 law and Section 7743 require the Plaintiff to prove that he actually had an expected inheritance (Id at 13 ) (1112 The Plaintiff claims that a genuine issue of disputed facts remains because the Defendant knew Erik did not have the mental capacity to execute the 2007 Trust (Opp n at 22 ) That the Defendant knowingly allowed Mona and Julian to exercise undue influence on Erik and Jennie in drafting the 2007 Trust (Id ) ‘lll3 As acknowledged by both parties courts in this jurisdiction hare yet to address a claim for intentional interference with an expected inheritance There is no local statutory cause of action for intentional interference with inheritance in this jurisdiction However Section 7743 of the Restatement (Second) of Torts states that [olne who by frauds duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift 9 (1114 However the Supreme Court of the Virgin Islands has stated courts may not give mechanistic and uncritical reliance {to} the Restatements '0 {T]he Supreme Court when considering a question not foreclosed by prior precedent from this Court must perform a three part analysis as set forth in Banks The first step in the analysis whether the Virgin Islands courts hare previously adopted a particular rule requires the Superior Court to ascertain whether any other local courts have considered the issue and rendered any reasoned decision upon which litigants may have grown to rely The second step determining the position taken by a majority of courts from other jurisdictions direct the Superior Court to consider all potential sides of an issue by viewing the potentially different ways that other states and territories have resolved ta particular question Finally the third step in the Banks analysis identify the best rule for the Virgin Islands mandates that the Superior Court weigh all persuasive authority both within the and outside of the Virgin Islands and determine the " Restatement (Second) of Tort Section 774B comment b '0 Gm Infrhe Wig!" Islam/31 Connor 20l4 V I Supreme LEXIS l7 " ' (V 1 Super Ct 20l4)(citing Banks v Int chntaI & Leasin Corp 20” V1 Supreme LEXIS 46 l‘ (S Ct 20”) Rm Lander 1 Donoran Hanan 2020 V1 Supcr 039U SX ll CV 092 Memorandum Opinion and Order Pagc 7 of 22 appropriate common law rule based on the unique characteristics and needs of the Virgin Islands Connor 2014 V I Supreme LEXIS at 8 9(citation omitted) A Virgin Islands P161 edem 1115 In reviewing the decision of the courts of our jurisdiction the Supreme Court Territorial Court Superior Court District Court and even the Third Circuit (prior to the autonomy of the Supreme Court of the Virgin Islands) no cases addressing the above issue were found Thus there is no current precedent within the Virgin Islands B MUJOI‘U) Approat I! 1116 An exhaustive search revealed that this tort has been adopted by other jurisdictions when a defendant s conduct causes the decedent to transfer property that would have gone to the plaintiff upon the decedent s death or as an inter vivos gift when no other adequate remedy exists in probate For example the Supreme Court of Arkansas failed to adopt this tort where the Plaintiff filed a tortious interference claim after attempting to have a will set aside 1' According to the Arkansas Supreme Court the plaintiff would hare had an adequate probate remedy if her will contest had been successful '5 The court refused to allow what it characterized as a collateral attack on the probate decree while also noting that most appellate decisions pertaining to the matter only allowed such claims when probate relief was not available '3 " Wilsonr Futsdn 112 NM 785 789(NM Ct App Auousl20 2()02)( citing Jar/norm Kcllr 1- 15 Ark 151 44 (Ar1\ 2001) p [(1 '2 Id sec c Mamet Grmbeal 841 F2d 706 711 (3d Cir 1988) Deer Dace 408 So 2d 216 217 220 71 (Fla 1981) In re Ertcrre of KINDIIYI)” 204 Ill App 3d 454 562 (111 App Ct 1990) MlllfUIll Sackett 671 NE2d 160 162 (Ind Ct App 1996) Ora/ran“ Mam/re 974 S W2d 580 583 (Mo Ct App 1998) Fuestoner Galbreath 895 F Supp 917 927 (So D Ohio 1995) See genera/ls Gcorgc L Blum Aaron)?» Tmn'ous lmerferencc rut/r Bequest as Precluded In W!” Contest Remedr 18 A L R 5th 21 i (1994) Rm Lander 1 Donaran Hamm 2020 VI Super 019U 9X I 1 CV 092 Memorandum Opinion and Order (1117 The Supreme Court of Illinois also rejected a tortious interference claim that was brought after an unsuccessful will contest concluding that the claim constituted a second bite of the apple by invalidating a will that the probate court had already found valid '4 There the plaintiff brought the claim against a non beneficiary two years after the will had been probated " $118 The Court of Appeals in New Mexico also refused to recognize the tort holding that there is no common law right of inheritance but rather [t]he right of inheritance is purely a creature of statute '6 Therefore the only right to contest a will is by statute which should not be circurmented by calling a will contest an action in tort ‘7 In support of its decision the court noted that it was obligated to protect the legislatures decision to enact the Probate Code for issues such as will contest which require a greater burden of persuasion than an independent action in tort '8 (1119 Other courts such as the Superior Court of Rhode Island have decided to recognize tor tious interference with expected inheritance as a natural extension of the common law rather than a creation of an entirely new cause of action I" In reaching its decision the Court noted that tor tious interference had continuously evolved in its jurisdiction since 1934 with the adopting 0t tortious interference with contractual relations I” And that tortious interference with expected inheritance did not conflict with the Rhode Island probate statute because [a] tort claim does not become a ”Rn/mum“ F1) rt State Bank 97 Ill 2d 174 184611 1983) " Id "‘ Wilson 132 N M 790 (citing Burme \ Gan ales (In re Estate of Buom ) 8 Nth App 91% 917 (Nth Ct App 2000)) ' 7 Wilson 132 N M 790 (citing Dmgan t Mrller 679 F 2d 712 717 (7th Cir 1982)) ' 8 Wilson 132 N M 790 '° Aunt United for Life r Legron of Chm! ofN Am Inc 2017 R1 Super LEXIS 98 at * (R1 Super Ct Jan 4 2017) ”Id Rot Lauaet I Donoran Hamm 2020 Vi Super 019U SK 11 CV 092 Memorandum Opinion and Order will contest simpiy because it arises out of facts relating to the making or unmaking of a will ”3' Although not all states have adopted the tort nearly half of the states have ” ‘j[20 Of those states that have adopted the tort many apply the Restatement (Second) of Torts § 774B or some close variation 3‘ According to the Restatement tortious interference of inheritance requires (1) The existence of an expectancy to inherit, (2) Reasonable certainty that the expectancy would have been realized but for the interference (3) Intentional interference with the expectancy (4) Tortious conduct involved with the interference such as fraud duress or undue influence (5) Damages” A review of the various jurisdictions that acknowledge that torts Show that the majority of jurisdictions apply the Restatement " Id {citing Allen; Hall 128 Or; 276 278 (1999) 7’ It! see Unratea't Hunter! 446 F 1d I7 20 ( Est Cir 2006): at least 2? states hint. recognized some lot of the tort ) (citing Diane I Klein A Dtsappointcd Yankee in Comedian {or Neath) Pmbate Comt Tottmus Intu‘fueme With Expat rattan oflnheaitame A Sun er Wu!) AMA m of State Appmacher m the F("at Set and and Third Chunts 66 U Pitt L Re» 235 2400004) 5‘ See eg Fit putrid 1 Hoe/m Ala LEXIS 22 at MO 31 (Ala 2018) Shank \ Allen Nelson Smut 2007 Atiz Super LEXIQ 250 at *1 2 (Ari; 2007) Fentmtt P((HS()II 2004 Ark App LEXIS 623 at 3 4 Beckmthr Dali! 2012 Cal App LEXIS 528 at 9 22(C D Cal 2012) [1135430121 1113650” 950A2d 672 699 70l(DC 2008) Mltllé’) 1 Stephens 250 So 3d l06 109 11 (Fla Dist Ct App 4th District 2018) Lassen Bradstreet 145 Idaho 670 675 77 (2008) In reEstatleEHis 236111 2d 45 52 (7009) Scotti Dillman 2018 Ind App LEXIS 426 2118 (ind Ct App E996) Damon; Tucket 2002 Iowa App LEXIS 608 at 5 (Iowa Ct App 2002) Adrmrce Ins Co ome t T0p£’k£tR€5Ll£€ Mission 2010 Kan App Unpub LEXIS 484 at ‘8 9 (Kansas 2004) Cater Core 2016 ML LEXIS It)? 211* 7 ( ML Super Ct 2017) u Farm»: 1 Pearson 2004 Ark App LEXIS 623 at *3 4 Rm Laurie! r Donmcm Hamm 2020 VI Supcr019U SX 11 CV 092 Memorandum Opinion and Order Page 10 oi 22 C The Best Rule for the Virgin Islands 9121 In this jurisdiction Title 15 of the Virgin Islands Code and the Uniform Probate Code governs decedents estates and fiduciary relations Moreos er the Virgin Islands have sound laws regarding will contest and undue influence However because the Court finds that tortious interference with inheritance is a cause of action separate and distinct from a will contest and in order to maintain consistency with most jurisdictions as well as the Third Circuit this Court will recognize the tort and adopt the Restatement (Second) of Tort Section 7743 as the best rule in the Virgin Islands 1 Britten“) Of an E \7[J€( tam» to 111126!!! (“22 In applying the Restatement to the present matter Section 7748 defines inheritance as any devise or bequest that would otherwise have been made under a testamentary instrument or any property that would have passed to the plaintiff by intestate succession K ‘1123 The Defendant argues that the Plaintiff does not have an expected inheritance because he cannot simply rely on the fact that he is a child of Erik and Jennie to prove that he had an expected inheritance (Memo at 14 ) In support of this assertion the Defendant cites non binding case law which states that a high degree of certainty is required to establish that a testator would have made a particular legacy and therefore a parental relationship is insufficient to prove the expectancy of inheritance (Memo at 14 citing Mom]! 1 Mom]! 712 Aa 2d 1039 1042 (Me 1998) However this case law is not persuasive and the plain language of Section 7743 comment d explicitly states complete certainty is not required 7" K Restart 2d of Torts §774B comment c 1"Restart 2d of Torts §774B commentd Rm Lanaet r Dnnman Hamm 2020 VI Super 0 %9U 8X l 1 CV 092 Memorandum Opinion and Order Page ll oi 22 ‘fl24 Nevertheless it is cleai that the Plaintiff has a real inheritance expectancy as he is a named beneficiary of the 2007 Living Trust as well as the Survivors Trust In addition the Defendant has stated in his own Motion and provided evidence that Jennie does intend for the Plaintiff inherit fiom her estate I: Reasonable Certainty of Realization but for the Defendsz s Inteij‘erence The Restatement states that there can be recovery only for an inheritance or gift that the other would have received but for the tortious interference of the actor This means that there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of death of the testator if there had been no such interference In many cases this can be shown with complete certainty In many others as when a will is made revoked or changed during his lifetime complete certainty is impossible It is not required If there is reasonable certainty established by proof of a high degree of probability that the testator would have made a particular legacy or would have changed it if he had been persuaded by the tortious conduct of the defendant and there is no evidence to the contrary the proof may be sufficient that the inheritance would have otherwise been received The fact that it was the defendant s tortious act that makes it not possible to prove with certainty may be taken into consideration by the court 77 Therefore the Plaintiff must establish with reasonable certainty that the inheritance would have been realized but for the Defendant s conduct ’8 This does not require complete certainty but rather proof of a high degree of probability that the testator would have made the bequest if not for the defendant s conduct ’9 ‘1[25 The Plaintiff is basing his Complaint for expected inheritance on Erik and Jennie 1986 Revocable Trust in which he claims he would have inherited one third shares of Erik and Jennie s estate along with Mona and David as well as complete ownership of the Studio without any ’7 Restart 2d of Torts § 774B commcnt d ( 1979) ‘3 Restart 2d of Torts § 774B 301d Rm Laura 1 Donman Hamm 7020 VI Super 019U SX 11 CV 092 Memorandum Opinion and Order Face 12 of 22 conditions or lestrictions to transfer his interest to his daughters Verena and Anitanja (Opp n at 5 6 ) The Plaintiff also claims that Verena and Anitanja were entitled to a 50/50 interest in Estate Balenbouche (Id at 5 ) However under Erik and Jennie s Living Trust he no longer has a one third interest in his parent s assets and his interest in Estate Grande Anse St Lucia and the Lawaetz Family Foundation at Little La Grange St Croix have been decreased (Id at 6 ) He also claims that the 2007 Trust only entitles him to a life estate in the Studio which Mona can request to be terminated at any time with the remainder going to Mona and Julian (Id ) Plaintiff further asserts that his daughters no longer have an interest in Estate Balenbouche but rather one fourth interest now passes to Mona (Id at 5 ) In support of his claim the Plaintiff has provided a copy of the 2007 Trust an affidavit from the Defendant conceding that he had included the life estate clause by mistake and a letter from Jennie to the Defendant stating that she wanted the terminable clause for the Studio removed because she did not authorize such provision (Opp 11 Ex B D and K ) ([[26 Conversely the Defendant has provided evidence that under the 2012 Trust the Plaintiff will still inherit the Studio and that Jennie intentionally requested conditions on the Plaintiff bequest of the Studio in order to protect David from the Plaintiff (Stmt of Undisputed Fact Ex A and D ) As well as evidence fiom Jennie acknowledging that she was concerned about the Plaintiff and his wife challenging the trust (Id ) The Defendant also provided an affidavit by Jennie dated March 30 2010 stating that the Defendant had repeatedly helped her and Erik with their estate planning needs in a manner that has been consistent with their wishes (Id at B ) In the affidavit Jennie again acknowledges her concern regarding the Plaintiff contesting her estate plans as well as the Virgin Islands Bar Association claim brought against the Defendant by the Plaintiff (Id ) Jennie states that she is not in support of the action and as a result reviewed the affidavit prior to signing it with Attorney Joel Holt (Id ) Rm Lander r Donmtm Hamill 2020 VI Super 019U SX ll CV 092 Memorandum Opinion and Order Page I? of 22 (1127 Despite the conflicting evidence the Plaintiff has successfully demonstrated that he was and still is a beneficiary of Erik and Jennie s estate plans However the Plaintiff has failed to establish that but for the Defendant s conduct his inheritance would not have remained as stated in the 1986 Trust In addition the Plaintiff bases his claims on the changes between the 1986 Trust and the 2007 Trust he“ ever it is the 20l2 Survivor s Trust that is novv operable (1128 Under the 2012 Trust the Plaintiff s daughters Verena and Anitanja will still inherit a one fourth interest of Estate Balenbouche contrary to the Plaintiff s assertion (See 2012 Trust ) The Plaintiff will inherit one ninth of the trust property and a condominium unit out of the shares of the Lawaetz Family Corporation and Estate Grande Anse St Lucia will now be sold (Id ) The 2012 Trust also states that the Plaintiff is entitled to a life estate in the Studio His daughters will also receive their own one half interest of Parcel 3 of Estate St John where the Art Studio is located (It! ) In addition the 2012 Trust also includes a no contest by which the Plaintiff will lose his inheritance if he decides to contest the validity of the will (Id ) $29 Thus upon a comparison of the 1986 Trust and the 2012 Trust the Court finds that although the Plaintiff interest has somewhat changed this Court cannot be reasonably certain that the Plaintiff s interest would have remained the same but for the Defendant s conduct Furthermore given that Erik and Jennie s initial estate plans were executed in 1986 and Jennie was still living at the time this Complaint was filed it is unreasonable for the Plaintiff to not expect that Erik and Jennie s wishes may have changed Therefore the Court finds that there is not a high probability that the Plaintiff would have received the same inheritance but for the Defendant III Intentional Conduct (K30 According to the Defendant in 2006 he was retained by Erik and Jennie to draft estate planning documents (Strut of Undisputed Fact Ex A ) However the Plaintiff claims that in 2004 Rm Lander 1 Donoran Ham/n 2020 VI Super ()19U SX ll CV 092 Memorandum Opinion and Order Erik s mental health began to decline and despite the Defendant knowing that Eriks mental capacity was declining he continued to draft the estate documents on behalf of Erik and Jennie under the direction of Mona (Opp n at 2 ) Therefore the Defendant assisted Mona who was also his client in unduly influencing Erik and Jennie in the creation of the 2007 Trust to benefit Mona (Id ) In support of this claim the Plaintiff has provided a copy of affidavits from Jennie and Mona with Attorney Joel Holt all attesting that Erik who was ninety (90) years old at the time and did not have the mental capacity to handle the family s legal matters pertaining to a separate legal action (Opp n Ex F G &H) QB] Based on the foregoing allegations the Plaintiff is accusing the Defendant of assisting Mona in her undue influence of Erik and Jennie However this allegation does not establish that the Defendant s conduct in drafting the estate documents was to intentionally prevent him from the inheritance he was expected under the I986 Trust 11 Tortzom Conduct ([[32 According to Section 7743 a defendant s conduct must be independently tortious in character ‘0 Generally this requires the defendant to induce the third person into not making a bequest or gift by fraud duress defamation tortious abuse of fiduciary duty or forgery “ In the absence of independently tortious conduct generally there is no liability undei Section 7743 p 9133 Based on the allegations asserted in the Complaint and presented in the Opposition it is clear that the Plaintiff is not alleging that the Defendant s independent actions were tortious but he aided one whose actions were tortious In essence he is accusing the Defendant of acting in ”Restart 2d ot'l‘orls §774B comment L (1979) " Id ‘1 Id Rm Lander 1 Darwin" Hanna 2020 VI 9uptr ()39U SX ll CV 092 Memorandum Opinion and Order Page 15 at 22 collusion with Mona Therefore the Defendant s conduct was not independent Moreover based on the record the Defendant s actions are also not tortious in character as they are not consistent with fraud duress or undue influence Rather in reviewing the evidence especially the email correspondences plovided by the Plaintiff it is clear that the Defendant was simply attempting to draft estate planning documents consistent with the wishes of Erik and Jennie Thus the Court finds that the Defendant s conduct was not tortious ‘1134 Given the aforementioned analysis the Plaintiff has failed to demonstrate that there is a genuine issue as to any material fact regarding his claim for tortious interference with expected inheritance as such the Defendant shall be granted summary judgment as to Count I of the Complaint II Negligence (H35 According to the Defendant he is entitled to summary judgment as to Count II because the Plaintiff has failed to establish any of the elements required to succeed on a claim for negligence (Memo at 15 ) More specifically the Defendant claims that the Plaintiff has failed to establish that the Defendant owed him a duty or that such duty was breached (Id ) In response the Plaintiff argues that case law within the Third Circuit does recognize privity between beneficiaries of a trust and the drafting attorney (Opp n at 26 ) (1136 The Supreme Court of the Virgin Islands has stated that it agrees with the Superior Court s assessment that the foundational elements of negligence are (I) a legal duty of care to the plaintiff (2) a breach of that duty of care by the defendant (3) constituting the factual and legal cause of (4) damages to the plaintiff “ Whether an attorney is liable to a beneficiary of a will for his negligence “ Mac/ratio r Yacht Hare" U S V] LLC 2014 V I §uprcmc LEXIS 5l at M6 (V I 2014) Rm I (were! I Donate}: Ham": 2020 Vi Super 039i} SK I I CV 092 Memorandum Opinion and Order Page If} of 22 in drafting the wili is an issue of first impression in this jurisdiction Nevertheiess, courts in the Third Circuit have held that in spite of the genetal rule that attorneys are not liable to third parties for negligence in the performance of their professional duties, that when an attorney undertakes a duty to one other than his client he may be liabie for breaching a duty to the person intended to benefit from such performance ‘4 In applying this same principle, the New Jersey Federal District Court heid that an attorney may be liable to the beneficiary of a wiil f01 his negligence in drafting a will i“ In reaching its decision the court not only looked at New Jersey state law but other jurisdictions and found that it was clear from the case law that attorneys whose negiigence in drafting a will causes an intended beneficiary to lose their interest are liable to that beneficiary ‘6 ‘I[37 in determining whether one is an intended beneficiary the court affirmed the tower courts application of Restatement (Second) of Contracts Section 30217 which this Court adopted in Lope t Renaissance Sr Cram Cammbola Beach Resort & Spa m Section 302 of the Restatement (Second) of Contracts states (1) Unless otherwise agreed between promisor and promisee a beneficiary of a piomise is an intended beneficiary if recognition of a light to performance in the beneficiary is appropriate to effectuate the intention of the parties and either it Rat/lbw” t Lam 697 F Supp 817 (D N J “988) (citing Sfcltti‘lf 1 Shaun I42 N J Super 581 593 (App Div 31:91:25,310" t Lem: 697 F Supp 8E7 (D N 3 I988) ‘6 Rarhblott 697 F Supp 820 (chino Blll’itflilél \ [Hing 49 (.al in (347 (£958) Imus 1 Hanna as C it hi 58% (Wot) (at dutiful, 168L 8‘ 987 "ll Ed Nib 82 is (1 6m (1962) Aunt \ (unwanted(mun/n (a lll‘Wts 2d 507M981) [natal Sperm; 26(0nn Supp 178(l966) St’IUHIéII ~‘vtf/Itltlllt l5? “Ash 172 7881’ ’65 g"EiiflnlLongoComm Co I TmmttAmemnlne 92! F Supp 1295 1307(DNJ 1996)( citing Restat 2d of Contracts “$3 33313.? i RenaisscmreSt Clan Cammbola Beach Resort & Spa 70 VI 27 36 37 (Super Ct VI Jan 23 20W) Rm Lauder \ Donoran Ham»? 2020 VI Super 039U 9X ll CV 092 Memorandum Opinion and Order (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance (2) An incidental beneficiary is a beneficiar y who is not an intended beneficiary ‘9 Therefore a two prong test must be employed in order to determine whether one is an intended beneficiary First the third party must have standing appropriate to effectuate the intentions of the parties 40 If it is deemed appropriate the performance must then satisfy the promisee s obligation to pay money to the beneficiary or the promise intended for the beneficiary to benefit horn performance 4' ‘1138 In applying Section 302 to the present matter the estate planning documents establish a contract between the Defendant and Erik and Jennie Because the documents named the Plaintiff as one of the intended beneficiaries it is clear that Erik and Jennie intended to benefit the Plaintiff Therefore pursuant to Section 302(1 )(b) the Plaintiff is a third party beneficiary that can bring his negligence claim against the Defendant tK39 Having now determined that the Defendant owed the Plaintiff a legal duty the Plaintiff must also establish that the Defendant breached such duty that constitutes the factual and legal cause of the Plaintiff‘s damages ‘1140 According to the Plaintiff the Defendant drafted trust documents under questionable circumstances which include fraud conflict of interest negligence and undue influence that ‘9 Restat 2d of Contracts § 302 it?! Longo Com!) C0 921 F Supp ”()7 Rm Lunaet I Dunman Ham"! 2020 VI Quper 039U 8X ll CV 092 Memorandum Opinion and Order constitutes a breach of duty that was the proximate cause of the Plaintiff 5 loss of expected inheritance (Opp n at 24 ) Resulting in him suffering injuries that include a loss of expected inheritance and emotional distress (Id ) ‘ll4l As previously stated the Court finds that the Defendant s performance in drafting the estate documents did not constitute any tortious act Thus the Defendant did not breach any duty owed to the Plaintiff Moreover the Court finds that the Plaintiff will receive what the testator s intended for him to inherit therefore the Defendant 5 performance in drafting the estate documents did not result in him losing his expected inheritance or suffering any damages Therefore the Plaintiff has failed to establish that the Defendant s performance constitutes negligence As a result no genuine issue remains as to Count ll of the Complaint As such the Defendant shall be granted summary judgment as to Count ll III Doctrine of Equitable Deviation ‘1142 As to Count III the Defendant claims that he is entitled to summary judgment because the Plaintiff has asserted a claim under the doctrine of deviation which does not apply to the present matter (Memo at 16 ) According to the Defendant the doctrine of deviation allows a court to direct or permit deviation from terms of a trust where compliance is impossible or illegal which is not applicable to the 2012 Trust because the terms are not illegal or impossible (Id )(citation omitted ) The Defendant also claims that the Plaintiff has named the wrong party in his pursuance of this claim because he has no interest in any of the estate documents (Id ) (1143 Although the Plaintiff agrees with the Defendant s application of the doctrine of deviation he also claims that because he is alleging and intends to prove that Erik did not have the adequate mental capacity to execute the 2007 Trust that the Court can deviate from the terms of the 2007 Trust in order to comply with Erik and Jennie s wishes (Id ) Rm Laurie! r Donoran Hanan 2020 VI Super 039U SX ll CV O92 Memorandum Opinion and Order Page 19 0| 2” (1144 In Hansen 1 Gm raft/re Virgm Islands this Court held that under the doctrine of equitable deviate courts may allow trustees to deviate from the terms of a charitable trust where compliance is impossible or illegal or would defeat or substantially impair accomplishing the trust purpose 4° However Hansen was decided prior to the establishment of the Virgin Islands Supreme Court which as previously mentioned has instructed courts in the Virgin Islands to conduct a three part analysis in determining Virgin Islands common law 4‘ I VII gm Islands Fret edenf (1145 Since the establishment of the Supreme Court of the Virgin Islands courts in this jurisdiction have yet to apply the doctrine of equitable deviation Nevertheless the court in Hansen did adopt the Restatement (Second) Trust § 381 in its application of the equitable deviation 44 There the Court held that equitable deviation did not apply because compliance with the trust terms was not impossible or illegal nor would it defeat or substantially impair the trust s purpose 4‘ However the trust in Hansen was a charitable trust which Section 381 is specifically limited to 4" Nevertheless the Virgin Islands has been willing to apply the doctrine of equitable deviation to charitable trust when the terms are impossible illegal or impair the purpose of the trust 4’ Hansen r Gm t oft/re Virgin Islands 5’» VI 58 89 90 (V I Super Ct I999) (citing Rstmt 2d of Trusts § 387 (2012)) 4‘ Gm r oft/1e Vlfgllt Islands 1 Connor 60 V I 597 600 (V I 2014)(citing Banksr Intematrcmal Rental & Leasing Corp 55 VI 967 979 (VI 2011) 4‘ Hansen 5? V I 58 89 90 «is Id 46 Id Rm Lawyer t Darrow" Harm" 2020 VI Super 0 %9U 9X II CV 092 Memorandum Opinion and Order u Majority Approar h ‘1146 Historically it has been held that courts have equitable power to deviate from the literal provisions of a trust to accomplish the testator s purpose when an emergency exit 47 Overtime the common law doctrine has been codified and boarded by statutory law 48 As a result many states have applied the Restatement (Second) of Trust § 167 now replaced by the Restatement (Third) of Trust § 66 along with their own statutory language 49 III The Best Rule for the Virgin I rlands ([[47 For the reasons stated above best rule of law for the Virgin Islands is the Restatement (Third) of Trust § 66 Adopting Section 66 is consistent with the majority of other jurisdictions as well as precedence already established in the Virgin Islands Moreover in the absence of statutory law it is in the best interest of the public to adopt Section 66 as a means for the court to address circumstances unanticipated by testators ‘l[48 Pursuant to Section 66 courts have the powei to modify an administrative or distributive provision of a trust or direct or permit the trustee to deviate from an administrative or distributive provision if because of circumstances not anticipated by the settlor the modification or deviation will further the purpose of the trust ‘0 ‘I[49 Applying this rule to the matter at bar it is clear that Section 66 is not applicable here Given the record circumstances have not changed since the creation of the trust to warrant judicial modification Furthermore even if the Plaintiff was successful in his claim for tortious interference ‘7 In re Wolcott 95 N H 2? 28 ( W48) (citing Inn! ( 0 \ (rim: supra Putin/IQ!!!" \ ”(balm/(km 111m [III] of it! 63 EV J it] i I as A 468 ( [III/H \ Bum/I 29 Ill ”()1 (i (In rm Nu! I Bunk i ”mean 94 IN H 284 31 3i 2d it“ Longuorthi Dufl i2? ILL 258 26? (I887) Friedman» Teplis 268 Ga 721 722(1997) ‘3 Cm ofAugusmr AG 941 A 2d 582 at *591 n 16(Me 2008) see Ike: Doolittle 6| Cal App 4th 51 79(l998) " Restat ”id oi Trust § 66 ‘0 Restat 1d of Trust § 66(1) Rm Lancer \ Damn an Ham!" 2020 VI Super 0 %9U 9X ll CV 092 Memorandum Opinion and Order Page 21 ot 22 or negligence judicial modification of the trust terms would not be the appropriate remedy Therefore the Defendant is entitled to summary judgment as to Count 111 of the Plaintiff s Complaint IV Intentional Infliction of Emotional Distress ‘flSO The Defendant claims that the Plaintiff has failed to allege any physical harm as required under intentional infliction of emotional distress and that any emotional distress suffered by the Plaintiff was not the result of the Defendant s conduct (Id ) ‘J{51 Nonetheless the Plaintiff asserts that his intentional infliction of emotional distress claim is directly linked to his tortious interference with expected inheritance claim (Opp n at 29) Therefore the Defendant s involvement with Mona and Julian to disinherit him and the Defendants attempt to cover his wrong constitute intentional infliction of emotional distress (Id ) In addition the Plaintiff claims that he has attached an affidavit from himself clearly stating that he suffered physical distress (Id ) Although a liberal [sic] reading of the pro se complaint does not show physical harm he is requesting leave to amend the Complaint (Id ) ‘1[52 This Court has previously adopted the Restatement (Second) of Torts § 46 as the best rule for intentional infliction of emotional distress for this jurisdiction According to Section 46 one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm to the other results from it for such bodily harm 5' $153 Based on this law as adopted by the Court the Plaintiff is not required to allege bodily harm in order adoption Therefore leave to amend the Complaint to include bodily harm is not " Restat 2d of Tort § 46(1) Rm Laure! r Damian Hamm 2020 VI Super 0 '49U 9X l 1 CV 092 Memorandum Opinion and Order required Nevertheless the Plaintiff has failed to present any evidence that the Defendant s conduct was extreme and outrageous Nor has the Plaintiff demonstrated that the Defendant intentionally or recklessly caused the Plaintiff severe emotional distress Rather the Plaintiff merely contends that in drafting the will the Defendant assisted Mona and Julian in disinheriting him Aside from this conclusory statement the Plaintiff has not presented a viable claim for the intentional infliction of emotional distress Thus there is no genuine issue in dispute as to the Plaintiff” s intentional infliction of emotional distress claim therefore the Defendant is entitled to summaryjudgment as to Count IV CONCLUSION (“54 For the foregoing analysis the Court will grant the Defendant s Motion for Summary Judgment as to the Plaintiff s Complaint 955 Accordingly it is hereby ORDERED that Defendant s Motion for Summary Judgment as to the Plaintiff s Compiaint is GRANTED / I? / DONE and so ORDERED this *4 day of April 2020 // / X f / / // / i ATTEST ‘ i] f\ rm 4* f f 4; é" / /(r//’/ // /K/ x x \i 3, Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court curt Clerk Worl” Dated fig12/41‘