FOR PUBLICATION


ATTORNEY FOR APPELLANTS:    ATTORNEY FOR APPELLEES:

GEORGE M. STRECKFUS     MARCUS M. BURGHER III    
New Albany, Indiana    Luckett, Burgher & Burgher
    Corydon, Indiana

     IN THE COURT OF APPEALS OF INDIANA

MARCELLA A. KEITH,          )

BONNIE KAY MARKS, and            )
TERRY G. DOOLEY,                 )
                                 )
Appellants-Plaintiffs,           )
                                 )
vs.                              )    No.  22A05-0303-CV-112
                                 )
PAUANANI JILL DOOLEY, and        )
STANLEY V. PENNINGTON,           )               
                                 )
Appellees-Defendants.            )

    APPEAL FROM THE FLOYD SUPERIOR COURT
    The Honorable Richard G. Striegel, Judge

    January 21, 2004

    OPINION - FOR PUBLICATION


VAIDIK, Judge

(emphasis added). Thus, it is apparent from the will contest statute that the 1999 Will can be contested because of actions before its execution, such as fraud or duress, or actions after its execution, such as physically destroying the will, executing a codicil to the will, revoking the will by writing, or executing a new will—all of which could affect the 1999 Will’s validity. Nieces and Nephew’s attempt to define the subject matter of the Tort Action differently from that of the Will Contest by isolating the New Will from the 1999 Will misses the mark. The heart of their argument is that the 1999 Will is not valid because Jill and Pennington prevented Pfeiffer from executing a new will, which would have revoked the 1999 Will. Therefore, the subject matter in the Will Contest and the Tort Action is substantially the same.
We next address whether the remedies in both actions are the same, which oftentimes is the determinative factor in this type of case. This Court addressed remedies in interference with inheritance tort actions in Minton v. Sackett, 671 N.E.2d 160 (Ind. Ct. App. 1996). In Minton, we recognized for the first time in Indiana the tort of interference with an inheritance. Id. at 162. Specifically, we looked to the states of Florida, Illinois, Iowa, and Texas, all of whom had adopted the approach of the Restatement (Second) of Torts § 774B (1979), which provides: “One who by fraud 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 others for the loss of the inheritance or gift.” Id. In determining whether to adopt the approach of the Restatement, we acknowledged that we must balance the competing goals of providing a remedy to injured parties and honoring the strictures of Indiana’s probate code, which provides that a will contest is the exclusive means of challenging the validity of a will. Id. We noted that “[a] majority of the states [that] have adopted the tort of interference with an inheritance have achieved such a balance by prohibiting a tort action to be brought where the remedy of a will contest is available and would provide the injured party with adequate relief.” Id.
We adopted this balanced approach in Minton and ultimately affirmed the trial court’s grant of summary judgment in favor of the defendant because the plaintiff had a will contest pending at the same time and “the remedies available under the will contest adequately provide for the damages sought in” the plaintiff’s tort action. Id. Minton represents a public policy decision that a plaintiff must challenge tortious conduct surrounding the execution or revocation of a will in the will contest, but if the will contest does not provide an adequate remedy, only then can the plaintiff file an independent tort action for interference with an inheritance. See footnote See, e.g., DeWitt v. Duce, 408 So. 2d 216, 218 (Fla. 1981) (“The rule is that if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.”); In re Estate of Hoover v. Hoover, 513 N.E.2d 991 (Ill. Ct. App. 1987) (“The tort [of interference with an inheritance] will not lie, however, where the remedy of a will contest is available and would provide the injured party with adequate relief.”). The adequacy of a remedy is not dependent upon whether a will contestant prevails, but upon whether the contestant has an opportunity to pursue the remedy. Minton, 671 N.E.2d at 163.
We now turn to the case before us. When Nieces and Nephew filed their Tort Action, the Will Contest was pending. Not only did Nieces and Nephew have the opportunity to challenge Jill and Pennington’s tortious conduct in the Will Contest, but the remedies available in the Will Contest and the Tort Action are substantially the same. In the Will Contest, Nieces and Nephew sought revocation of the 1999 Will and distribution of Pfeiffer’s estate pursuant to Indiana’s intestacy laws. Under intestacy laws, Nieces and Nephew would receive the bulk of Pfeiffer’s estate if the 1999 Will were revoked. See footnote In the Tort Action, Nieces and Nephew sought compensatory damages in an amount that would have made them the chief beneficiaries of Pfeiffer’s estate.See footnote The remedies sought in each action are substantially the same.
Because the Will Contest and the Tort Action involve substantially the same parties, subject matter, and remedies, we conclude that the actions are the same. Therefore, the trial court did not err in dismissing the Tort Action pursuant to Trial Rule 12(B)(8).See footnote
    Judgment affirmed.
KIRSCH, J., and BAILEY, J., concur.