Elham Amini-Nejad, et al. v. Ellahe Amini-Nejad, No. 857, September Term, 2025. Opinion by Graeff, J.
INTENTIONAL INTERFERENCE WITH EXPECTED INHERITANCE —
BURDEN OF PROOF — PREPONDERANCE OF THE EVIDENCE — JURY
INSTRUCTIONS
The Supreme Court of Maryland first recognized the tort of intentional interference with an inheritance in Barclay v. Castruccio, 469 Md. 368 (2020). It was not necessary to determine the burden of proof to prevail on such a claim in that case. In this case, we hold that the burden of proof for a claim of intentional interference with an inheritance is preponderance of the evidence. The circuit court erred in instructing the jury that appellants had to prove their claim by clear and convincing evidence. The erroneous jury instruction imposed upon appellants a higher burden of proof than the law requires, and we cannot determine if the jury may have reached a different result if it had been told to apply the proper burden of proof. The instruction was prejudicial and warrants reversal of the judgment.
Circuit Court for Howard County
Case No. C-13-CV-24-000064
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 857
September Term, 2025
ELHAM AMINI-NEJAD, ET AL.
v.
ELLAHE AMINI-NEJAD
Graeff,
Nazarian,
Wright, Alexander, Jr.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Graeff, J.
Filed: October 28, 2026
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2026.10.28
'00'04- 15:35:31
Gregory Hilton, Clerk
This case arises from a dispute between sisters regarding testamentary documents
in the name of their father, Seyedkazem Amini-Nejad (“Decedent”). Elham Amini-Nejad
and Eman Amini-Nejad, appellants, filed a complaint in the Circuit Court for Howard
County, requesting that Decedent’s trust be voided and Ellahe Amini-Nejad, appellee,
compensate them for interference with their expected inheritance of Decedent’s estate.
After a four-day trial, the jury returned a verdict in favor of appellee. It determined
that appellants had a reasonable expectation of receiving an inheritance, but it found that
appellee did not intentionally interfere with that reasonable expectation by engaging in
wrongful conduct with the purpose of interfering with that expectation.
On appeal, appellants present the following questions for this Court’s review, which
we have rephrased slightly, as follows:
1. Did the circuit court abuse its discretion in instructing the jury that
appellants were required to prove their claim for intentional
interference with an expected inheritance by clear and convincing
evidence?
2. Did the circuit court abuse its discretion in admitting the remote
deposition testimony of Kooresh Sobhani, the attorney who drafted
the trust?
3. Did the circuit court abuse its discretion in excluding appellants’
handwriting expert?
For the reasons set forth below, we shall reverse the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Decedent spent most of his life in Iran. He owned a shipping company with two
partners, and he traveled to the United States to visit his family and obtain medical
treatment. Decedent had three daughters, all of whom lived in the United States.
In March 2019, Decedent was in the United States for a visit. Appellee testified that
Decedent asked her to make an appointment with Mr. Kooresh Sobhani, Decedent’s
attorney, for estate planning.
On March 22, 2019, Decedent executed a Last Will and Testament (the “Will”). The
Will stated: “I hereby bequeath and devise all my cash, liquid assets, interests, stocks,
shares, bank accounts, life insurance policies, and my retirement benefits from any prior
employer, provider or source, and interest to, my eldest daughter, Ms. Ellahe AminiNejad.” Appellee was the only one of the three sisters that Decedent provided for in the
Will. Decedent named appellee as the Will’s “Executrix/Personal Representative.”
On March 22, 2019, the same day Decedent executed the Will, Decedent executed
a Declaration of Irrevocable Trust titled “Chilren of Glenelg.” On March 26, 2019, the
Decedent executed another Declaration of Irrevocable Trust titled “S.K. Amini’s Trust of
Maryland” (the “Trust”). The only notable change from the “Chilren of Glenelg” trust to
the Trust, in addition to the name, was the addition of language granting appellee, the
Trust’s Trustee,1 the ability to name a substitute Trustee if she was unable or unwilling to
perform as Trustee. Decedent transferred $3,199,794 from the “Chilren of Glenelg” trust
account to the S.K. Amini Maryland Trust account.
Appellee was the only beneficiary named in the Trust. The Trust did not mention
appellants. The Trust listed multiple assets of the Trust, including: all bank accounts,
1
Appellee was listed as the primary and only trustee in both the “Chilren of Glenelg” trust and the “S.K. Amini’s Trust of Maryland” trust.
2
stocks, bonds, accounts receivable, business assets, real estate, motor vehicles, personal
property, and assets of any kind wherever located.
In August 2021, Decedent transferred the deed of the family home in Tehran, Iran,
to his three daughters.
On May 23, 2023, at the age of 95, Decedent died. Appellants and appellee travelled
to Iran for his funeral. They stayed at Decedent’s residence and searched for Decedent’s
personal documents. Eman found a folder, containing a will, trust, power of attorney, bank
documents, and emails, and she gave it to Elham.2 When Elham reviewed the Will, it had
a piece of paper attached to it with words written in Farsi.3 She recognized the handwriting
as appellee’s handwriting. The note stated: “The will, while living and in the presence of
three children, and must be in accordance to the law, inheritance and so on. Again,
according to the available documents, Ellahe Amini-Nejad will be responsible for these
affairs in every respect with the heirs and so on.”4
Elham also found a document titled “Trustee’s Acceptance of the Trust
Appointment,” with a note written in Farsi in appellee’s handwriting on top. The note
stated: “Duly authorized representative is Ellahe Amini-Nejad in every respect who has
accepted this responsibility. The name of the trust has been changed to S.K. Amini Trust
2
Because appellants and appellee have the same last name, we refer to the parties by their first name. In doing so, we mean no disrespect.
Farsi is “the modern Persian language that is the official language of Iran.” Farsi,
3
New Oxford Dictionary 628 (3d ed. 2010).
4
The court admitted a certified English translation of the note written in Farsi.
3
of Maryland.”5 The folder also contained a “Declaration of Irrevocable Trust” for S.K.
Amini’s Trust of Maryland, with a handwritten Farsi note attached. In English, the note
read “The regulations for doing all affairs (both enter and exit) must be done. The name of
the trust has been changed to S.K. Amini Trust of Maryland.”
On January 24, 2024, appellants filed a complaint in the Circuit Court for Howard
County. They alleged that Decedent’s trust was void ab initio due to appellee’s fraud and
undue influence on Decedent, that appellee interfered with appellants’ right to inherit from
Decedent’s estate, and that appellee exploited Decedent in violation of Maryland’s Statute
Against Financial Exploitation (SAFE) Act by intentionally converting Decedent’s assets
for appellee’s sole benefit.
That same day, the court issued a scheduling order assigning the case to the
expedited track. The parties were required to identify their experts, with the substance of
their opinions, by June 23, 2024. The court ordered that discovery conclude by August 22,
2024.
On June 21, 2024, appellants filed a designation of expert witnesses, identifying
Marc Levine, Esq., Rob Lesnevich, and Professional Language Solutions. Regarding Mr.
Lesnevich, appellants stated that he would “review and analyze the handwriting on the
testamentary documents and other handwritten materials associated” with the case that
were created by appellee or Decedent. Appellants noted that Mr. Lesnevich had not yet
issued a report, and they would timely amend the designation.
5
The court admitted a certified English translation of the note written in Farsi.
4
On August 9, 2024, appellee filed a motion for summary judgment, asserting that
there was no dispute that Decedent possessed testamentary capacity and was not subject to
undue influence, and appellants had no “right” to inherit property from a parent who
exercised free choice with respect to his Estate plan. Appellee attached, among other
things: (1) an affidavit from Decedent’s doctor stating that Decedent did not have
diminished capacity during his medical visits; and (2) an affidavit from Mr. Sobhani, the
attorney who drafted Decedent’s will. In his affidavit, Mr. Sobhani stated that he “provided
legal estate planning services” for Decedent, and he believed the Will and Trust were
created based on Decedent’s own intent and wishes. Mr. Sobhani stated that he believed
Decedent had the requisite legal capacity to execute the Will and Trust, Decedent knew of
the contents of the Estate Plan, he spoke to Decedent both in Farsi and English in their
discussions of the Estate Plan, he met with Decedent alone “several times” throughout the
estate planning services, Decedent signed the Estate Plan freely and voluntarily in the
presence of Mr. Sobhani and two witnesses, he believed Decedent was not “susceptible to
the influence” of appellee or others, and Decedent’s intentions to grant his property to only
appellee seemed “deliberate and clear.” He stated that there were no “material changes”
from the first trust to the second trust, and the main purpose of the creation of the second
trust was to change the name.
On April 29, 2025, the court denied the motion. It found that the case presented a
genuine dispute of material fact as to the capacity of Decedent and the issue of undue
influence.
5
On August 22, 2024, appellants filed a motion to extend discovery, alleging that
appellee had failed to produce bank statements needed to show that she used money
belonging to Decedent during his lifetime, and they needed to depose Mr. Sobhani, who
recently had been added as a witness for appellee. Appellee filed a response in opposition
to the appellants’ motion to extend discovery, arguing that appellants delayed in executing
a confidentiality agreement to protect the sensitive financial records appellants requested,
and appellee had earlier made clear to appellants that Mr. Sobhani would be a material
witness. On September 6, 2024, the court denied appellants’ motion to extend discovery.
On March 21, 2025, appellee filed a motion for remote appearance of Mr. Sobhani
for trial, stating that Mr. Sobhani was domiciled in Florida, and he had a preplanned visit
from an immediate out-of-state family member during the week of trial. Appellee noted
that appellants opposed Mr. Sobhani being permitted to testify remotely.
In appellants’ opposition to the motion, appellants alleged that Mr. Sobhani
displayed evasive behavior when their counsel spoke with him prior to the filing of the
complaint, and they had attempted to depose him, but they could not obtain service at his
listed place of employment in Virginia. They argued that appellee did not list Mr. Sobhani
as a witness until August 9, 2024, which was close to the discovery deadline of August 22,
2024. They were willing to work with opposing counsel to have Mr. Sobhani scheduled for
a particular time to testify.
6
On March 28, 2025, a judge denied appellee’s motions.6 That same day, March 28,
2025, appellees transmitted a Notice of Videotaped Deposition De Bene Esse of Mr.
Sobhani.7
On April 4, 2025, appellants filed a motion to strike the notice regarding Mr.
Sobhani’s de bene esse deposition, alleging that Mr. Sobhani had “been (at best) squirrely,”
and his behavior “should not be rewarded with the convenience of remotely testifying.”
Appellants argued that appellee was “attempting to skirt the rules of evidence to have Mr.
Sobhani’s testimony presented at” trial, noting that the notice was filed approximately five
hours after the court denied appellee’s motion to permit Mr. Sobhani to testify remotely.
On April 11, 2025, appellee filed an opposition to appellants’ motion to strike. She
alleged that appellants were on notice that appellee intended to call Mr. Sobhani as a
witness because it was discussed during appellee’s deposition on June 11, 2024.8
A judge, different from the trial judge, issued an order granting the motion to strike
the deposition. The date on the order is April 26, 2025, but it was not entered until May 2,
2025, after the trial court heard argument on the issue and granted the motion to allow the
deposition to be admitted at trial.
6
This was not the judge who presided over the trial.
7
“De bene esse is defined: ‘[a]s conditionally allowed for the present; in anticipation of a future need.’” Shannon v. Fusco, 438 Md. 24, 34 n.14 (2014) (quoting Black’s Law Dictionary 430 (8th ed. 2009)).
8
Appellee stated at her deposition that Mr. Sobhani was a prime witness, and it was an oversight not to name him as a witness, but she did not need to name him because appellants were “going to probably bring him in.”
7
I.
Trial
The court held a four-day jury trial, beginning on April 29, 2025.
A.
De Bene Esse Deposition
At the beginning of trial, the court noted that there was an outstanding issue
regarding a de bene esse deposition.9 Counsel for appellants argued that appellee’s notice
for a de bene esse deposition was an attempt to allow remote testimony, which the court
had previously denied in March 2025, and it was a “non-request to extend discovery,”
which was denied in 2024. Counsel noted that the de bene esse deposition was completed
remotely, and Maryland Rule 2-418 required either the consent of both parties or an order
of the court, neither of which occurred. Counsel also alleged that appellee changed the date
of Mr. Sobhani’s deposition without inquiring regarding appellants’ availability and
proceeded to complete the deposition when appellants were not available.
Counsel for appellee argued that the case involved exceptional circumstances and
the deposition was admissible pursuant to Maryland Rule 2-419(a)(3)(e).10 Mr. Sobhani
9
It appears that neither the court nor the parties were aware of the order by a different judge on the issue, presumably because it was not entered on the docket until May 2, 2025.
10
Maryland Rule 2-419(a)(3) provides:
(3) The deposition of a witness, whether or not a party, may be used by any
party for any purpose against any other party who was present or represented
8
was in Florida, more than 1,000 miles away, and counsel argued that there was no way to
procure Mr. Sobhani’s appearance by subpoena. Although appellee did not supplement her
answers to interrogatories until near the end of discovery, she stated in her deposition, taken
in June 2024, that Mr. Sobhani was a key witness in the case. Appellee argued that the de
bene esse deposition was “an attempt to preserve testimony for a witness that’s crucial,
really, to the [appellants’] case . . . [because] [t]his is a case where the [appellants] have to
set aside a document that’s facially presumed valid until they meet their burden of proof.”
Counsel stated that, on March 28, 2025, he sent an email to counsel for appellants, stating
that Mr. Sobhani’s deposition was tentatively set for April 23, 2025, but he would work
with opposing counsel on a date. He did not receive a response. On April 22, counsel
advised appellants that the remote deposition de bene esse would commence on April 24
at 1:00. A couple of minutes later, counsel for appellants responded that they did not
consent to a remote deposition, and the court denied a remote proceeding for trial, so they
would not attend the deposition.
The court ruled that Mr. Sobhani’s de bene esse deposition could be presented to
the jury. It found that appellants’ counsel was on notice of the date and time of the
at the taking of the deposition or who had due notice thereof, if the court
finds:
* * *
(E) upon motion and reasonable notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice
and with due regard to the importance of presenting the testimony of
witnesses orally in open court, to allow the deposition to be used.
9
deposition, and they had the opportunity to attend, but they chose not to for strategic
reasons. The court noted, however, that counsel still had the opportunity to make specific
objections to the content of portions of the deposition.
B.
Testimony of the Sisters
Each of the three sisters testified. We discuss each sister’s testimony in turn.
1.
Ellahe
Appellee was the oldest of the three sisters. When Decedent would visit appellee,
she made medical appointments for him. Appellee also assisted Decedent with some
financial matters.
Decedent created a trust during his lifetime, with the help of his lawyer, Mr.
Sobhani. Appellee drove Decedent to Mr. Sobhani’s office in Virginia in March 2019.
Appellee did not know what Decedent intended to do in his meetings with Mr. Sobhani,
and she did not learn of Decedent’s intentions until sometime after the first meeting.
Appellee described herself as “only a vehicle for transportation to and from the lawyer of
his choosing.” Appellee was present at some of the meetings, for exchanges of pleasantries.
She was present at the March 22, 2019, meeting at which she wrote her address on the
“Chilren of Glenelg” trust document.
Appellee identified the signature on page 15 of the trust titled “S.K. Amini’s Trust
of Maryland,” dated March 26, 2019, as Decedent’s signature. Appellee testified that she
10
did not take any action as trustee for the trust during Decedent’s lifetime without discussing
the action with him.
2.
Elham
Elham testified that she was very close with her father, and there had been no issues
between them that would lead to disinheritance. All three sisters were involved in taking
Decedent to appointments when he visited the United States. Leading up to Decedent’s
execution of the testamentary documents that disinherited Elham and Eman, the family met
up for normal, happy visits with each other.
Elham asserted that Decedent spoke only broken English. Based on her experience
with Decedent, he did not have a strong enough understanding of English to read the
relevant legal and testamentary documents written in English.11
Elham learned of the will and trusts in May 2023. Neither appellee nor Decedent
informed Elham about the will and trust. On May 23, 2023, when Decedent died, all three
sisters flew to Iran together. She learned of the will and trusts a few days after Decedent’s
burial.
The sisters looked for Decedent’s testamentary documents while in Iran, and Eman
found a folder of documents, including a will, trust, power of attorney, bank documents,
Elham testified that he could not have read the will, power of attorney, medical
11
power of attorney, or other legal documents admitted into evidence.
11
and documents that originated from appellee’s email account.12 Attached to the Will was a
note written in Farsi, which Elham was a “hundred percent sure” was written in appellee’s
handwriting. Elham also found a document titled “Trustee’s Acceptance of the Trust
Appointment,” and she again identified the handwriting on an attached note, written in
Farsi, as belonging to appellee.
3.
Eman
Eman described her relationship with Decedent as “extremely close.” She testified
that he cared about unity, the three sisters supporting each other, and he hated division
between them. Appellee was in charge of Decedent’s finances. Eman received significant
financial support from Decedent, but she was not involved in Decedent’s finances. Eman
was also “extremely close” with appellee, as she provided appellee with mental support.
She described herself as “like a mother” to appellee’s daughter. Eman observed “serious
arguments” between appellee and Decedent on multiple occasions.
When the three sisters were in Iran after Decedent’s passing, Eman and appellee
argued about Decedent’s money, appellee’s involvement in his finances, and Decedent
buying Eman a house. She had a conversation with appellee about stopping Decedent from
buying a house for Eman. Appellee told Eman that Eman did not “deserve anything good
in life.”
The emails originating from appellee’s email account were regarding transfers of
12
money from banks.
12
C.
Handwriting Expert
On the second day of trial, appellants attempted to call Rob Lesnevich as a witness.
Appellee’s counsel objected, noting that he received Mr. Lesnevich’s report, which was
dated September 5, 2024, within the last week.13 Counsel stated that the scheduling order
required the identification of the substance of an expert’s findings, as well as the production
of any reports, by June 23, 2024. Although appellants noted Mr. Lesnevich as a
handwriting expert in June 2024, they failed to provide his report in a timely manner.
The court sustained the objection based on the scheduling order, stating:
Well, I’m not altogether sold on the idea of handwriting experts, period. And
I’m not quite certain that if there was a Daubert hearing on that, that he would
withstand scrutiny on the issue of handwriting analysis. But the scheduling
order clearly says that your designation shall include the subject matter on
which he’s expected to testify, the substance of the findings and the opinions
which he is expected to testify, and a summary of the grounds for each
opinion and the production of any written report by the expert concerning
those findings. That would all be due by [June] 23rd of 2024, not April of
2025.
Appellants argued that appellee had “to show some level of prejudice” with respect
to the late disclosure, and appellee had made no argument in that regard. Counsel for
appellants stated that he turned over the report as soon as he received it.
In ruling that appellants could not call Mr. Lesnevich as a witness, the court stated:
Well, but as a practical matter, you or he, waited to the last possible minute
to turn over the report. And that, I find, is prejudicial to the defense, in terms
of the time that they then have to respond to the report with an expert of their
13
Appellee also noted concerns regarding whether opinions on handwriting analysis met the Daubert standard. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Rochkind v. Stevenson, 471 Md. 1 (2020).
13
own and/or have an expert of their own review the report. I find that it is
prejudicial and I find that it’s not in compliance with the scheduling order.
And I sustain the objection. It’s also -- they could have asked for a Daubert
hearing on the reliability of the factual basis, and the whole idea of this
handwriting analysis issue is marginal.
* * *
It’s marginal anyway in terms of somebody’s ability to analyze handwriting.
I’ve always been a bit of a skeptic. But my problem with it is that this late
disclosure of the report violates the scheduling order, and I sustain the
objection.
D.
Defense Witnesses
Appellee called several witnesses on her behalf. Those witnesses included Dr.
Bahador Momeni, Mr. Richard Abraham, and Mr. Sobhani. Dr. Bahador Momeni,
Decedent’s doctor, testified that, in March 2019, when he signed the testamentary
documents, he had no concern about Decedent’s capacity.
Appellee also played Mr. Sobhani’s de bene esse deposition over appellants’
objection. The court noted appellants’ objection and allowed the deposition to be played
for the jury. Mr. Sobhani testified that he began providing estate planning services to
Decedent in early 2019. Mr. Sobhani estimated that he met with Decedent for estate
planning purposes approximately five to six times. Based on his interactions with
Decedent, Mr. Sobhani believed that Decedent had the capacity to execute testamentary
documents. Mr. Sobhani ensured that Decedent understood the testamentary documents by
14
speaking to him in both Farsi and English, interchangeably.14 Mr. Sobhani believed
Decedent understood the nature and objects of his bounty due to the specificity with which
Decedent spoke of the objects of his bounty. Mr. Sobhani believed Decedent possessed the
requisite capacity to sign a will and trust as of March 22 and 26, 2019.
Decedent informed Mr. Sobhani that he had three daughters, and he specified that
his eldest daughter, appellee, would be the sole beneficiary and executor of the will and
trust.15 Decedent chose to designate appellee as the sole beneficiary and executor of the
will and trust because he trusted her judgment.
Mr. Sobhani met with Decedent both alone and with appellee present at points
throughout the estate planning process. When appellee was present at meetings, it was per
Decedent’s express request. Appellee did not interfere with Decedent’s meetings with Mr.
Sobhani. Mr. Sobhani did not have any concerns regarding undue influence on Decedent
from any third party, including appellee, because Decedent was clear, competent, and alert
in his conversations with Mr. Sobhani.16 Mr. Sobhani also did not believe Decedent was
acting under duress, noting that what Decedent told Mr. Sobhani alone in his office did not
14
Mr. Sobhani testified that he speaks both English and Farsi fluently, and he has represented many clients who speak Farsi. Mr. Sobhani testified that appellee did not translate the testamentary documents from English to Farsi at the time of execution.
15
Mr. Sobhani testified that Decedent stated he was not “close” with his other two daughters, and he expressed uncertainty about their involvement in his personal affairs.
Mr. Sobhani also asserted that appellee was never allowed to assist in drafting
16
Decedent’s testamentary documents.
15
differ from what Decedent said in front of others or the language he ultimately included
when he executed the testamentary documents.
Mr. Richard Abraham, an attorney whose practice includes estate planning, testified
as an expert witness in estate planning practice, procedure, and interpretation. Mr.
Abraham testified that, in his opinion, Decedent’s estate planning documents were not
procured by appellee’s undue influence, and Decedent did not act under duress in executing
the documents. He testified that Mr. Sobhani’s testimony, as the drafting attorney, was
“extremely valuable” in forming his opinion regarding undue influence.
E.
Jury Instructions/Verdict
At the close of the evidence, the court and counsel discussed proposed jury
instructions. The court then instructed the jury. Relevant to this case, it gave the following
instruction:
Ladies and gentlemen, the [appellants] have asserted the claim of
fraud in this case. A party who contends fraud on the part of another has the
burden of proving the claim by clear and convincing evidence. This burden
of proof requires more than a preponderance of the evidence, but less than
proof beyond a reasonable doubt.
To be clear and convincing, evidence should be clear in the sense that
it is certain, plain to the understanding, and unambiguous, and convincing in
the sense that it is so reasonable and persuasive as to cause you to believe it.
At the conclusion of the instructions, in response to the court’s question whether
there were any objections to the instructions, counsel for appellants stated: “Just what we
mentioned in chambers, the objection about removing the preponderance of the evidence
instruction.” The court then asked if there were any other instructions that the parties
16
wanted the court to give, “other than preponderance” that appellee requested. The parties
responded in the negative.
At 10:49 a.m., the jury began deliberations. By 2:43 p.m., the jury had a verdict.17
The jury found that appellants had a reasonable expectation of receiving an inheritance,
but that appellee did not intentionally interfere with that reasonable expectation by
engaging in wrongful conduct with the purpose of interfering with the expectation.
II.
Post-Trial Motions
On May 9, 2025, appellants filed a motion for a new trial, alleging that Mr.
Sobhani’s de bene esse deposition was admitted because of a clerical mistake or
irregularity, noting that an order granting their motion to strike the deposition was entered
on the same day the judgment was entered. They argued that, because the deposition should
have been excluded, “the matter should be considered a mistrial.”
In her opposition, appellee argued that the trial judge was in a better position than
the “motions judge to assess the admissibility of evidence because of trial events that have
occurred since the motions judge made his or her ruling.” Appellee noted that the trial
judge heard appellants’ case-in-chief, the first two witnesses for the defense, and arguments
17
Although the complaint raised three counts, and the parties’ proposed verdict sheets included questions about all three counts, i.e., undue influence or fraud, intentional interference of an inheritance, and violations of the SAFE ACT, the final verdict sheet limited the questions to ones regarding intentional interference of an inheritance. The record does not reflect why the other two counts were not sent to the jury. It appears that some proceedings, such as the discussion regarding proposed jury instructions, took place in chambers, not on the record.
17
from each party before it ultimately admitted the deposition into evidence. Appellee
requested the court to strike the May 2, 2025 order.
On June 2, 2025, the court denied appellants’ motion for a new trial. It granted
appellee’s motion to strike the May 2, 2025 order.
This appeal followed.
DISCUSSION
Appellants contend that the circuit court erred by instructing the jury that they had
to prove their claim of intentional interference with an expected inheritance by clear and
convincing evidence. They argue that this was a higher burden of proof than the actual
standard applicable, i.e., preponderance of the evidence. Appellants assert that civil claims
involving a loss of money require proof by a preponderance of the evidence, and the
instruction forcing them to meet a higher evidentiary burden than required unfairly
prejudiced them as a matter of law.
Appellee contends that the circuit court properly instructed the jury that appellants
were required to prove their claim of intentional interference with an expected inheritance
by clear and convincing evidence because the wrongful conduct that appellants sought to
prove was “[a]ppellee’s deceit or fraud towards the Decedent.” Appellee asserts that claims
seeking damages for fraud or deceit must be established by clear and convincing evidence.
Appellee additionally argues that, even if the court erred in its instruction, appellants failed
to show prejudice. She asserts that appellants “cannot show that the verdict turned on the
burden of proof rather than on credibility determinations and weight of the evidence.”
18
I.
Standard of Review
“The court may, and at the request of any party shall, instruct the jury as to the
applicable law and the extent to which the instructions are binding.” Md. Rule 4-325(c).
When we review a circuit court’s grant or denial of a requested jury instruction, we
typically apply the abuse of discretion standard. Woolridge v. Abrishami, 233 Md. App.
278, 305, cert. denied, 456 Md. 96 (2017). In determining whether the trial court abused
its discretion, we consider: “(1) whether the requested instruction was a correct statement
of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was
fairly covered in the instructions actually given.” Id. (quoting Keller v. Serio, 437 Md. 277,
283 (2014)).
Here, the question is whether the instruction was a correct statement of the law. For
that specific inquiry, the proper standard of proof is a question of law, which we review de
novo. Howling v. State, 478 Md. 472, 493, cert. denied, 143 S. Ct. 428 (2022); Hayes v.
State, 247 Md. App. 252, 288 (2020).
II.
Intentional Inference with Expected Inheritance
The Supreme Court of Maryland first recognized the tort of intentional interference
with an inheritance in Barclay v. Castruccio, 469 Md. 368, 374-76, 390 (2020). In Barclay,
the Court adopted the standard set forth in Section 19 of the Third Restatement of Torts, as
follows:
19
(1) A defendant is subject to liability for interference with an inheritance or
gift if:
(a) the plaintiff had a reasonable expectation of receiving an
inheritance or gift;
(b) the defendant committed an intentional and independent legal
wrong;
(c) the defendant’s purpose was to interfere with the plaintiff’s
expectancy;
(d) the defendant’s conduct caused the expectancy to fail; and
(e) the plaintiff suffered injury as a result.
(2) A claim under this Section is not available to a plaintiff who had the right
to seek a remedy for the same claim in a probate court.
Id. at 377, 390.
The Court did not discuss in Barclay the burden of proof required to prevail on such
a claim. There was no need to reach that issue in Barclay because the Court held that Ms.
Barclay failed to include sufficient allegations in her complaint to support such a claim. Id.
at 388-90.
In determining whether the trial court here properly instructed the jury on the burden
of proof, we note that the law recognizes three different standards for proving an allegation:
proof by preponderance of the evidence, proof by clear and convincing evidence, and proof
beyond a reasonable doubt. Weisman v. Connors, 76 Md. App. 488, 502 (1988), cert.
denied, 314 Md. 497 (1989). In Maryland, the standard of proof applicable in civil actions
typically is preponderance of the evidence. Shurupoff v. Vockroth, 372 Md. 639, 659
(2003). Accord In re Blair by Blair v. Austin, 469 Md. 1, 21 (2020). To prove something
by a preponderance of the evidence, a party must prove that “something is more likely so
20
than not so.” Mathis v. Hargrove, 166 Md. App. 286, 310 n.5 (2005) (quoting Coleman v.
Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 127 n.16 (2002)); Weisman, 76 Md. App.
at 502.
To be sure, some civil cases “require a more exacting standard because of the
seriousness of the allegations.” Coleman, 369 Md. at 129 (quoting Everett v. Balt. Gas &
Elec. Co., 307 Md. 286, 301 (1986)). The intermediate standard of clear and convincing
evidence is applicable when the individual interests at stake “are both ‘particularly
important’ and ‘more substantial than mere loss of money.’” Shurupoff, 372 Md. at 651
(quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)). For example, when the State
seeks to terminate a person’s parental rights to his or her child, the preponderance of the
evidence standard is inadequate, but the clear and convincing standard satisfies due
process. Id. at 651-53. Similarly, an individual bringing a tort claim of fraud or deceit must
prove the elements by clear and convincing evidence. VF Corp. v. Wrexham Aviation
Corp., 350 Md. 693, 704-06 (1998).
Appellee contends that the clear and convincing standard was proper here because
appellants argued that appellee “defrauded the Decedent to sign an irrevocable trust
granting all of his American-based assets to her.” Appellants argue that appellee
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“misunderstands the basis of [their] claim,” which they assert alleged a “plethora of
wrongful conduct, not all of which sounded in fraud.”18
As explained below, we conclude that the proper burden of proof for a claim of
intentional interference with an inheritance is preponderance of the evidence. Several
factors lead to this conclusion.
First, in recognizing the cause of action, the Supreme Court of Maryland noted that
Maryland recognized a claim for wrongful interference with contractual or economic
relations. Barclay, 469 Md. at 374. It stated that, “[l]ogically, interfering with an expected
inheritance is just a species of interference with economic expectancy,” albeit with the need
to protect the jurisdiction of the probate court. Id. at 380.
The burden of proof for a claim of wrongful interference with economic relations is
preponderance of the evidence. Med. Mut. Liab. Soc’y of Md. v. B. Dixon Evander and
18
Appellants state that their
claim at its core is that [Decedent] did not understand the terms
of the will and trust that he purportedly signed because they
were written in a language he did not speak (English).
[Appellee] acted wrongfully in procuring [Decedent’s]
signature on those testamentary documents, which did not
carry out [Decedent’s] wish that all of his assets be distributed
equally among his three children. [Appellee] further acted
wrongfully by placing Farsi-language notes on the
testamentary documents to suggest that [Decedent’s] estate
would be divided among his three children. In addition,
[Appellee] acted wrongfully by taking money out of
[Decedent’s] trust accounts to use for her own benefit, leaving
virtually nothing to pass to [Decedent’s] estate, which
[Decedent] had intended to benefit all of his children.
22
Assocs., 339 Md. 41, 53-54 (1995) (“[T]he burden is on the plaintiff to prove by a
preponderance of the evidence that ‘it is more probable than not that defendant’s act caused
his injury.’” (quoting Fennell v. S. Md. Hosp., 320 Md. 776, 787 (1990)). Accord Lyon v.
Campbell, 120 Md. App. 412, 431, cert. denied, 350 Md. 487 (1998) (to create a jury issue
in a claim for tortious interference with contract or business relationships, “a plaintiff need
only introduce evidence to show that, more likely than not, the defendant’s wrongful
conduct caused the injury alleged”). Because the Court adopted the tort of wrongful
interference with inheritance on the ground that it logically was a species of interference
with economic expectancy, it makes sense that the burden of proof should be the same.
Second, in recognizing the tort of interference with an inheritance, the Court
adopted the standards set forth in the Third Restatement of Torts. Barclay, 469 Md. at 377,
390. In the comments of Section 19 of the Third Restatement of Torts, the Restatement
indicates that the preponderance of the evidence standard applies, stating:
A successful claim under this Section generally requires proof that the
plaintiff more likely than not would have received benefits by inheritance or
gift but for the defendant’s intentional wrongdoing. In a case involving
interference with inheritance, the plaintiff typically seeks to show that the
testator’s assets would have passed to the plaintiff in the absence of the
defendant's interference.
Restatement (Third) of Torts: Liab. For Econ. Harm § 19 cmt. d (2020).
Third, other courts, but not all, have adopted a preponderance of the evidence burden
of proof for tortious interference claims. For example, in Am. Diamond Exch., Inc. v.
Alpert, 920 A.2d 357, 371 (Conn. App. Ct. 2007), cert. denied, 931 A.2d 261 (Conn. 2007),
the Appellate Court of Connecticut rejected the claim that the plaintiff’s burden of proof
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for a claim of tortious interference with a business expectancy was clear and convincing
evidence, rather than by the preponderance of the evidence. The court reasoned that,
although the complaint alleged fraudulent acts, the court was not required “to find that she
committed any fraudulent acts herself.” Id. It stated that the tortious interference claim was
satisfied “simply by the plaintiff’s having demonstrated that the defendant intentionally
interfered with its business relations without justification.” Id. at 372. The court held that
in a tortious inference case, the burden of proof was a preponderance of the evidence. Id.19
Similarly, in New Mexico, relying on the general rule that issues in civil cases be
established by a preponderance of evidence, the Court of Appeals held that a claim of
tortious interference with an inheritance need only be established by a preponderance of
the evidence. Peralta v. Peralta, 131 P.3d 81, 84 (N.M. Ct. App. 2005). But see Wickert v.
Burggraf, 570 N.W.2d 889, 890 (Wis. Ct. App. 1997) (the burden of proof for intentional
interference with an expected inheritance through undue influence is “clear, satisfactory
and convincing evidence” (quoting In re Estate of Sensenbrenner, 278 N.W.2d 887, 890
(Wis. 1979))).
For the reasons set forth above, we hold that the burden of proof for a claim of
intentional interference with an inheritance is preponderance of the evidence. The circuit
19
Sixteen years later, in Solon v. Slater, 287 A.3d 574, 593 n.14 (Conn. 2023), the Supreme Court of Connecticut declined to address the burden of proof for a claim of tortious interference with the right of inheritance because the plaintiff had not briefed this “complex legal issue” and courts had reached conflicting results, citing Peralta v. Peralta, 131 P.3d 81 (N.M. Ct. App. 2005), and Wickert v. Burggraf, 570 N.W.2d 889 (Wis. Ct. App. 1997).
24
court erred in instructing the jury that plaintiffs had to prove that claim by clear and
convincing evidence.
That, however, is not the end of the inquiry. We next assess whether the erroneous
instruction warrants reversal of the jury’s verdict.
As the Supreme Court of Maryland has explained:
In a civil case, a legal error in a jury instruction does not necessarily mandate
reversal. To overturn a jury verdict, a jury instruction must not only be
incorrect legally, but also prejudicial. CSX Transportation, [Inc. v. Pitts,] 430
Md. [431,] 458, 61 A.3d 767; Barksdale v. Wilkowsky, 419 Md. 649, 657, 20
A.3d 765 (2011). In other words, “[i]t has long been the policy in this State
that this Court will not reverse a lower court judgment if the error is
harmless.” Flores v. Bell, 398 Md. 27, 33, 919 A.2d 716 (2007). The party
that seeks to overturn the jury verdict in a civil case on the basis of an
erroneous jury instruction has the burden of demonstrating that prejudice was
not just possible, but probable, in the context of the particular case.
Barksdale, 419 Md. at 658-70, 20 A.3d 765.
Armacost v. Davis, 462 Md. 504, 524 (2019).
In determining whether an error was prejudicial or harmless, this Court must engage
in a case-specific analysis, balancing the probability of prejudice with the circumstances
of the particular case. Barksdale, 419 Md. at 662. To establish reversible error, however,
the complaining party “must show that prejudice was ‘likely’ or ‘substantial.’” Id. (quoting
Crane v. Dunn, 382 Md. 83, 91 (2004)). The complaining party “must show more than that
prejudice was possible; she must show instead that it was probable.” Id. at 662. “An
erroneous instruction may be prejudicial if it is misleading or distracting for the jury.” CSX
Transp., Inc. v. Pitts, 430 Md. 431, 463 (2013) (quoting Barksdale, 419 Md. at 669). “An
error may also be prejudicial if the error, by itself, could have precluded a finding
of liability where one was warranted.” Barksdale, 419 Md. at 669. “[I]n certain cases, the
25
mere inability of a reviewing court to rule out prejudice, given the facts of the case, may
be enough to declare an error reversible.” Id. at 670.
Appellee argues that the error was harmless because “[t]he jury heard substantial
evidence that the Decedent was cognitively intact, understood complex matters, and acted
voluntarily at the time of the challenged transactions.” She asserts that “the jury was
entitled to reject Appellants’ theory even under a lower standard,” and appellants failed to
show “that the verdict turned on the burden of proof rather than on credibility
determinations and weight of the evidence.”
In its instructions, the circuit court imposed upon appellants a higher burden of proof
than the law requires. It may be that, in a case where there is overwhelming, uncontradicted
evidence in support of the jury’s verdict, an instruction imposing a higher burden of proof
on the plaintiffs could be harmless. On the record here, however, we cannot determine if
the jury may have reached a different result if it had been told to apply the proper burden
of proof.
In Weisman, where the court similarly instructed the jury to apply a higher burden
of proof than warranted, we found that the erroneous instruction was prejudicial. See 76
Md. App. at 506 (instruction that trier of fact must be “left without reasonable doubt” in
case requiring proof by clear and convincing evidence was prejudicial and entitled plaintiff
to a new trial). We reach the same conclusion here.
Because we reverse on the jury instruction issue, and because the second and third
issues may not arise again on retrial, we will not address them. We note that concerns
26
regarding timing and notice were the basis for the circuit court’s rulings on those issues,
and we leave it to the trial court to decide whether to allow additional argument or
discovery in any retrial.
JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY REVERSED.
COSTS TO BE PAID BY APPELLEE.
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