This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Robert Botcher,





Terry Botcher, et al.,



Ruth Heintz, as Personal Representative

of the Estate of Raymond Botcher,



Filed February 6, 2001

Peterson, Judge


Houston County District Court

File No. C20070



Ken D. Schueler, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, Rochester, MN 55903 (for appellant)


Lee Ann Richle, Streater & Murphy, P.A., 64 East Fourth Street, Winona, MN 55987 (for respondents Botcher, et al.)


Al Wieser, Jr., 200 Wieser Professional Building, 33 South Walnut, La Crescent, MN 55947 (for respondent Heintz)



            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            After executing a will that would have transferred most of his property to his two sons at his death to be shared equally, the deceased sold a farm to one of his sons by contract for deed for approximately one-third of its fair market value.  The other son, appellant, brought a civil action seeking rescission of the contract and asserting a claim for tortious interference with receipt of a gift or inheritance.  The district court dismissed appellant’s rescission claim after finding that appellant was not a party to the contract and, therefore, lacked standing to assert an equitable claim under the contract for deed.  The court dismissed appellant’s tort claim because Minnesota courts have not recognized this tort and appellant has an adequate remedy under the probate code.  We affirm.


            Raymond Botcher owned a farm in Houston County.  On January 24, 1994, Raymond executed a will that gave respondent Terry Botcher, Raymond’s son, the option of purchasing the farm at its fair market value.  In December 1996, Raymond’s physician diagnosed him as suffering from Alzheimer’s disease and dementia.  On September 29, 1997, Raymond executed a codicil to the will that allowed Terry to purchase the farm at 90% of its fair market value.  On February 3, 1998, Raymond executed a contract for deed selling the farm to Terry and respondent Richard Botcher, Terry’s son, for approximately one-third of its fair market value.  Raymond died on January 16, 1999.

On January 25, 1999, respondent Ruth Heintz, the personal representative of Raymond’s estate, filed a petition to probate Raymond’s will.  On April 1, 1999, Heintz filed a petition to affirm the sale of Raymond’s farm to Terry and Richard.  Appellant Robert Botcher, Raymond’s other son, filed an objection and petitioned for appointment of a special administrator to review the sale.  The district court granted appellant’s motion and a special administrator was appointed.  The special administrator advised the court that he did not believe that Heintz could successfully meet the burden of proof necessary to set aside the contract for deed.  Heintz then refiled the petition to affirm the sale of Raymond’s farm to Terry and Richard Botcher, and the court affirmed the sale.

Before the district court affirmed the sale, appellant brought a separate action seeking rescission of the contract for deed, claiming that Raymond lacked capacity to contract and that Terry or Richard may have procured the contract by exercising undue influence over Raymond.  Appellant also asserted a claim for damages for tortious interference with his inheritance.  Respondents moved to dismiss for failure to state a claim upon which relief can be granted.  The district court granted the motion as one for summary judgment after considering evidence outside the pleadings. 


On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn. 1999).  This court must view the evidence in the light most favorable to the nonmoving party.  Id.


            Appellant lacked standing to seek rescission of the contract for deed because he was not a party to the contract.  See Northern Nat’l Bank v. Northern Minn. Nat’l Bank, 244 Minn. 202, 208, 70 N.W.2d 118, 123 (1955) (stranger to contract has no rights under contract); Anderson v. First Northtown Nat’l Bank, 361 N.W.2d 116, 118 (Minn. App. 1985) (same).  A person not a party to a contract may only sue under that contract if the person is a third-party beneficiary.  See Northern Nat’l Bank, 244 Minn. at 208-09, 70 N.W.2d at 123 (only party or third-party beneficiary may enforce contract); Anderson, 361 N.W.2d at 117-18 (affirming dismissal of breach-of-contract action brought by person who was not a party to contract).  Appellant admits that he is not a third-party beneficiary of the contract.  The district court did not err by dismissing appellant’s rescission claim because appellant lacks standing to assert the claim.


Appellant argues that the district court erred by failing to recognize the tort of intentionally interfering with receipt of a gift or inheritance under Restatement (Second) of Torts § 774B (1977), which provides:

One 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.


The Minnesota Supreme Court has stated that creating a new tort is not a function of this court.  See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 439 (Minn. 1990) (“[c]reating a new tort is a function properly reserved for the supreme court based upon appropriate facts and record”).  This court has recognized that it is not within its power to recognize new torts, but it has extended the scope of existing torts.  See Stubbs v. North Mem’l Med. Ctr., 448 N.W.2d 78, 83 (Minn. App. 1989) (declining to recognize new cause of action because “function of this court is primarily decisional and error correcting, rather than legislative or doctrinal”), review denied (Minn. Jan. 12, 1990); R.A.P. v. B.J.P., 428 N.W.2d 103, 107-09 (Minn. App. 1988) (recognizing causes of action for negligent and fraudulent transmission of genital herpes), review denied (Minn. Oct. 19, 1988).

            Even if this court has the power to recognize the tort of interference with inheritance, we decline to do so in this case because the remedies available to appellant under the probate code are adequate to protect any interest he has in his father’s estate.  See Dennis D. Reaves, Tortious Interference with an Expected Gift or Inheritance, 47 J. Mo. B. 563, 565 (1991) (“majority of courts recognizing [tort of interference with inheritance] * * * have refused to allow the tort action unless plaintiff first tries to obtain an adequate remedy in the probate court or shows that it is impossible to obtain an adequate remedy in a probate action”).

When Heintz filed a petition in the district court to have the sale of the farm affirmed, appellant filed an objection and petitioned for the appointment of a special administrator based on Heintz’s refusal to fully investigate the contract for deed.  See Minn. Stat. § 524.3-614(2) (1998) (allowing probate court to appoint special administrator when necessary to preserve estate where “personal representative cannot or should not act”).  The probate court appointed a special administrator for the limited purpose of determining whether the contract could be challenged.  See Minn. Stat. § 524.3-617 (1998) (giving special administrator power of personal representative for limited duty).  The special administrator did not believe that the contract could be set aside. 

Appellant could have also sought to have Heintz removed for cause in the probate proceeding.  See Minn. Stat. § 524.3-611(b) (1998) (providing for removal of personal representative at any time for “mismanag[ing] the estate or fail[ing] to perform any duty pertaining to the office”).  In fact, appellant raised the issue of whether Heintz failed to perform her duties as personal representative.  When he moved to have a special administrator appointed, he argued that Heintz “refuse[d] to fully investigate and pursue the issue of whether Raymond Botcher had mental capacity or was subject to undue influence at the time the farm was sold by contract for deed.”