Archer v. Anderson, No. 16-0256 (Tex. June 22, 2018) ("The tort of intentional interference with inheritance is not recognized in Texas. The decisions of the courts of appeals to the contrary are overruled.")
Last Term, in Kinsel v. Lindsey, we noted that Texas has never recognized a cause of action for intentional interference with inheritance but left open the question whether we should do so.1 Today, to eliminate continuing confusion over the matter and resolve a split among the courts of appeals, we answer that question.
Because existing law affords adequate remedies for the wrongs the tort would redress, and because the tort would conflict with Texas probate law, we hold that there is no cause of action in Texas for intentional interference with inheritance. We affirm the judgment of the court of appeals.2
1 526 S.W.3d 411, 423 (Tex. 2017) (“Neither our precedent nor the Legislature has blessed tortious interference with an inheritance as a cause of action in Texas. Its viability is an open question.”).
RICHARD T. ARCHER, DAVID B. ARCHER, CAROL ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER BALL, AND SHERRI ARCHER v. T. MARK ANDERSON AND CHRISTINE ANDERSON, AS CO-EXECUTORS OF THE ESTATE OF TED ANDERSON; from Travis County; 3rd Court of Appeals District (03-13-00790-CV, 490 SW3d 175, 03-02-16)
The Court affirms the court of appeals' judgment.
Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Guzman, Justice Devine, and Justice Blacklock joined.
Justice Johnson delivered an opinion, concurring in part and dissenting in part, and concurring in the judgment, in which Justice Lehrmann, Justice Boyd, and Justice Brown joined.
|Phil Johnson would not go as far|
would keep potential interference tort available as gapfiller
if no other remedy would cover the situation.
I join the Court’s judgment but dissent from its blanket rejection of the type of cause of action the Archers asserted. The cause of action is designed to protect persons damaged by another’s intentional interference with a benefit that the persons in reasonable likelihood would have received as an inheritance absent the interference.
I would not now foreclose the option of a tort action for intentional interference with inheritance to be used in circumstances where no alternative adequate remedy is available, and the tort would provide the only avenue for relief. The appropriate situation for recognizing the tort did not present itself in this case.
IN THE SUPREME COURT OF TEXAS
RICHARD T. ARCHER, DAVID B. ARCHER,
CAROL ARCHER BUGG, JOHN V. ARCHER,
KAREN ARCHER BALL, AND SHERRI ARCHER, PETITIONERS,
T. MARK ANDERSON AND CHRISTINE ANDERSON, AS
CO-EXECUTORS OF THE ESTATE OF TED ANDERSON, RESPONDENTS
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
Argued October 11, 2017
CHIEF JUSTICE HECHT delivered the opinion of the Court, in which JUSTICE GREEN,JUSTICE
GUZMAN, JUSTICE DEVINE, and JUSTICE BLACKLOCK joined.
JUSTICE JOHNSON filed an opinion, concurring in part and dissenting in part, and concurring
in the judgment, in which JUSTICE LEHRMANN, JUSTICE BOYD, and JUSTICE BROWN joined.
Last Term, in Kinsel v. Lindsey, we noted that Texas has never recognized a cause of action
for intentional interference with inheritance but left open the question whether we should do so.1
Today, to eliminate continuing confusion over the matter and resolve a split among the courts of
appeals, we answer that question. Because existing law affords adequate remedies for the wrongs
526 S.W.3d 411, 423 (Tex. 2017) (“Neither our precedent nor the Legislature has blessed tortious interference
with an inheritance as a cause of action in Texas. Its viability is an open question.”).
the tort would redress, and because the tort would conflict with Texas probate law, we hold that
there is no cause of action in Texas for intentional interference with inheritance. We affirm the
judgment of the court of appeals.2
John R. “Jack” Archer, a successful oil-and-gas businessman, married and divorced 4 times
but had no children. His closest family was a brother, Richard Archer, and Richard’s 6 children
(loosely referred to as “the Archers”).3
Jack executed a will in 1991 that left the bulk of his roughly
$7.5 million estate to the Archers, including a 1,000-acre ranch, mineral interests, homes, life
insurance, bank accounts, a large coin collection, and many other assets. The little Jack did not leave
to them—part of his mineral interests worth some $90,000—Jack left to 12 Christian charities.4
In August 1998, Jack, then 71, suffered a stroke and was hospitalized for several weeks.
When he returned home, the Archers assisted with his care. He regularly misidentified people, was
delusional, and was sometimes disoriented. He never fully recovered.
490 S.W.3d 175 (Tex. App.—Austin 2016).
Five of the children—Carol A. Bugg, David B. Archer, John V. Archer, Karen A. Ball, and Sherri Archer—are
petitioners. The sixth, James Michael Archer, has never been a party to the suit. Their father, Richard, died in 2009, prior
to trial. In our review of the events leading up to this case, we mean by “the Archers” the Richard Archer family. In
discussing the contentions of the parties, we use “the Archers” to refer to Richard Archer’s 5 children who remain parties
to the case.
The charities were Campus Crusade for Christ at Arrowhead Springs, San Benito, California; Young Life,
Corpus Christi, Texas; Child Evangelism Fellowship, Warrenton, Missouri; Laity Lodge, Kerrville, Texas; Christian
Associates International, Orange, Ca1ifornia; Bill Glass Evangelistic Association, Dallas, Texas; Agape Foundation,
Donna, Texas; The Bible League, South Holland, Illinois; Moral Majority, Forrest, Virginia; Intervarsity Christian
Fellowship, Madison, Wisconsin; James Robison Ministries, Fort Worth, Texas; and Prison Fellowship Ministries,
A few weeks after Jack’s stroke, Ted Anderson, an attorney and Jack’s longtime friend,
drafted durable and medical powers of attorney appointing himself as Jack’s attorney-in-fact. Jack
signed the documents, but his medical records showed that the day he signed them he was delusional
and appeared confused. Anderson also tried to have Jack change his estate plan. Anderson proposed
that Jack sell his ranch and transfer the proceeds into a charitable remainder trust with the 12
charities as beneficiaries so that Jack’s entire estate would go to the charities and the Archers would
be disinherited. Jack complained that Anderson was forcing him to sell the ranch against his will,
so Anderson dropped the proposal.
Anderson then hired attorneys Richard Leshin and Buster Adami to draft estate planning
documents for Jack. Jack began distancing himself from the Archers, and for a while they lost all
contact. So in the fall of 1999, the Archers instituted guardianship proceedings for Jack in Blanco
County. Leshin and Adami appeared for Jack and agreed to the appointment of temporary guardians
of his person and estate. Leshin advised Anderson that further estate planning for Jack would have
to await termination of the guardianship. But Anderson retained a new lawyer for Jack, who
repudiated the agreed guardianship. At Anderson’s request, Leshin had Jack sign wills and trust
documents, all disinheriting the Archers and leaving Jack’s entire estate to the charities. Leshin later
testified that he received all his instructions from Anderson, did not talk with Jack before preparing
the wills and trust documents, and knew doctors disagreed about Jack’s mental capacity. Leshin also
testified that he did not determine for himself whether Jack had the mental capacity to validly
execute the documents but instead relied on Anderson’s representations.
The Archers nonsuited the guardianship proceeding in Blanco County and refiled it in Bexar
County. Over Jack’s new attorney’s opposition, the court appointed guardians of Jack’s person and
estate. After an accounting of Jack’s estate was filed, showing that all his assets were in trust, the
Archers learned of the wills and trust disinheriting them. Rather than wait until Jack’s death and
challenge the charities in a will contest, the Archers decided to immediately challenge the trust. The
Archers agreed to pay their attorneys, who had been charging hourly rates, a contingent fee of 40%
of all Jack’s assets recovered. With Jack still alive, the Archers sued for a declaratory judgment that
Jack had lacked the mental capacity to execute the wills and trust documents. The charities, the
beneficiaries of the trust, were defendants. In May 2002, the parties settled. The charities agreed not
to probate Jack’s post-1991 wills, and the Archers agreed to give the charities Jack’s coin collection
and pay their attorney fees. Those fees and the value of the coin collection, which was in addition
to what the charities would receive under Jack’s 1991 will, totaled $588,054.
The Archers sued Anderson on Jack’s behalf for breach of fiduciary duty, intentional
infliction of emotional distress, and legal malpractice. The Archers also sued others on Jack’s behalf
and settled for, in their words, “hundreds of thousands of dollars”. Anderson died in March 2006,
and Jack died a month later. Jack’s 1991 will was probated, and the Archers took their bequests
under it. The following year, the Archers brought this action against Anderson’s estate for
intentional interference with their inheritance, alleging that Anderson influenced Jack to disinherit
them. They concede that Anderson never profited personally from his efforts and that they have
never been able to show his motivation other than some unexplained personal malice. They also
concede that in the end, they received all that Jack left them in his 1991 will, but they claim as
damages the $588,054 they gave the charities in settlement, plus $2,865,928 in attorney fees and
litigation expenses they incurred avoiding Jack’s post-1991 wills and trusts. The jury found in favor
of the Archers but awarded only $2,006,150 in damages. The trial court rendered judgment on the
verdict but added $588,054.
Both sides appealed. The court of appeals concluded that this Court has never recognized
tortious interference with inheritance as a cause of action in Texas and deferred to this Court to
decide whether to do so.5
The appeals court reversed and rendered judgment for Anderson.6
granted the Archers’ petition for review.7
The Archers argue that tortious interference with an inheritance has long been part of Texas
law, but as we noted at the outset, less than a year ago we stated in Kinsel v. Lindsey that neither this
Court nor the Legislature has ever recognized such an action.8
The appellate courts that have
recognized the tort, we explained, largely relied on King v. Acker, a decision of the Court of Appeals
for the First District of Texas in Houston.9 King concluded that this Court impliedly recognized the
cause of action in Pope v. Garrett.
10 But this, we said, was “an inaccurate reading of our precedent”,
490 S.W.3d at 177.
6 Id. at 179.
60 Tex. Sup. Ct. J. 1230 (June 16, 2017).
526 S.W.3d 411, 423 (Tex. 2017).
9 Id. (citing King v. Acker, 725 S.W.2d 750 (Tex. App.—Houston [1st Dist.] 1987, no writ)).
10 King, 725 S.W.2d at 754 (citing Pope v. Garrett, 204 S.W.2d 867 (Tex. Civ. App.—Galveston 1947), rev’d
in part, 211 S.W.2d 559, 562 (Tex. 1948)).
and whether to recognize the tort remained “an open question” that could be answered only by
weighing the factors that we have repeatedly held must be considered in determining whether to
recognize a new cause of action.11 We declined to consider the matter further because the claimants
had another adequate remedy—the imposition of a constructive trust.12
The court of appeals in the present case, which issued its opinion before Kinsel, correctly
concluded that this Court has not recognized a tort of intentional interference with inheritance.13
Further, the court of appeals acknowledged, neither the appellate courts nor the trial courts should
recognize the tort “in the first instance”.14 “Absent legislative or supreme court recognition of the
existence of a cause of action,” the court wrote, “we, as an intermediate appellate court, will not be
the first to do so. We must . . . follow the existing law rather than change it”.15
Since Kinsel, both courts of appeals sitting in Houston have considered whether the tort
should be recognized. In Yost v. Fails, the Court of Appeals for the First District of Texas continued
to follow its precedent, King, in holding that a cause of action for intentional interference with an
inheritance exists.16 Yost neither cited Kinsel nor analyzed the factors for deciding whether to
recognize a new cause of action; it simply followed King.
17 A few weeks later, in Rice v. Rice, the
11 Kinsel, 526 S.W.3d at 423–424 & n.6.
12 Id. at 424.
13 490 S.W.3d 175, 177 (Tex. App.—Austin 2016).
15 Id. (citations omitted).
16 534 S.W.3d 517, 529–530 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
17 See id.
Court of Appeals for the Fourteenth District of Texas, also in Houston, reached the opposite
conclusion.18 The court acknowledged that it had recognized the tort in Brandes v. Rice Trust, Inc.,
relying on King, which had relied on Pope.
19 But following Kinsel’s contrary analysis of Pope, the
court concluded that it was relieved of its stare decisis obligation to follow Brandes.
20 Nor would
it follow Yost, the Rice court said, because that court had neither cited Kinsel nor analyzed the
factors noted in that case to be considered in determining whether to recognize a new cause of
action.21 Ultimately, it concluded that the case before it did “not warrant an extension of existing
law” because “the parties . . . already [had] an adequate remedy.”22
The First and Fourteenth Courts of Appeals’ 10-county districts completely overlap.23 Cases
are randomly assigned between them.24 In the aftermath of Kinsel, judges, lawyers, and parties in
cases in those districts must follow opposite rules: a cause of action for intentional interference with
an inheritance does and may not exist. The concurring opinion minimizes this confusion, speculating
that the cases will be relatively few, and courts will eventually follow Kinsel’s holding that a tort
18 533 S.W.3d 58, 62–63 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
19 Id. at 60 (citing Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 146–147 (Tex. App.—Houston [14th Dist.]
1998, pet. denied) (acknowledging King’s holding “that a cause of action for tortious interference with inheritance rights
exists in Texas” (quoting King v. Acker, 725 S.W.2d 750, 754 (Tex. App.—Houston [1st Dist.] 1987, no writ)))).
20 Id. at 62.
21 Id. at 63.
23 See TEX. GOV’T CODE § 22.201(b), (o); see also id. §§ 22.202–.2021, –.215.
24 Id. § 22.202(h).
does not exist when there is another adequate remedy.25 As we will explain, whether to recognize
a tort to provide an adequate remedy begs the question of what remedy is adequate. Existing
remedies are not inadequate merely because they do not provide the relief a tort would. The
fundamental difficulty with the tort is that it claims for the judiciary the authority to supplant or
augment statutory probate law and settled remedies and principles whenever they are perceived to
be unfair. Whether there will be many cases or few in the Houston courts of appeals districts and
throughout Texas, we think we should avoid the waste of public and private resources arguing over
a question we can answer, especially when the answer is as clear as we think it is.
Courts that have recognized the tort of intentional interference with inheritance have mostly
relied on Section 774B of the Restatement (Second) of Torts, which provides that “[o]ne who by
fraud, 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.”26 Section 774B has been replaced by Section 18 of the
Restatement (Third) of Torts: Liability for Economic Harm,
27 which states:
(1) A defendant is subject to liability for interference with an inheritance or gift
25 Post at __.
26 RESTATEMENT (SECOND) OF TORTS § 774B (AM. LAW INST. 1979).
27 RESTATEMENT (THIRD) OF TORTS: LIAB. FOR ECON. HARM § 18 (AM. LAW INST., Tentative Draft No. 3,
approved May 21, 2018).
(a) the plaintiff had a reasonable expectation of receiving an inheritance
(b) the defendant committed an intentional and independent legal wrong;
(c) the defendant’s purpose was to interfere with the plaintiff’s
(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.
Section 18(1) changes 4 elements of the tort:
• the inheritance or gift is one the plaintiff “had a reasonable expectation of
receiving” rather than one the plaintiff “would otherwise have received”;
• the defendant must commit an “independent legal wrong” rather than act by
“fraud, duress or other tortious means”;
• the defendant’s conduct must “cause the expectancy to fail” rather than
“prevent [the plaintiff] from receiving” the property; and
• the plaintiff must incur simply an “injury” rather than the “loss of the
inheritance or gift.”
None of these differences appears to be material. But Section 18(2) is a substantive change, at least
insofar as it makes explicit that the tort is “not available to a plaintiff who had the right to seek a
remedy for the same claim in a probate court.”
While a cause of action for intentional interference with an inheritance might take other
forms, we focus our analysis on Sections 774B and 18. We have repeatedly explained the policy
analysis we use in deciding whether to recognize a new cause of action:
The considerations include social, economic, and political questions and their
application to the facts at hand. We have weighed the risk, foreseeability, and
likelihood of injury against the social utility of the actor’s conduct, the magnitude of
the burden of guarding against the injury, and the consequences of placing the
burden on the defendant. Also among the considerations are whether one party would
generally have superior knowledge of the risk or a right to control the actor who
caused the harm.28
The issue here is not whether these considerations support remedies for misconduct that prevents
a person from disposing of his estate as he wishes. They all certainly do. Rather, the issue is whether
these considerations support additional or different remedies than those already afforded by statutory
probate law and a suit in equity for unjust enrichment. We begin by examining the conflicts between
existing law and the Section 774B and Section 18 tort and then turn to whether an additional tort
remedy is needed.
Harvard Law Professors John C.P. Goldberg and Robert H. Sitkoff have made a strong case
against recognizing the tort in a lengthy article recently published in the Stanford Law Review.
They conclude that the tort
is conceptually and practically unsound. . . . [I]t is deeply problematic from the
perspectives of both inheritance law and tort law. It undermines the core principle
of freedom of disposition that undergirds American inheritance law. It invites
circumvention of principled policies encoded in the specialized rules of procedure
applicable in inheritance disputes. In many cases, it has displaced venerable and
better-fitting causes of action for equitable relief. It has a derivative structure that
violates the settled principle that torts identify and vindicate rights personal to the
28 Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017) (quoting Humble Sand & Gravel, Inc. v.
Gomez, 146 S.W.3d 170, 182 (Tex. 2004)); see also Kinsel v. Lindsey, 526 S.W.3d 411, 423–424 n.6 (Tex. 2017);
Ritchie v. Rupe, 443 S.W.3d 856, 878 (Tex. 2014); Roberts v. Williamson, 111 S.W.3d 113, 118 (Tex. 2003).
29 John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful Interference with
Inheritance, 65 STAN. L. REV. 335 (2013).
plaintiff. . . . [T]he emergence of the interference-with-inheritance tort is
symptomatic of two related and unhealthy tendencies in modern legal thought: the
forgetting of restitution and equitable remedies, and the treatment of tort as an
unstructured delegation of power to courts to impose liability whenever doing so
promises to deter antisocial conduct or compensate victims of such conduct.30
There are opposing views, Professors Goldberg and Sitkoff acknowledge,31 but their rebuttals
of contrary arguments are convincing.
Fundamentally, probate law protects a donor’s right to freely dispose of his property as he
chooses.32 An interference tort, it is argued, reinforces that protection.33 But a prospective
beneficiary has no right to a future inheritance; he has only an expectation that is dependent on the
donor’s exercise of his own right. The tort of intentional interference with inheritance gives a
beneficiary his own right, one he does not otherwise have. That right is sometimes said to be
derivative of the donor’s right, but the beneficiary’s exercise of his own right may or may not protect
the donor’s right of free disposition.34 A beneficiary’s interests and motives and those of his donor
30 Id. at 335–336.
31 Specifically, their article notes that Professor Diane J. Klein at the University of La Verne College of Law
has written most extensively in favor of recognizing the tort. See id. at 363 & n.188, 365 n.198; see also Diane J. Klein,
“Go West, Disappointed Heir”: Tortious Interference with Expectation of Inheritance—A Survey with Analysis of State
Approaches in the Pacific States, 13 LEWIS & CLARK L. REV. 209 (2009); Diane J. Klein, River Deep, Mountain High,
Heir Disappointed: Tortious Interference with Expectation of Inheritance—A Survey with Analysis of State Approaches
in the Mountain States, 45 IDAHO L.REV. 1 (2008); Diane J. Klein, A Disappointed Yankee in Connecticut (or Nearby)
Probate Court: Tortious Interference with Expectation of Inheritance—A Survey with Analysis of State Approaches in
the First, Second, and Third Circuits, 66 U. PITT. L. REV. 235 (2004) [hereinafter A Disappointed Yankee in
Connecticut]; Diane J. Klein, The Disappointed Heir’s Revenge, Southern Style: Tortious Interference with Expectation
of Inheritance—A Survey with Analysis of State Approaches in the Fifth and Eleventh Circuits, 55 BAYLOR L. REV. 79
32 Goldberg & Sitkoff, supra note 29, at 338.
33 A Disappointed Yankee in Connecticut, supra note 31, at 238–240.
34 Goldberg & Sitkoff, supra note 29, at 379.
may be consistent, but they may also conflict. Family relationships and the very personal feelings
they involve change. An expectancy is powerful motivation to ignore reality and misperceive a
donor’s true intent.
Intentional interference with inheritance is thus different from intentional interference with
a business opportunity, another kind of expectancy. Like the beneficiary of an inheritance, a
competitor has no right to a future opportunity.35 But he does have the right not to be disadvantaged
by unfair competition that is tortious or wrongful.36 The plaintiff and defendant share that right, and
the question is whether the defendant crossed the line. When there is unlawful interference with a
commercial or business opportunity, tort law recognizes a remedy.37 A remedy is warranted because
the defendant’s unlawful behavior impeded the plaintiff’s liberty interest, that is, “an interest in
pursuing productive activity free from wrongful interference.”38 The expectation of a prospective
beneficiary is different. He has no right to fairness; he gets only what the donor chooses to give,
fairly or unfairly. Probate law protects the donor’s interest in making that choice freely.
Tort law “is ill-suited to posthumous reconstruction of the true intent of a decedent.”39 Even
before his death, a donor may not wish to disclose his true intentions, offending family and friends.
35 See id. at 387; Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 727 (Tex. 2001) (observing that cases
involving tortious interference with prospective business relations involve “two parties . . . competing for interests to
which neither is entitled”).
36 See Goldberg & Sitkoff, supra note 29, at 387; Wal-Mart Stores, Inc., 52 S.W.3d at 726 (“We therefore hold
that to recover for tortious interference with a prospective business relation a plaintiff must prove that the defendant’s
conduct was independently tortious or wrongful.”).
37 Wal-Mart Stores, Inc., 52 S.W.3d at 726.
38 Goldberg & Sitkoff, supra note 29, at 387–388.
39 Id. at 338.
Probate law employs specialized doctrines and procedures to arrive at the testator’s true intent.
Courts use principles of “undue influence” and “duress” to distinguish the unclear demarcation
between legitimate persuasion and overbearing influence.40 These carefully developed doctrines take
into account the context of “nuanced family dynamics and customs that are often inaccessible to
Moreover, the evidentiary rules and procedures in probate law strike a balance between
honoring a testator’s actions while addressing situations where those actions were wrongfully taken.
“Safeguarding freedom of disposition requires the court to invalidate a disposition that was not
volitional because it was procured by undue influence. But openness to circumstantial evidence
facilitates the bringing of strike suits by disgruntled family members whom the decedent truly meant
to exclude.”42 This justifies the rule that a will contestant has the burden of proving that a will was
wrongfully procured.43 These and other carefully constructed provisions were enacted by the
Legislature and should be respected. It is not prudent for the Court to recognize a new tort simply
because probate procedures sometimes present hardships or even bar a plaintiff’s recovery.
Comment a to Section 18 states that the tort “is not meant to interfere with probate law or
to provide a way for a plaintiff to avoid its limits and restrictions” but is “to provide relief when . . .
42 Id. at 346 (footnotes omitted).
43 See id. (“The contestant normally has the burden of proving that a will was procured by undue influence.”).
no remedy is available in probate.”44 It is not enough, according to comment c, that probate law
“offers less generous relief than would be attainable in tort.”45 The tort is available only “if a probate
court, for whatever reason, lacks the power to provide redress.”46 But limits on a probate court’s
power are among the “limits and restrictions” of probate law with which the tort “is not meant to
interfere”.47 Given probate law’s extensive and thorough provisions to protect an owner’s free devise
of his property, the lack of further remedies must be viewed not as legislative oversight but
A tort of intentional interference with inheritance is needed, it is argued, as a gap-filler when
probate and other law do not provide an adequate remedy.48 Texas law thoroughly governs
inheritance through probate and restitution and, as we noted in Kinsel, provides remedies for
unfairness, such as a constructive trust.49 If these remedies are inadequate, it is because of legislative
choice or inaction, and filling them is work better suited for further legislation than judicial
44 RESTATEMENT (THIRD) OF TORTS: LIAB. FOR ECON. HARM § 18 cmt. a (AM. LAW INST., Tentative Draft No.
3, approved May 21, 2018).
45 Id. cmt. c.
47 Id. cmt. a.
48 Goldberg & Sitkoff, supra note 29, at 365.
49 526 S.W.3d 411, 425 (Tex. 2017) (“A constructive trust is an equitable, court-created remedy designed to
prevent unjust enrichment.” (quoting KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 87 (Tex. 2015))).
A court already has broad authority to rectify inequity using a constructive trust in an action
for restitution to prevent unjust enrichment.50 As early as the first Restatement of Restitution,
published in 1937, the underlying principle has been stated as thus: “Where a disposition of property
by will or an intestacy is procured by fraud, duress or undue influence, the person acquiring the
property holds it upon a constructive trust, unless adequate relief can otherwise be given in a probate
court.”51 Most recently, the Restatement (Third) of Restitution and Unjust Enrichment explains
liability in restitution owing to wrongful interference with a donor’s freedom of disposition as
follows: “If assets that would otherwise have passed by donative transfer to the claimant are diverted
to another recipient by fraud, duress, undue influence, or other intentional misconduct, the recipient
is liable to the claimant for unjust enrichment.”52 The doctrine, therefore, is malleable to fit the
particular needs of each situation.
“[R]estitution by way of constructive trust” operates as “a gap-filling complement, rather
than a rival, to the will contest in probate.”53 Most importantly, the body of restitution law “is
sensitive to ‘the rules of procedure, standards of proof, and limitations periods applicable in probate
cases,’ so that [it] cannot be used ‘to circumvent’ probate . . . procedures.”54 In Kinsel, we
50 See Goldberg & Sitkoff, supra note 29, at 350 (“A constructive trust is a flexible remedy that courts of equity
have long used to prevent unjust enrichment.”); Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex. 1974)
(“Constructive trusts, being remedial in character, have the very broad function of redressing wrong or unjust enrichment
in keeping with basic principles of equity and justice.”).
51 RESTATEMENT (FIRST) OF RESTITUTION § 184 (AM. LAW INST. 1937).
52 RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 46(1) (AM. LAW INST. 2011).
53 Goldberg & Sitkoff, supra note 29, at 351.
54 Id. (quoting RESTATEMENT (THIRD) OF RESTITUTION & UNJUST ENRICHMENT § 46 cmt. c).
concluded that the constructive trust remedy was adequate to redress the alleged injuries.55 Suits on
established torts, such as fraud, conversion, theft, and breach of fiduciary duty, as well as suit under
the Declaratory Judgment Act, may also be available. The Court has never been persuaded that the
remedies provided by probate law and established torts are inadequate.
In Kinsel, we left open the possibility that situations could arise to justify recognition of the
tort of intentional interference with inheritance, but we did not hint at what they might be.56 Nor are
we able to do so. Professor Diane Klein, a prominent proponent of the tort, posits 4 specific factual
scenarios in which the probate system falls short, justifying the need for a tort action. None of the
situations warrants recognition of the tort.
One scenario is when an intestate heir tortiously induces the testator to make a will that is
more favorable to the tortfeasor than to another heir.57 The estate’s payment of the expenses of a
good-faith will contest would diminish the value of the challenger’s share, and if the will is struck
down, the tortfeasor would still collect through intestacy or a prior will, leaving the offender
unpunished.58 But the rule that costs of a good-faith will contest are paid from the estate is
established by the law of probate.59 Good policy arguments can certainly be made that the rule
punishes the innocent and provides no deterrence to wrongdoing. But to use this example to argue
55 526 S.W.3d 411, 424 (Tex. 2017).
56 See id. at 423–425.
57 See A Disappointed Yankee in Connecticut, supra note 31, at 247.
59 TEX. EST. CODE § 352.052(a)–(b).
for a tort remedy is to say, not that probate law is inadequate, but that it is wrong, and that courts
should circumvent legislative policy.
Another proffered scenario justifying recognition of the tort is when a would-be beneficiary
lacks standing to contest a will.60 But standing rules are broad. A person interested in the outcome
of an estate plan has standing,61 including anyone having “a property right in or claim against [the]
estate being administered”.62 An interested person also may file an application admitting a will to
probate, even when the will has been destroyed.63 To the extent that these rules might not include
someone with some expectation of a gift is, again, a legislative choice.
A third situation posited by Professor Klein is when someone obtains a gift in place of the
testator’s originally named beneficiary through undue influence.64 Even if the will provision is
invalidated in probate, it is argued, the gift may not be restored, and the tortfeasor will not be
penalized.65 The tortfeasor may even still benefit if he is a residuary beneficiary.66 Further, the
wrongdoing may be concealed until probate is closed. But in such circumstances, restitution may
afford relief, and if the relief is lacking, the reason is legislative choice. Against the policy argument
60 A Disappointed Yankee in Connecticut, supra note 31, at 247.
61 TEX. EST. CODE § 55.001.
62 Id. § 22.018(1).
63 Id. § 256.051(a).
64 A Disappointed Yankee in Connecticut, supra note 31, at 248.
for relief is the policy argument that probate proceedings should not be retried in a tort action,
certainly a reasonable view.
Professor Klein’s fourth scenario is when a tortfeasor uses undue influence or fraud to induce
the testator to make inter vivos transfers depleting the estate.67 The transfers might not be discovered
until after the testator’s death, and while the property might be recovered through restitution, it
might also be beyond reach. But the limits of restitution simply recognize that not every wrong can
The factual scenarios posited by Professor Klein are by no means an exhaustive list of cases
in which proponents of recognizing the tort argue that it is necessary to fill a gap left open by
probate procedures. Still, we are unable to imagine a situation in which the lack of a full remedy is
not a legislative choice or a matter for targeted legislative amendments to probate law and
procedures. A general interference tort is not a solution.
The Archers argue that probate and other remedies are inadequate because they do not allow
recovery of their attorney fees incurred in setting aside Jack’s post-1991 wills and trust and their
expenses in settling with the charities. But settling their declaratory judgment action against the
charities was the Archers’ choice, as were their decisions not to seek attorney fees against the
charities and to pay the charities’ fees. The Archers argue that their remedies were inadequate
because they did not punish Anderson, the wrongdoer. And they argue more broadly that a
beneficiary wrongfully deprived of an inheritance should not be limited to reimbursement of
expenses by the estate in a will contest.
At bottom, the Archers’ argument is for a different probate process than the Legislature has
created, specifically attorney fee shifting so that an award of fees does not diminish the estate. We
agree generally that the law should discourage wrongdoing and punish wrongdoers. But the Archers
asserted 3 other causes of action against Anderson—breach of fiduciary duty, intentional infliction
of emotional distress, and legal malpractice. The law provided adequate remedies for the Archers’
injuries. Even if a tort of intentional interference with inheritance were recognized, the Archers
would not recover based on Kinsel.
But the case prompts us to answer the question left open there. We have now had 2
opportunities in successive Terms to consider the creation of a new tort. Neither case calls for one,
and the circumstances involved in each, along with thorough analyses of the issues in judicial
opinions and legal scholarship, provide compelling reasons not to recognize the tort.
The concurring opinion’s “overriding concern” is that we have too little information to know
whether to recognize the tort of intentional interference with inheritance.69 In the concurring
opinion’s view, there is little risk in deferring the issue again, as we did in Kinsel. There do not
appear to be many such cases, and the risk of confusion, the concurring opinion believes, is low.70
68 526 S.W.3d 411, 424 (Tex. 2017) (holding that the plaintiffs were not entitled to recover for tortious
interference with an inheritance because a constructive trust provided an adequate remedy).
69 Post at __.
70 Id. at __.
The concurring opinion argues that courts will get the message after Kinsel that the tort would only
be available in extraordinary circumstances.71 We do not share so rosy a view of things. We have
called the tort of intentional infliction of emotional distress a “gap-filler”,72 but it is nevertheless
invoked in a great many cases. We believe the bench, bar, and public deserve a straight answer when
one is as clear as here.
We share fully, of course, the concurring opinion’s concern that the elderly and disabled not
be taken advantage of. But all the good efforts to assure their protection to which the concurring
opinion points are legislative.73 The concurring opinion argues that a new tort is needed to assure
free disposition of estates.74 But as we have noted, the tort creates rights in expectancies that are
often in conflict with those of property owners. With our state’s extensive, settled probate
procedures and its attention to and improvements in guardianship processes,75 the Legislature has
shown itself to be active and creative in protecting the vulnerable. An expansion of tort law is not
71 Id. at __.
72 Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998).
73 See post at __.
74 Id. at __.
75 See, e.g., TEX. EST. CODE § 1101.151(a) (providing for court appointment of a guardian with full authority
over an incapacitated person upon a finding “that the proposed ward is totally without capacity to care for himself or
herself, manage his or her property, operate a motor vehicle, make personal decisions regarding residence, and vote in
a public election”); TEX. GOV’T CODE § 155.102 (requiring certification for certain guardians).
Importantly, the concurring opinion agrees that “the Archers had adequate remedies”76 even
though those remedies do not allow them to recover their attorney fees and settlement costs in
litigating with the charities. The concurring opinion does not explain why the limits of the law of
probate and unjust enrichment might be expanded for some, just not the Archers. Our decision that
any expansion should be left to the Legislature is a principled reason for concluding that the
Archers’ remedies were adequate. The concurring opinion does not agree with our analysis but
offers no reason of its own for reaching the same conclusion.
Finally, the concurring opinion argues that other states that have recognized the tort “have
adopted what are seemingly pragmatic and workable standards.”77 If that is true, and it is far from
clear what the effects of the tort have been in other jurisdictions, we think a new tort is not needed
in Texas. The fundamental question is why tort law should provide a remedy in disregard of the
limits of statutory probate law. We think here it should not.
The tort of intentional interference with inheritance is not recognized in Texas. The decisions
of the courts of appeals to the contrary are overruled.78
76 Post at ___.
77 Id. at __.
78 These include Yost v. Fails, 534 S.W.3d 517, 530 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Stern v.
Marshall, 471 S.W.3d 498, 516 (Tex. App.—Houston [1st Dist.] 2015, no pet.); In re Estate of Valdez, 406 S.W.3d 228,
233 (Tex. App.—San Antonio 2013, pet. denied); In re Estate of Russell, 311 S.W.3d 528, 535 (Tex. App.—El Paso
2009, no pet.); Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 146–147 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied); King v. Acker, 725 S.W.2d 750, 754 (Tex. App.—Houston [1st Dist.] 1987, no writ).
* * * * *
The judgment of the court of appeals is
Nathan L. Hecht
Opinion delivered: June 22, 2018
PRIOR SCOTX CASE
(DECLINING TO DECIDE WHETHER TORT OF INTENTIONAL INTERFERENCE WITH INHERITANCE IS VIABLE IN TEXAS)
Virginia O. KINSEL, as Attorney-in-Fact for J. Frank Kinsel, J. Frank Kinsel, Jr., Carole K. Edwards, and Catherine K. Collins, Petitioners and Cross-Respondents.
Jane O. LINDSEY, Individually and as Co-Trustee of the Lesey B. Kinsel Trust, and Robert N. Oliver, Respondents and Cross-Petitioners, and Keith Branyon and Jackson Walker, LLP, Respondents.
Supreme Court of Texas.
On Petition for Review from the Court of Appeals for the Seventh District of Texas.
Laurie E. Ratliff, Ikard Golden Jones, P.C., Austin, for Amici Curiae Archer, David B., Archer, John V., Archer, Richard T., Archer, Sherri, Ball, Karen Archer, and Bugg, Carol Archer.
Philip M. Ross, San Antonio, for Amici Curiae Kulik, Hilary, Rivera, Jo Ann, Schaefer, Jessica, Schaefer, John, Schaefer, Junior, Ronald, Schaefer, Matthew, and Thompson, Gretchen.
Raul Javier Guerra, San Antonio, for Amicus Curiae Rivera, Jo Ann.
Craig T. Enoch, Amy L. Saberian, Melissa A. Lorber, Enoch Kever PLLC, Austin, J. Lyndell Kirkley, Sean R. Looney, The Kirkley Law Firm, L.L.P., Fort Worth, Laura L. Worsham, Lindy D. Jones, Ty J. Jones, Jones, Allen & Fuquay, L.L.P., Dallas, for Petitioners.
John H. Cayce Jr., Frank Pierce Greenhaw IV, Joseph "Joe" R. Greenhill III, Marshall M. Searcy Jr., Matthew David Stayton, Kelly Hart & Hallman LLP, Fort Worth, Rachel A. Ekery, Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend LLP, Austin, William L. Kirkman, Shelly K.A. Messerli, Kirkman Law Firm, P.L.L.C., Fort Worth, Susanna Johnson, Fort Worth, for Respondents.
We are asked in this case to recognize tortious interference with an inheritance as a viable cause of action in Texas. Petitioners and cross-respondents, the Kinsels, argue we already did so more than sixty years ago. We disagree. Although some of our courts of appeals have recognized the tort, we have not. And because the Kinsels have an adequate remedy in this case — a constructive trust imposed on the disputed inheritance — we are not persuaded to consider it here. For that reason and others explained below, we affirm the court of appeals' judgment and remand the case to the trial court for further proceedings consistent with this opinion.
This case arises out of the sale of a family-owned ranch. Lesey Kinsel owned 60% of the ranch, and her step-children and step-grandchildren owned various shares of the other 40%. Lesey deeded her share of the ranch to her intervivos trust in 1996. Under the trust's terms, her 60% interest in the surface and minerals would pass to certain of her step-children and step-grandchildren, some of whom already owned interests in the ranch.
Lesey's inheritance allocation changed over time. Under a third amendment to her trust executed in 2004, her 60% share would be split between J. Frank Kinsel, Jeff Kinsel, Carole Edwards, and Cathy Collins. Her estate-planning documents were silent as to what would happen if the ranch were sold during her lifetime. So by default, any ranch-sale proceeds would pass to the trust's residual beneficiary — Lesey's only niece, Jane Lindsey.
Jeff, Carole, Cathy, and Virginia Kinsel, acting on behalf of the late J. Frank Kinsel (the Kinsels), would eventually sue Jane, Lesey's nephew Bob Oliver, attorney Keith Branyon, and his firm, Jackson Walker LLP, over their role in the sale of the ranch a month before Lesey died. The Kinsels argue they were misled by Jane, Bob, and Keith to believe Lesey was running out of money and needed to liquidate the ranch to cover the growing costs of her care. In reality, Lesey had around $1.4 million in marketable securities at her disposal. But if the ranch were sold and the Kinsels' inheritance adeemed, Jane would receive Lesey's share of the ranch-sale proceeds as the trust's residual beneficiary. The Kinsels who owned shares in the ranch argue they would not have agreed to sell if they did not believe it necessary to support Lesey.
The Kinsels argue the scheme to co-opt their inheritance began in 2005 when, at age 92 and losing her eyesight, Lesey moved from her longtime home of Beaumont to an assisted-living facility in Fort Worth. Jane and Bob, Lesey's only living blood relatives, lived in Fort Worth, and the record shows Jane apparently was Lesey's primary caretaker outside of the 24-hour home care she received beginning in 2006. Jane and Bob also began helping Lesey with her finances; Jane wrote checks from Lesey's account to cover her expenses, and Bob began opening her mail and reading financial statements to her.
In August 2006, Jane wrote to Floyd McSpadden, Lesey's longtime estate-planning attorney in Beaumont. The letter mostly covered housekeeping issues regarding Lesey's estate. But she also inquired "whether or not the [ranch] minerals are separate from the land in the case of [Lesey] willing her share of the ranch to some of the Kinsels." In a letter addressed to Lesey, McSpadden responded that the mineral and surface estates had not been severed. On January 24, 2007, Jane indicated in a letter to McSpadden that Lesey wished to separate the mineral estate in her share of the ranch and gift it equally to Jane and Bob. Jane advised McSpadden that Lesey was "thoroughly informed" and "requested [the changes] be implemented by you." If McSpadden had any questions, Jane wrote that he should "contact Lesey by phone."
McSpadden drafted an updated will and a fourth amendment to Lesey's trust. Because Lesey now lived in Fort Worth, he recommended she retain a local attorney to handle their execution. Bob contacted his son-in-law, an attorney with Jackson Walker, who in turn referred Lesey to Keith, an estate-planning attorney in Jackson Walker's Fort Worth office. McSpadden sent the documents to Keith and, because Lesey could no longer read, instructed him to read them aloud to her.
416*416 Jane and Bob drove Lesey to Keith's office on February 23, 2007, to execute the fourth amendment. Keith testified it was his first time to meet any of them. Jane and Bob waited in the lobby while Keith met with Lesey for an hour and a half. Keith testified he spent that time evaluating Lesey's mental capacity through conversation, reading the pertinent documents aloud to her, and ensuring she understood and desired the proposed changes. In a letter to McSpadden following execution of the fourth amendment, Keith wrote that Lesey "knew all of the people that she had chosen to benefit and she asserted over and over that she was comfortable with the terms."
Sometime after Lesey moved to Fort Worth, various owners of the ranch broached the idea of selling. There does not appear to be any evidence that the idea originated with Jane, Bob, or Keith, none of whom owned an interest in the ranch. Paul Prince, a part-owner who was in charge of the ranch's upkeep, testified that he, Cathy, and Joe Bob Kinsel, Jr., another part-owner, initially decided to sell. Paul and Joe Bob are not parties to this case, but Cathy testified she only agreed to sell because Jane told her Lesey was running out of the money.
Paul testified he then asked Jane to run the proposal to sell by Lesey. He had spoken with Jane about two months earlier, he testified, and heard her concerns over Lesey's growing expenses. Paul told Jane it was a "perfect time to sell the ranch." He testified that Jane called him back about a week later while she was with Lesey and said Lesey had agreed to sell the ranch. Paul testified he then spoke directly to Lesey on the phone and that she told him that although she was conflicted by her sentimental attachment to the ranch, she acknowledged she could no longer visit and it was time to sell.
With Lesey's agreement, a majority of the ranch's ownership was prepared to sell. Paul ordered an appraisal of the ranch and secured a broker who in turn produced a buyer. Most of the co-owners readily agreed to the offer. With a sales contract Paul signed on the owners' behalf in place, Keith was again contacted in February 2008 to help execute the sale. Keith testified he could not recall who initially brought him into the transaction, but that someone delivered to him a copy of the sales contract and appraisal. His billing records reflect he met with Bob and Jane in February 2008 to review documents regarding the sale. Keith sent letters to all the ranch owners to confirm their respective interests, notify them of the offer, and gauge their desire to sell. In these letters, dated February 15, 2008, Keith stated:
I represent Lesey Kinsel and the trustee of her living trust with regard to [the ranch]. As you may know, Ms. Kinsel's living expenses, including the care she receives at her home, have increased substantially of late. As we have investigated the various possibilities available to her in raising some additional cash, she has made the decision that she would like to sell the referenced property in Atascosa County.
Keith testified he then met with Lesey at her apartment on February 19, 2008, to discuss the ranch sale. Lesey told him she had grown weary of shouldering the ranch's expenses without help from the other owners, that she was physically unable to visit, and that the offer was too good to pass up. Keith testified he read the terms of the sales contract to her and that she understood them. He further testified he discussed with Lesey the tax consequences of selling during her lifetime as well as the other substantial assets at her disposal. But Lesey wanted to sell.
417*417 Meanwhile, and despite earlier indications that the Kinsels were coalescing behind the sale, J. Frank Kinsel's family, which included Virginia, Jeff, and Carole, showed signs of holding out. In an e-mail to Virginia and Carole dated February 19, 2008, Jeff wrote that he had urged Keith to "consider putting any monies from [Lesey's] 60% in a separate trust" and that he doubted Virginia would be willing to sell J. Frank's interest "unless she feels that `we' are protected." Carole responded that she had met with a lawyer who advised her that "we need to find out where the 60% will go and who will control the 60%." Cathy similarly testified that "we were all concerned that if the ranch were sold and everything was converted to cash, that that cash had to be separated between Jane Lindsey's inheritance and our inheritance instead of mingled."
In early March 2008, Jeff visited Lesey at her apartment. He testified she was "scared to death she was running out of money" and "did not know what was going on." Jeff told Lesey that Keith would not speak with him about her affairs and drafted a letter for Lesey to sign authorizing Keith to discuss her estate planning with Jeff. The letter purportedly is signed by Lesey with just her initials, which, according to Jeff, "was all Lesey was able to sign at that time in her life."
Keith testified that he had a phone conversation with Jeff in which Jeff expressed concern about what would happen with Lesey's share of the ranch-sale proceeds. According to Keith, Jeff "threatened to cause [J. Frank Kinsel] not to join in the sale unless I somehow caused Lesey to change her estate planning documents to protect the proceeds for he and his family." Keith testified he would consult with Lesey. But he reminded Jeff that the buyer was willing to purchase Lesey's 60% interest even if others were unwilling to sell.
Keith testified he visited with Lesey the next day about her estate planning as it applied to the ranch-sale proceeds. Lesey said that Keith was not authorized to discuss her plans with Jeff or members of his family. She further told Keith she was "upset" with the Kinsels and that Jeff and his wife were visiting her "all the time, trying to make sure that she was going to leave them their portion of the proceeds." Keith testified Lesey gave him permission to discuss her estate planning only with Jane and Bob. Lesey also told him that she did not want to make any changes to her estate planning at that time.
Virginia eventually agreed to the sale on J. Frank's behalf, and the deal closed in July 2008. Lesey's trust received $3,056,120.65 for Lesey's share, Cathy received $509,067.96, and Virginia received $509,279.44 for J. Frank's interest. Shortly after the ranch sold, Lesey and Keith met to discuss another amendment to Lesey's trust. Keith testified he presented her with a proposed fifth amendment that would have devised the ranch-sale proceeds to the Kinsels in proportion to the trust's ranch-interest bequests under the fourth amendment. But Lesey rejected that draft, opting instead to leave Jeff and Carole $25,000 in cash each. She made no specific bequest to Cathy because, as Keith recollected, "she had just received $509,000 and she felt like Cathy ... had received her interest." According to Keith, Lesey "was still bothered by all of the contacts, the visits, the phone calls that she received from the Kinsels during the 418*418process of the sale of the ranch." Keith prepared the fifth amendment as Lesey had instructed, which included deleting from the trust all references to the ranch. Lesey executed it on August 12, 2008. Keith testified he honored Lesey's request to not share news of the amendment with anyone else. She died ten days later.
The Kinsels sued Jane, Bob, Keith, and Jackson Walker, arguing they unduly influenced Lesey and that she lacked capacity to execute the fourth and fifth amendments to her trust or to sell her share of the ranch. They sought damages for tortious interference with their inheritances; statutory and common-law fraud; and conspiracy. The Kinsels also sought imposition of a constructive trust on Lesey's share of the ranch-sale proceeds that flowed to Jane as residual beneficiary.
The jury found for the Kinsels on every claim, awarding a total of $3.056 million — the amount of Lesey's proceeds from the sale — for tortious interference with their inheritances; statutory and common-law fraud; and conspiracy. Each Kinsel was awarded the percentage of the $3.056 million they stood to inherit under Lesey's trust as it existed before the fourth amendment. The trial court entered judgment on the jury's verdict, declaring (1) the Kinsels were entitled to the damages awarded by the jury; (2) Lesey was unduly influenced and lacked mental capacity to execute the sales contract and deed transfer for the ranch; and (3) the fourth and fifth amendments to Lesey's trust are void, as are any documents conveying a mineral interest in the ranch to Jane or Bob. The trial court also imposed a constructive trust on Jane's interest in Lesey's trust and "any monies that Jane O. Lindsey would be legally entitled to from the Trust" for the purpose of satisfying "in whole or in part, Plaintiffs' judgment in the lawsuit." Finally, the trial court awarded the Kinsels attorneys fees of $800,000 but no appellate fees.
On appeal the case was transferred from the Fort Worth to the Amarillo court of appeals. That court reversed the trial court's award for damages for tortious interference with an inheritance on the basis that "neither our Texas Legislature nor Texas Supreme Court has recognized" that cause of action. 518 S.W.3d 1, 9-10, 2015 WL 2085220 at *3 (Tex. App.-Amarillo 2015) (mem. op.). It also reversed the award for fraud damages, holding the trial court presented the jury with an incorrect measure of damages and no evidence supports the correct measure. Id. at 14, 2015 WL 2085220. Because the court of appeals reversed both of those tort findings, it likewise rejected a derivative civil-conspiracy finding. Id. at 16, 2015 WL 2085220. But the court of appeals affirmed the trial court's judgment that Lesey was mentally incapacitated when she agreed to sell the ranch and executed the fourth and fifth amendments to her trust. Id. at 13, 2015 WL 2085220. The court of appeals also upheld the trial court's imposition of a constructive trust but narrowed its scope to capture only "any interest she may have obtained in the ranch and its proceeds" instead of "all interests Lindsey had in the intervivos trust." Id. at 24, 2015 WL 2085220 at *15. As to attorneys fees in the trial court, the court of appeals held the Kinsels failed to segregate legal services for which fees are recoverable from claims for which they are not, and remanded to the trial court for a new trial on attorneys 419*419 fees only. Id. at 25. As to the jury's refusal to award attorneys fees for appeal, the court of appeals held "the jury could well have decided that it was not afforded sufficient basis upon which to calculate reasonable attorney's fees related to subsequent appeals." Id. at 29, 2015 WL 2085220 at *19.
All parties except Keith and Jackson Walker appealed the court of appeals' judgment to this Court. The Kinsels urge us to recognize tortious interference with an inheritance as a cause of action and uphold their recovery or, alternatively, restore their fraud recovery. They further ask we affirm the trial court's award for trial attorneys fees and either render judgment that they are entitled to additional appellate fees or remand the issue to the trial court for retrial.
Jane and Bob argue we have not and should not recognize tortious interference with an inheritance as a cause of action, and that the Kinsels' fraud damages are not cognizable. They alternatively argue there is no evidence of either tort. They further argue no evidence shows Lesey was mentally incapacitated or unduly influenced, and that the trial court abused its discretion in imposing a constructive trust. Finally, they argue we should render judgment that the Kinsels are not entitled to attorneys fees.
1. Lesey's mental capacity
We begin with the issue of Lesey's mental capacity because it has bearing on other issues in this case. The jury found that Jane, Bob, and Keith unduly influenced Lesey both to sell the ranch and execute the fourth and fifth amendments to her trust. It also found that Lesey lacked mental capacity to make any of those transactions. The court of appeals, without specifically addressing the jury's undue-influence finding, concluded there is "some evidence upon which reasonable minds could conclude that Lesey lacked sufficient mind and memory to understand the nature and effect of her acts at the time she executed the trust amendments and sales instruments at issue." 518 S.W.3d at 17, 2015 WL 2085220 at *9. We agree.
Documents executed by one who lacks sufficient legal or mental capacity may be avoided. In re Morgan Stanley & Co., 293 S.W.3d 182, 193 (Tex. 2009). Lesey had the mental capacity to execute the documents effectuating the ranch sale and the fourth and fifth amendments to her trust if she "appreciated the effect of what she was doing and understood the nature and consequences of her acts and the business she was transacting." Mandell & Wright v. Thomas, 441 S.W.2d 841, 845 (Tex. 1969). The proper inquiry is whether Lesey had capacity on the days she executed the documents at issue. Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). But courts may also look to state of mind at other times if it tends to show one's state of mind on the day a document was executed. See id.
Lesey began receiving 24-hour care in 2006 at 93 years old. The court of appeals summarized her deterioration in the final years of her life:
[Lesey] 1) grew more infirm, 2) experienced macular degeneration, 3) became legally blind, 4) had to have others give her the pills she had to take, 5) had to have others manage her doctors' care and her finances, 6) became extremely frail, 7) required assistance in walking, bathing, dressing, and eating, 8) became incontinent of urine or urinated on herself, 9) experienced continual confusion and forgetfulness, 10) experienced agitation, and 11) experienced depression. So 420*420 too did she begin to experience congestive heart failure in 2007 and grow less responsive to the medications administered to ameliorate that condition. The condition resulted in her having renal insufficiency or a precursor to renal failure. Consequently, fluid was pooling in her body, and her heart was unable to "clear it out." That, according to a physician who testified, could affect a person's mental state "[w]hen it gets that significant."
518 S.W.3d at 16-17, 2015 WL 2085220 at *9 (alterations in original). Jane and Bob protest that this inventory of primarily physical infirmities has no bearing on Lesey's mental capacity. We agree that not all of Lesey's afflictions suggest she was mentally compromised. Evidence of physical infirmities, without more, does not tend to prove mental incapacity. See Horton v. Horton, 965 S.W.2d 78, 86 (Tex. App.-Fort Worth 1998, no pet.). But evidence of physical problems that are consistent with or can contribute to mental incapacity is probative. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983)("[T]he evidence did not simply demonstrate physical decline. Rather, the contestants produced evidence of physical problems, i.e. occlusion of the carotid arteries, consistent with mental incapacity.").
Testimony about how some of Lesey's physical challenges contributed to her mental incapacity came from Lisa Clayton, a board-certified forensic psychiatrist. Dr. Clayton testified that by February 2007 Lesey had "mild to moderate dementia and cognitive impairment." She added that in 2007 and 2008 Lesey was in the latter stages of congestive heart failure, which led to renal insufficiency. Dr. Clayton testified: "Basically, the fluid was just kind of sitting in her body pooling and her heart wasn't able to beat to clear it out." According to Clayton, a person's mental state can be affected "[w]hen it gets that significant."
Dr. Clayton also disclosed that Lesey kept notes on her doctors, their contact information, and her prescription doses in "very legible" handwriting up until fall 2006, after which Lesey began having "confusion" about her medication. Dr. Clayton testified that beginning in early 2007, nurse and caregiver notes on Lesey indicated "she was confused, she was forgetful. And those began going up until she passed away." Some nurses noted "she was depressed as well as confused and forgetful. Other times they said she was agitated." Dr. Clayton opined that by the end of February 2007, Lesey had neither "the executive functioning nor the overall mental capability" to transact business or sign legal documents. As to Lesey's dementia, Dr. Clayton testified that "as you're losing brain cells and if you keep losing so many, some days your brain cells that you have left function better than other days" but that "you'll still have a significant limitation."
Dr. Clayton also noted the deterioration of Lesey's handwriting as evidence of her mental decline. She observed that Lesey's signature got worse on every document relevant to this case that she signed. Indeed, the fifth amendment, signed shortly before her death in 2008, constitutes a scribble of three letters. Dr. Clayton testified: "Even someone with blindness, if they've been signing their name in a certain way, would continue to be able to do that."
The Kinsels testified that well before she executed the fourth Amendment in 2007, Lesey was consistently confused, forgetful, and unable to comprehend conversations and documents. She would ask for a car she no longer owned and could no longer understand jokes. Due at least in part to her loss of vision, she could no 421*421 longer read, work crossword puzzles, or play board games, all pursuits she once enjoyed. Cathy testified to a "dramatic change in her mental and physical health" beginning in 2006: "She was very forgetful. She was hard to talk to. Just a little disassociative with people." Carole testified that by Thanksgiving of 2006 Lesey was no longer lucid and would talk and respond only in short sentences or by nodding. "She was not the Lesey that I had known my entire life," Carole testified.
Jeff testified that in late 2006 Lesey was "clearly becoming more and more confused and forgetful, and she would forget things that she had recently done or did." Jeff visited Lesey on February 27, 2007, four days after Lesey executed the fourth amendment, and testified she was "very agitated and confused." Lesey told Jeff: "I think I've signed something and I don't know what I've signed." Jeff testified that by 2008, Lesey only sometimes remembered conversations from minutes earlier. He added, "[O]ftentimes I found that she either had not heard what I said or understood it, or didn't understand it, because I'd have to repeat myself." The jury also heard a recording of a voicemail Lesey left in February 2008 that the Kinsels argue demonstrates her incoherence.
Although Jane maintained at trial that Lesey never lost mental capacity, the jury considered e-mails she wrote potentially indicating otherwise. In an e-mail to Paul Prince dated December 16, 2007, Jane stated, "It turns out Lesey must not have been as lucid as I thought." Jane also sent Keith an e-mail on March 11, 2008, alerting him that Lesey had purportedly granted permission for him to talk to Jeff about her estate planning. Revealingly, Jane wrote: "I doubt Lesey is aware of what she authorized, if anything more than a talk."
We agree with the court of appeals that there is sufficient evidence to support the jury's mental-incapacity finding. Keith's testimony, and that of those who accompanied him on his visits with Lesey, tends to contradict the evidence that Lesey was mentally impaired. And the evidence shows that Keith took his responsibilities seriously and executed his duties carefully and ably. But it is not our place to weigh the testimony adduced at trial. That is the jury's province.
2. The Kinsels' fraud claims
The court of appeals further held the trial court erred by instructing the jury to award fraud damages for "[t]he value of [the Kinsels'] present and future interest, if any, in the Kinsel Ranch, including minerals." 518 S.W.3d at 12, 2015 WL 2085220 at *5. Because this is an incorrect measure of damages for a fraud claim and the record contains no evidence of the correct measure, the court of appeals rendered judgment rejecting the Kinsels' fraud recovery. We agree.
The court of appeals construed the Kinsels' fraud claims as seeking out-of-pocket damages; the Kinsels do not refute that characterization. Out-of-pocket damages are measured by the difference between the value of what was given and received. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007). As the court of appeals correctly observed, they are determined at the time of the sale or transaction induced by the fraud. See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997).
The court of appeals correctly concluded that the Kinsels' out-of-pocket damages "would be the difference between the value of their interest in the land and the value of what they received from the sale at the time of the fraud." 518 S.W.3d at 13, 2015 WL 2085220 at *6. The Kinsels who had interests in the ranch sold them and received money in return. Out-of-pocket 422*422 damages are not designed to contemplate what the Kinsels hoped to receive from Lesey's trust if she died without selling the ranch or changing her estate planning.
We acknowledge that the Kinsels urge us to adopt a "flexible" approach to damages to account for the inheritance expectancy they gave up in reliance on misrepresentations that Lesey was running out of money. But we cannot be so flexible as to ignore the constraints of this particular remedy. The trial court's attempt to accommodate the Kinsels' fraud theory results in an unworkable damages model. By the time of trial in 2012, the Kinsels had no present ownership interests in a ranch sold in 2008, nor did evidence show the ranch's present value at the time of trial. Neither did the Kinsels have a future interest in the ranch; they had only an expectancy that they would inherit portions of Lesey's share. The trial court erroneously submitted an out-of-pocket damages instruction to the jury. In response to that submission, the only possible amount of fraud damages is zero.
The trial court's faulty instruction amounted to harmful error. See Arthur Andersen, 945 S.W.2d at 817 ("Because the charge failed to instruct the jury on the proper measure of direct damages, the submission was reversible error."). We further agree with the court of appeals that no evidence in the record supports a correct measure of damages. The record contains no evidence of the value of any of the Kinsels' interest in the ranch other than its sales price. Nor is there any evidence that the proceeds each Kinsel received were less than the value of their interests.
In fairness, the Kinsels could not have been expected to put on such evidence because their fraud theory is based on relinquishment of their expected inheritances, not what was received for the sale of their interests in the ranch. And they concede the "difficulty in fitting lost inheritance damages squarely into one of these [fraud-damages] categories," which they argue "demonstrates that a cause of action for tortious interference with inheritance rights is a more appropriate mechanism for litigating this and similar disputes."
3. Tortious interference with an inheritance
The Second Restatement of Torts recognizes that liability can arise when someone "intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received" through "fraud, duress, or other tortious means." RESTATEMENT (SECOND) OF TORTS § 774B (1979). A handful of Texas courts of appeals have expressly recognized tortious interference with an inheritance as a cause of action. Two courts — the Amarillo court of appeals in this case 423*423 and the Austin court of appeals — have declined to recognize it on the basis that intermediate courts of appeals should not create new causes of action.
The Kinsels argue this Court recognized the tort nearly seventy years ago in Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559 (1948), and that the Legislature has done so by statute. We disagree. Neither our precedent nor the Legislature has blessed tortious interference with an inheritance as a cause of action in Texas. Its viability is an open question. The Texas appellate courts that have recognized the tort largely relied on King v. Acker, 725 S.W.2d 750 (Tex. App.-Houston [1st Dist.] 1987, no writ). The King court noted that Texas "seems" to recognize the cause of action and accepted the argument that we impliedly recognized it in Pope. Id. at 754. But this is an inaccurate reading of our precedent.
In Pope, a gravely ill woman who had no will attempted to execute one devising all her property to a friend. 211 S.W.2d at 559-60. Two of her heirs-at-law prevented her from doing so by "physical force or by creating a disturbance," and she died intestate shortly thereafter. Id. The Court upheld a constructive trust imposed on the property that passed intestate to the decedent's heirs. We observed the case was "a typical one for the intervention of equity to prevent a wrongdoer, who by his fraudulent or otherwise wrongful act has acquired title to property, from retaining and enjoying the beneficial interest therein, by impressing a constructive trust on the property in favor of the one who is truly and equitably entitled to the same." Id. at 560. Pope did nothing to create a stand-alone tort. It simply concluded the facts gave rise to one of the "numberless" instances in which a court, acting in equity, might impose a constructive trust on property obtained "through bad faith and unconscientious acts." Id. (quotations omitted).
Nor are we persuaded that the Legislature has statutorily created the cause of action. The Kinsels point us to section 54.001(a) of the Estates Code, which provides: "The filing or contesting in probate court of a pleading relating to a decedent's estate does not constitute tortious interference with the inheritance of the estate." This statute conceivably implies that the Legislature believes the tort is available under Texas law. Indeed, as some courts of appeals have recognized the cause of action, it is no surprise the Legislature acted to limit its application. This legislative limitation, however, cannot be construed to establish a cause of action, nor is it controlling of our decision on whether it exists at common law. Barring more explicit legislative action, the question of whether the tort should exist under Texas law is ours to answer.
We take a host of factors into account when considering a previously unrecognized 424*424 cause of action. Not the least of them is the existence and adequacy of other protections. See Ritchie v. Rupe, 443 S.W.3d 856, 879-82 (Tex. 2014). In this case, the Kinsels secured judgments holding Jane, Bob, Keith, and Jackson Walker personally liable for fraud and tortious interference with their inheritances. But the trial court also imposed a constructive trust on the funds Jane inherited from Lesey as the trust's residual beneficiary. Provided the trial court acted in its discretion in doing so, an issue we separately address below, we see no compelling reason to consider a previously unrecognized tort if the constructive trust proved to be an adequate remedy.
The jury viewed the Kinsels' damages as equal to the amount of Lesey's share of the ranch-sale proceeds the Kinsels would have inherited had the ranch not been sold during her lifetime. Whether it was answering the damages question for common-law fraud, statutory fraud, or tortious interference with an inheritance, the jury entered the same amount: a total of $3.056 million divided by each of the Kinsels' expected inheritances. And because Lesey's share of the ranch-sale proceeds flowed to Jane on Lesey's death, the trial court imposed a constructive trust on "any monies that [Jane] would be legally entitled to from the Trust." 518 S.W.3d at 24, 2015 WL 2085220 at *15. The court of appeals narrowed the constructive trust's reach to include just the ranch-sale proceeds. Id. at 21, 2015 WL 2085220. So as modified by the court of appeals, the constructive trust is imposed on exactly the amount of money the jury believed the Kinsels were entitled to under any theory of recovery.
The Kinsels acknowledge the proceeds held in constructive trust are "the same" as the damages the jury awarded for fraud and tortious interference with their inheritance expectancies. But they argue this remedy is inadequate because Jane has depleted the trust to pay attorneys for the defense of this lawsuit. According to them, less than $2 million of the original $3.056 million remains.
The parties litigated this issue in the trial court. They initially signed a Rule 11 agreement on October 1, 2008, under which Jane agreed "not to make any payments out of the Lesey B. Kinsel Trust except to pay taxes, trustee fees, ... and attorneys fees associated with the administration of the Lesey B. Kinsel Trust or the defense of the Lesey B. Kinsel Trust in this lawsuit until there is a final judgment." About a year before trial, however, the Kinsels filed a motion to recoup trust funds used to pay attorneys, which the trial court denied. The Kinsels filed a motion for reconsideration after trial but before the trial court entered judgment on the jury's verdict. The trial court granted that motion in part, ordering only that no further payments be made from the trust. The Kinsels did not appeal the trial court's ruling on either motion.
Under these circumstances, the constructive trust was an adequate remedy even if it ultimately does not provide the full measure of relief the jury awarded. This is not a case in which the law simply does not address the Kinsels' injury. That might be the case if our inquiry were 425*425 limited to the Kinsels' fraud theory, which we have already held was not viable because it presents a measure of damages incompatible with that cause of action. But we are not turning the Kinsels away on an academic distinction; the law provides other avenues for relief. A constructive trust on the money in question acknowledges and provides redress to the Kinsels' injuries.
If the constructive trust ultimately does not provide full relief, it is not because it is inherently inadequate to redress this wrong. The Kinsels seem to have agreed, initially at least, to allow Jane to use trust funds to pay attorneys to defend this case. They twice moved the trial court to order Jane to replenish those spent monies. The trial court declined to do so. We have no comment on the correctness of those rulings; they are not before this Court. But the fact that the Kinsels were able to argue for replenishment of the trust partially demonstrates the adequacy of the constructive trust as a remedy. That they were unsuccessful in convincing the trial court to do so is not a persuasive argument for this Court to recognize a new cause of action.
We acknowledge that any shortfall in the Kinsels' recovery could be overcome by expressly recognizing tortious interference with an inheritance as a cause of action, which would make Jane, Bob, Keith, and Jackson Walker jointly and severally liable to the Kinsels. It would then be irrelevant how much the constructive trust does or does not capture, provided the Kinsels could recover from those parties directly. But the question as we see it is not whether we can increase the Kinsels' recovery, but whether the facts of this case warrant an enlargement of our body of tort law. We do not believe they do. The law provides an adequate remedy in this case; the Kinsels simply were unsuccessful in fully attaining it.
4. Imposition of a constructive trust
Jane and Bob argue, however, that imposition of the constructive trust was itself an abuse of discretion. The court of appeals disagreed but narrowed the constructive trust's scope. We agree with the court of appeals that the trial court acted within its discretion in imposing a constructive trust. However, the Kinsels did not specifically appeal the court of appeals' decision to narrow the constructive trust's scope. We therefore have no basis to consider whether that court acted properly in doing so.
"A constructive trust is an equitable, court-created remedy designed to prevent unjust enrichment." KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 87 (Tex. 2015) (citing Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex. 1974) ("Constructive trusts, being remedial in character, have the very broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice.")).
Jane and Bob argue the trial court abused its discretion because Lesey's gifts of shares of the ranch were adeemed when the ranch was sold. They further argue there was no "confidential relationship" between Jane and the Kinsels nor any evidence that Jane defrauded Lesey. The first point misses the entire theory of the Kinsels' case: they were convinced to sell the ranch and give up their prospective inheritances under false pretenses. It is precisely because their inheritances were adeemed that the Kinsels brought this action. The second point views the permissible bases for a constructive trust too narrowly. It is true that we recently 426*426 recognized that a "breach of a special trust or fiduciary relationship or actual or constructive fraud" is "generally" necessary to support a constructive trust. Id. But in that same case we reaffirmed our statement in Pope that "[t]he specific instances in which equity impresses a constructive trust are numberless — as numberless as the modes by which property may be obtained through bad faith and unconscientious acts." Id. (quoting Pope, 211 S.W.2d at 560).
In Pope, the decedent's heirs-at-law prevented her from executing a will leaving her estate to a friend. We had "no difficulty" approving of the constructive trust imposed by the trial court, calling the case "a typical one for the intervention of equity to prevent a wrongdoer, who by his fraudulent or otherwise wrongful act has acquired title to property, from retaining and enjoying the beneficial interest therein, by impressing a constructive trust on the property in favor of the one who is truly and equitably entitled to the same." Pope, 211 S.W.2d at 560. There was no need to establish a "special trust or fiduciary relationship" between the intended beneficiary and the heirs-at-law or establish that the heirs-at-law defrauded the decedent. Neither finding would be applicable to the facts at hand, and the justification for a constructive trust is not so constrained. See Meadows,516 S.W.2d at 131 ("[T]here is no unyielding formula to which a court of equity is bound in decreeing a constructive trust, since the equity of the transaction will shape the measure of relief granted.").
Finally, Jane and Bob argue the Kinsels' "unclean hands" prevent them from seeking equitable relief. Jane and Bob argue the Kinsels knowingly proceeded with the ranch sale aware of Lesey's mental state, and that those who owned shares of the ranch already profited handsomely from the sale. But a party relying on the "unclean hands" doctrine must show that she herself suffered because of the opposing party's conduct. See Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 410 (1960). In other words, Jane must show she was harmed by the Kinsels' decision to agree to the sale despite their awareness that Lesey lacked capacity to do so. And she cannot do so. As residual beneficiary to Lesey's trust, Jane benefitted from the ranch sale. Indeed, the entire theory of the Kinsels' case is that Jane manipulated them to sell in order to increase her share under Lesey's trust. As such, any malfeasance on the Kinsels' part is collateral to the basis on which the Kinsels seek equitable relief. See Davis v. Grammar,750 S.W.2d 766, 768 (Tex. 1988) ("The `unclean hands' doctrine cannot be used as a defense if [the] unlawful or inequitable conduct is merely collateral to [the] cause of action.").
With Jane's objections dispatched, we conclude the trial court acted within its discretion in imposing a constructive trust. We have already held that the jury's finding that Lesey lacked mental capacity to execute the fourth and fifth amendments to her trust and to execute the ranch-sale documents is supported by the evidence. The jury also found that Lesey was unduly influenced by Jane, Bob, and Keith in executing those documents. As previously 427*427 discussed, the court of appeals concluded sufficient evidence supported the mental-incapacity finding, but for reasons it did not explain, it did not separately consider the undue-influence finding. On appeal to this Court, Jane and Bob challenge the court of appeals' disposition of the mental-incapacity finding but not the undue-influence finding. As such, we have no basis to review it here. We hold the mental-incapacity finding, coupled with the undue-influence finding, provided a more than adequate basis for the trial court to impose a constructive trust.
5. Attorneys fees
Both the Kinsels and Jane and Bob appealed the court of appeals' disposition of the attorneys-fees issues. Jane and Bob argue no evidence supports an award to the Kinsels for trial or appellate attorneys fees. The Kinsels argue the court of appeals erred by remanding their $800,000 award for attorneys fees through trial to the trial court for reconsideration and by affirming the judgment for no attorneys fees for appeals. We agree with the court of appeals' holdings.
Based on its reversal of the Kinsels' fraud and tortious-interference-with-an-inheritance recoveries, the court of appeals correctly concluded the Kinsels could only recover attorneys fees under the Uniform Declaratory Judgment Act, which permits a trial court to "award costs and reasonable and necessary attorney's fees as are equitable and just." TEX. CIV. PRAC. & REM. CODE § 37.009. The determination of reasonable and necessary attorneys fees is an issue generally left to the trier of fact. Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009). A reviewing court may not simply substitute its judgment for a jury's. Id. The party seeking recovery bears the burden of proof to support the award. Id.
To support its claim for attorneys fees, counsel for the Kinsels testified regarding legal services rendered and various work performed through trial, each attorney's related experience, and what factors each considered to determine a reasonable fee. Although the court of appeals found this testimony "lacking in specifics," it was "at the very least, the quantum of evidence found sufficient" by this Court in Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010). 518 S.W.3d at 27, 2015 WL 2085220 at *18. We agree.
The court of appeals further correctly recognized that a claimant must segregate legal fees accrued for those claims for which attorneys fees are recoverable from those that are not. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006). Here, the reversal of the Kinsels' fraud and tortious-interference-with-an-inheritance recoveries negates an award for attorneys fees in pursuit of those claims. Accordingly, to recover attorneys fees, the Kinsels were required to segregate work relating to recoverable and non-recoverable claims. An exception exists only when the fees are based on claims arising out of the same transaction that are so intertwined and inseparable as to make segregation impossible. Id. at 313-14. But "it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated." Id.
Counsel for the Kinsels testified the claims were "inextricably intertwined," such that "whatever cause of action the plaintiffs have in this case, the facts basically relate to each of the causes of action." 428*428 518 S.W.3d at 28, 2015 WL 2085220 at *18. But the court of appeals observed that some of the Kinsels' claims addressed the "status of [Lesey's] mental abilities" while others depended on a showing that Jane, Bob, and Keith "uttered false statements" and that the Kinsels relied on those statements. Id. at 28, 2015 WL 2085220 at *18. As such, "the causes of action were distinct, and facts necessary to prove each did not overlap." Id. at 28, 2015 WL 2085220 at *18. We agree.
A failure to segregate attorneys fees does not preclude an attorneys-fees recovery. Chapa, 212 S.W.3d at 314. The issue may be remanded to the trial court for reconsideration with sufficiently detailed information for a meaningful review of the fees sought. Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam). But the parties dispute whether any documentation of the Kinsels' legal fees exists. The Kinsels assure us that counsel maintained appropriate time records for legal services provided, while Jane and Bob argue a remand on this issue alone would be a waste of judicial resources and that we should render judgment that the Kinsels are not entitled to attorneys fees. But even if contemporaneous records are unavailable, we have allowed for reconstruction of an attorney's work and consideration of any evidentiary support of the time spent and tasks performed. See Chapa, 212 S.W.3d at 314. We agree with the court of appeals that a remand to the trial court for reconsideration of the attorneys-fees award, consistent with the opinions of the court of appeals and this Court, is proper.
Finally, we agree with the court of appeals that "[g]iven the sparse record before it, the jury could well have decided that it was not afforded sufficient basis upon which to calculate reasonable attorney's fees related to subsequent appeals." 518 S.W.3d at 29, 2015 WL 2085220 at *19. As the court of appeals observed, counsel offered a bare assertion of reasonable fees for appellate work through appeal to this Court. See id. The court of appeals concluded that testimony was "lacking in specifics to a much greater degree than their opinions pertaining to fees incurred through trial." Id. Based on our review of the record, we agree. The jury could have reasonably awarded no attorneys fees for appeals based on the evidence offered at trial.
* * *
For the reasons explained above, we affirm the court of appeals' judgment and remand the case to the trial court for further proceedings consistent with this opinion.
Justice Lehrmann did not participate in the decision.
 Although Jeff and Carole had an inheritance expectancy in the ranch, neither owned an interest when it sold.
 A dissenting justice would have followed "the weight and authority of numerous other intermediate appellate courts of this State ... that have recognized that cause of action." 518 S.W.3d at 30, 2015 WL 2085220 at *20 (Pirtle, J., dissenting).
 The Kinsels argue that if we do not allow their fraud recovery, we should allow them to recover their "undisputed damages" based on the jury's findings that "Defendants unduly influenced Lesey when she lacked mental capacity." We disagree. Undue influence itself is not an actionable tort; consequently, damages are not recoverable based solely on an undue-influence finding. See RESTATEMENT (SECOND) OF CONTRACTS ch. 7 topic 2, Introductory Note (1981) ("[D]uress and undue influence ... are not generally of themselves actionable torts...."). Rather, an undue-influence finding typically is grounds for setting aside an otherwise binding document, in this case a trust or deed. See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963) (undue influence is a ground for invalidation of a will).
 See, e.g., Stern v. Marshall, 471 S.W.3d 498, 516 (Tex. App.-Houston [1st Dist.] 2015, no pet.); Magana v. Citibank, N.A., 454 S.W.3d 667, 685 (Tex. App.-Houston [14th Dist.] 2014, pet. denied); In re Estate of Valdez,406 S.W.3d 228, 233 (Tex. App.-San Antonio 2013, pet. denied); In re Estate of Russell, 311 S.W.3d 528, 535 (Tex. App.-El Paso 2009, no pet.).
 See Anderson v. Archer, 490 S.W.3d 175, 179 (Tex. App.-Austin 2016, pet. filed) ("To permit the Archers to recover here would, similarly, raise a litany of questions regarding the contours and scope of the cause of action — questions that should properly be resolved by the Legislature or Texas Supreme Court first.").
 "When recognizing a new cause of action and the accompanying expansion of duty, we must perform something akin to a cost-benefit analysis to assure that this expansion of liability is justified." Roberts v. Williamson, 111 S.W.3d 113, 118 (Tex. 2003); see also Ritchie v. Rupe, 443 S.W.3d 856, 878 (Tex. 2014) ("The analysis is complex, requiring consideration of a number of non-dispositive factors including, but not limited to: the foreseeability, likelihood, and magnitude of the risk of injury; the existence and adequacy of other protections against the risk; the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the persons in question; and the consequences of imposing the new duty, including whether Texas's public policies are served or disserved; whether the new duty may upset legislative balancing-of-interests; and the extent to which the new duty provides clear standards of conduct so as to deter undesirable conduct without impeding desirable conduct or unduly restricting freedoms." (internal marks altered)).
 We assume, for the sake of argument, sufficient evidence supports the jury's finding.
 Although he did not appeal the jury's undue-influence finding, Keith argues in response to a separate issue that there is no evidence he unduly influenced Lesey. We agree. Keith did not prepare the fourth amendment nor did he meet Lesey until the day he assisted with its execution. There is no evidence at all that he exerted any influence over Lesey in signing it. Moreover, a majority of the ranch owners, including Lesey, had already agreed to sell, and Paul Prince had signed a sales contract on their behalf, before Keith was contacted to assist with the transaction. Nor is there any evidence Keith exercised undue influence on Lesey to execute the fifth amendment to her trust. None of these transactions benefitted Keith personally.