concurring.
[¶ 10] I concur with the Court’s conclusion that Utterback’s holding must be restricted to evidentiary issues directly involving will contests. I also concur with the Court’s conclusion that Gardner must prove the extent of his expectancy because, in order to make out a claim for tortious interference with inheritance, the plaintiff must demonstrate that the tortious action of the wrongdoer caused the plaintiffs damages.5 I write separately, however, to address the confusion that I believe was created by the language of Morrill I.
[¶ 11] In Morrill I, Gardner appealed from the trial court’s decision granting George’s motion for judgment as a matter of law at the conclusion of Gardner’s case. At trial, Gardner presented no more than the bald fact of his biological relationship to his parents on the issue of his expectancy. On appeal, Gardner did not provide a transcript of the trial proceedings. Nonetheless, we concluded that a trial transcript was not necessary for the review of the narrow question presented, and held that:
[s]imply by proving that he is their child and therefore a natural recipient of his parents’ bounty, Gardner has established an expectancy of inheriting a portion of his parents’ estate. Because he is their child, the existence vel non of a will is irrelevant to the issue whether an expectancy has been created.
679 A.2d at 521 (emphasis added). Because the only evidence presented by Gardner on the existence, nature or extent of his expectancy was his relationship to his parents and because we concluded that evidence limited *1043to that fact was sufficient to allow Gardner to get to the jury, Morrill I held that proof by a plaintiff that he was a child of his parents was sufficient to meet his burden on all issues related to the expectancy. Accordingly, on remand, the trial court instructed the jury that “a child has an expectancy of inheriting a portion of his parents’ estate.”
[¶ 12] Recognizing the evidentiary gap created by the language of Morrill I, the Court today concludes that the trial court should have understood our opinion in Mor-rill I to mean that a child has an expectancy in his parents’ estate only to the extent proven. We did not, however, place any such burden of proof on Gardner in Morrill I, but simply noted that “[e]vidence concerning tes-tacy ... may be relevant to enhance or diminish the expectancy and to determine damages.” Morrill I, 679 A.2d at 521 (emphasis added). As the Court has now correctly held, the plaintiff does have the burden of proving both the existence and the extent of the expectancy. If the plaintiff fails to offer evidence of the existence and extent of the expectancy, the plaintiffs claim cannot survive a motion for judgment as a matter of law. To the extent that Morrill I held otherwise, I would overrule its holding.
. See Restatement (Second) of Torts § 774B cmt. d (1979) ("An important limitation upon the rule stated in this Section is that there can be recovery only for an inheritance or gift that the [plaintiff] would have received but for the tortious interference of the actor. This means that, as in other cases involving recovery for loss of expectancies ..., there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator....”).