March 3, 2015

Conspiracy has been something of a hot topic in civil litigation in recent years. While a wide range of activities have been used as the basis for a claim in conspiracy, it is not frequently seen in the estate litigation context. That may change, however, as the tort continues to  be adapted and modified by the courts.

First off, what exactly is conspiracy? The tort of conspiracy encompasses two related categories: the first is sometimes called “unlawful means conspiracy,” and the second is sometimes called “unlawful conduct conspiracy.” Unlawful means conspiracy is committed when a group of people act in combination by agreement, the “predominant purpose” of their conduct is to cause injury to the plaintiff, and actual damage is suffered by the plaintiff. The tort is committed whether the means used were lawful or unlawful – the key question is whether the defendants’ predominant purpose was to injure the plaintiff.

The second category, unlawful conduct conspiracy, involves five separate elements: (i) the defendants act together in combination, by agreement or design; (ii) their conduct is unlawful; (iii) their conduct was directed toward the plaintiff; (iv) the defendants knew or ought to have known that injury was likely to result; and (v) the defendants’ conduct actually caused injury.

The key difference between the two seems to be the predominant purpose: the second category, “unlawful conduct conspiracy,” does not require that the defendants predominant purpose was to cause injury to the plaintiff. In some ways, the second category is broader.

Presumably, the tort applies in estates litigation context. A jilted beneficiary may claim that her father wrote her out of the will because of a conspiracy by her brothers to unduly influence their father from including her amongst the beneficiaries. Such a claim could be independent of a claim for undue influence. One of the challenges for plaintiffs alleging a tort of conspiracy is to establish that an underlying tort was committed – a requirement in a claim of conspiracy. While there has been some moves in recent years toward recognizing a tort of “tortious interference with inheritance rights,” a recent decision by an Ontario court held that this tort has yet to be accepted, and certainly not before a testator dies or becomes incompetent.

Another issue that may be particularly vexing in estate litigation is the principle of “merger.” The idea is that the plaintiff must plead special damages for conspiracy, which are distinct from the underlying tort. In my jilted beneficiary example, it may not be clear what damages were suffered by the plaintiff beyond what she would receive if the will was held invalid – which is what she’d receive if her claim for undue influence succeeded anyways. There isn’t much judicial guidance on this point. In Dryden v. Dryden, one of the few examples of a conspiracy claim in estate litigation context, the court struck the pleadings of the plaintiff for being overly vague. The facts in Dryden were unusual. After all, courts are generally reluctant to strike out claims of conspiracy by reason of vaguely drafted pleadings, because, by necessity, a plaintiff is likely to know few of the details of the conspiracy during the early stages of litigation.

As estate litigation continues to develop and grow, it will be interesting to watch whether the tort of conspiracy takes hold.