ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA03-1122

September 22, 2004

GROVER FENTON AN APPEAL FROM LINCOLN COUNTY

APPELLANT CIRCUIT COURT

[NO. CIV2002-100-2]

v.

HONORABLE RANDALL WILLIAMS,

DOROTHEA PEARSON SPECIAL CIRCUIT JUDGE

APPELLEE

AFFIRMED

John Mauzy Pittman, Judge

Appellant Grover Fenton appeals from a summary judgment that disposed of his lawsuit against appellee Dorothea Pearson for tortious interference with an expected inheritance. We affirm.

At issue is the estate of the late Carl Eschbach, who died on December 28, 2001. During his life, Eschbach was stepfather to appellant and appellant's brothers, Carroll and Don, both now deceased. Appellee is Carroll's former romantic companion and, following Carroll's death, she maintained what she termed a father-daughter relationship with Eschbach.

After Eschbach's death, appellant sued appellee for tortiously interfering with the inheritance he expected to receive from Eschbach. The basis of his claim was Eschbach's execution of a trust on May 30, 2001, in which Eschbach deeded 180 acres of land - virtually his entire estate - to an irrevocable trust, of which appellee was named trustee. The trust provided that, upon Eschbach's death, 160 acres would be immediately distributed to appellee, and the other 20 acres would remain in trust for Eschbach's four step granddaughters (including appellant's two daughters). In his complaint, appellant alleged that appellee made misrepresentations to Eschbach and unduly influenced him to execute the trust, thereby depriving appellant of an inheritance. Later, appellant also claimed that Eschbach had made a will leaving at least part of his property to appellant and that appellee destroyed the will.

After the suit was filed, appellee moved for summary judgment, which the trial court granted on the grounds that: 1) Arkansas has never recognized the tort of interference with an inheritance and would not do so under the facts of this case; 2) even if the tort were recognized, appellant failed to make a prima facie showing that he could prove to a reasonable certainty that he would have received an inheritance but for appellee's interference; 3) even if the tort were recognized and it was assumed that appellant had an expectancy to inherit, appellant failed to make a prima facie case that appellee engaged in fraud, duress, or other tortious conduct. Appellant now appeals from that order.

Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002). The purpose of summary judgment is not to try the issues but to determine whether there are any issues to be tried. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

The elements of the tort of interference with an expected inheritance are: 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. See Geduldig v. Posner, 129 Md. App. 490, 743 A.2d 247 (1999). Accord Restatement (Second) of Torts § 774B (1979). While some states have recognized the tort and others have rejected it, Arkansas has yet to decide the issue. See Jackson v. Kelly, 345 Ark. 151, 44 S.W.3d 328 (2001) (holding that, under the circumstances of that particular case, the tort would not be recognized). Appellant argues that his circumstances are different from those of the plaintiff in Jackson v. Kelly and, thus, the tort should now be accepted under Arkansas law. However, we need not reach that issue because we agree with the trial court that, even if the cause of action were recognized, appellant could not prove an essential element of it, namely that appellee committed tortious acts such as fraud, duress, or undue influence that interfered with an expectancy to inherit.

In his response to appellee's motion for summary judgment, appellant showed that appellee assisted Eschbach in gathering information about trusts and that she visited an attorney on Eschbach's behalf to have the trust drafted. However, in his deposition, appellant said the following when asked if he had any reason to believe that appellee had unduly influenced Eschbach:

Appellant: I don't have any reason to say that he didn't know what he was doing.

....

Appellant basically acknowledged that Eschbach knew what he was doing when he drafted the trust and further said that he did not know how Eschbach was influenced by appellee. His own words therefore belie his claim of undue influence. See generally Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997).

As for appellant's claim that appellee destroyed Eschbach's will, even if we assume that a will existed, appellant's contention that appellee destroyed it is sheer conjecture. His claim is based on the statements of several persons that Eschbach may have executed a will at some point; on appellee's statement in her affidavit that, after Eschbach's death, she cleaned out his house and burned some "old junk"; and, on appellee's deposition testimony that she went through Eschbach's papers and did not find a will. These matters support nothing beyond pure speculation that appellee destroyed Eschbach's will. Therefore, appellant has not shown that a genuine issue of material fact remains to be decided on this point. See generally Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).1

For the reasons stated, we affirm the trial court's grant of summary judgment.

Gladwin and Neal, JJ., agree.

1 We also note that appellant falls short of the clear and distinct proof required by Ark. Code Ann. § 28-40-302 (Repl. 2004) for proving a lost or destroyed will.