
    Kristine Sandoz ALLEN; Eric S. Sandoz, Plaintiffs-Appellants, v. Sheryl Ann HALL; Daniel Hall, Defendants-Appellees.
    No. 96-35996.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 2, 1998.
    Decided March 19, 1998.
    Before: FERNANDEZ, RYMER, and TASHIMA, Circuit Judges.
   FERNANDEZ, Circuit Judge.

Kristine Sandoz Allen and Eric S. Sandoz (collectively Sandoz) brought this tort action against Sheryl Ann Hall and Daniel Hall for intentional interference with prospective inheritance, a tort which the Oregon courts have not yet embraced or rejected. The district court dismissed on the ground that the Supreme Court of Oregon would not recognize the tort.

The complaint alleged: that the Sandozes had an expectancy to inherit from their uncle, Gregory Putman; that the Hills intentionally interfered with that expectancy; that the Hills did so by the most egregious of independently tortious conduct — fraud committed upon Putman’s attorney to keep her from bringing the new will to her client, and personal injury inflicted upon Putman by forcing him into a medical facility and then lying in order to cut off his life support systems so that he would die forthwith and not change his will; that Putman would have left property to the Sandozes; and that they suffered damage as a result.

There are considerations both in favor of and against recognition of the tort of intentional interference with prospective inheritance. Recognition presents dangers to the enforcement of the decedent’s desire to dispose of property by will, and to the orderly operation of the probate system. That may well result in the raising of claims of undue influence and the like through the medium of suing beneficiaries directly in tort, rather than attacking the decedent’s dispositions themselves. Those dangers are illustrated by some of the cases in this area. See Anderson v. Meadowcroft, 339 Md. 218, 226-27, 661 A.2d 726, 730 (1995); Frohwein v. Haesemeyer, 264 N.W.2d 792, 794-95 (Iowa 1978). Moreover, because of the special dangers of tort litigation over what a now deceased person would have done, the tort is not like the other sorts of intentional interference torts which have been recognized in Oregon. Cf. Straube v. Larson, 287 Or. 357, 360, 600 P.2d 371, 373-74 (1979) (contractual relations); McBride v. Magnuson, 282 Or. 433, 435, 578 P.2d 1259, 1260 (1978) (personal relations); Johnson v. Oregon Stevedoring Co., Inc., 128 Or. 121, 133-37, 270 P. 772, 776-77 (1928) (employment relations). In addition, a tort claim against heirs is quite different from a mere breach of contract or negligence action against a lawyer, who has not followed a testator’s instructions. See

Hale V. Groce, 304 Or. 281, 284-86, 744 P.2d 1289, 1290-92 (1987). Moreover, actions which allow an heir or beneficiary to sue to set aside a fraudulent conveyance are not at all similar to this tort. They do not affect or deflect testamentary or intestate dispositions of property by the decedent. They merely bring the property back into the estate of the decedent for appropriate disposition in the usual course of things. See e.g., Brown v. Hilleary, 133 Or. 26, 27-28, 286 P. 593, 594 (1930); Groesbeck v. Groesbeck, 49 Or. 113, 117, 88 P. 870, 872 (1907). Finally, Oregon, like other states, has made it clear that it is not inclined to allow what amount to collateral attacks on the determinations of courts sitting in probate. See Wilson v. Hendricks, 164 Or. 486, 491, 102 P.2d 714, 716 (1940). That insistence (along with formalities for executing or revoking wills) helps to avoid fraud, mistake, and a great deal of second guessing about what the decedent really meant to do or what he really might have done. Cf. Walker v. Walker, 145 Or.App. 144, 149, 929 P.2d 316, 319 (1996); In re Neil’s Estate, 111 Or. 282, 290, 226 P. 439, 441 (1924).

On the other hand, the trend is to give some relief where the attack is not upon what the testator did, but, rather, is based upon a claim that egregious acts by others have prevented the decedent from executing a new will or from revoking an old one. See, e.g., Restatement (Second) of Torts § 774B cmt. c (1977) (discussing intentional interference with prospective inheritance); Thomas E. Atkinson, Handbook of the Law of Wills 270-71 (fraudulent prevention of execution of will-constructive trust or damage action available), 421-22 (fraudulent prevention of revocation-constructive trust) (2d ed.1953); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 130, at 1007-08 (5th ed.1984); George L. Blum, Annotation, Action for Tortious Interference with Bequest as Precluded by Will Contest Remedy, 18 A.L.R. 5th 211, 1994 WL 906436 (1994); Sonja A. Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R.4th 1229, 1983 WL 191057 (1983). That is particularly true where, as here, the probate court is not actually in a position to grant relief. See e.g., Glickstein v. Sun Bank/Miami, 922 F.2d 666, 673-74 (11th Cir.1991); Peffer v. Bennett, 523 F.2d 1323, 1325-26 (10th Cir.1975); McGregor v. McGregor, 101 F.Supp. 848, 850 (D.Colo.1951). And, at least in a probate contest regarding a fraudulently revoked will, the Oregon Supreme Court has pointed out that in this area the underlying “principle is that the law will not permit improper influences to control the disposition of a person’s property.” In re Estate of Reddaway, 214 Or. 410, 418, 329 P.2d 886, 889 (1958). If the Oregon Supreme Court gave that principle sufficient weight to outbalance the dangers of allowing tort actions in this area, it would follow the trend.

If the tort of intentional interference with prospective inheritance is rejected as a theory of recovery, the judgment in favor of Halls must be affirmed. On the other hand, if it is accepted as a theory of recovery, the San-dozes may well have stated a cause of action. Thus, the existence of that tort, and the nature of its elements, may well be disposi-tive of this case.

CERTIFICATION OF QUESTIONS

Questions of Oregon state law may be determinative of this cause. We have, however, found no controlling precedent in the decisions of the Supreme Court of Oregon or in the intermediate appellate courts of Oregon. In addition to meeting the requirements for certification under ORS 28.200, the factors outlined in Western Helicopter Servs. v. Rogerson Aircraft Corp., 311 Or. 361, 366-70, 811 P.2d 627, 631-34 (1991), counsel in favor of a decision by Oregon’s highest court on this issue that involves the relationship as a matter of policy between the proposed tort remedy and the Probate Code. We, therefore, respectfully request that the Supreme Court of Oregon exercise its discretion pursuant to the Uniform Certification of Questions of Law Act, Oregon Revised Statutes §§ 28.200-255, and answer the following questions:

(1) Does Oregon recognize the tort of intentional interference with prospective inheritance?

(2)If a tort action for intentional interference with prospective inheritance is available, what are the elements of that tort?

OTHER ORDERS

(1) The Clerk of this Court shall transmit to the Supreme Court of Oregon a certified copy of this order, as well as the appellate briefs for this ease.

(2) Pursuant to Oregon Rule of Appellate Procedure 12.20(5)(c) the Clerk of this Court shall transmit to the Supreme Court of Oregon all or any portion of the district court record in this ease as that Court deems necessary or appropriate.

(3) The parties to this action and their counsel are:

Kristine Sandoz Allen; and Eric S. Sandoz
Margaret Fiorino, Esq. Julie R. Vaeura, Esq. Suite 580 Fiorino & Vaeura 808 S.W. Third Avenue Portland, Oregon 97204
Sheryl Ann Hall; and Daniel Hall
Sarah Ryan, Esq. 101 S.W. Main Portland, Oregon 97204

(4) If the Oregon Supreme Court declines certification, we will resolve the issue according to our perception of Oregon law.

(5) The panel retains jurisdiction over further proceedings in this court. If the Oregon Supreme Court answers in the affirmative to question one, we will reverse the judgment of the district court and remand for further proceedings consistent with the Oregon Supreme Court’s opinion. If the Oregon Supreme Court answers in the negative to question one, we will affirm the judgment of the district court.

(6) The parties shall file a report with this Court on the status of this case on or before the anniversary of this Order and each anniversary thereafter.  