The Astor Disaster: A Legacy of Influence and Undue Influence

Just how un-entitled to the Astor fortunes was Anthony Marshall?

Consider that John Jacob Astor, the nation’s first multi-millionaire had earned his fortune the old fashioned way, through hard work, an entrepreneurial spirit, and perseverance.  First, he built an international fur trading empire.  Then, he turned his attention and resources to buying New York City properties – lots of New York City properties. He bought so many that when he died in 1848, his estate was valued at over $20,000,000 – back when that was real money.

His son, William Backhouse Astor, Sr., though not the dynamo his father had been, managed and preserved the properties such that at the time of his death in 1875, he was one of the wealthiest men in America – leaving an estate of over $50,000,000.

By the time his sons, John Jacob Astor, III, and William Backhouse, Jr., assumed the helm of the Astor riches, the family aristocracy, now in its third generation, was firmly entrenched in the world of arts, philanthropy, and social circles befitting only to royalty.

Most notable in the fourth generation of the Astor influence was John Jacob Astor, IV who, during his first marriage, fathered Vincent Astor and Ava Astor.  He later divorced, and, in an apparent mid-life crisis, married 18-year-old Madeline Talmadge. To avoid the media frenzy, they decided to honeymoon abroad.  During their travels, Madeleine conceived, and the couple decided to return home in 1912 and boarded the Titanic for its maiden voyage to New York.  Unfortunately, an iceberg altered their plans, and Madeleine, in her delicate state, was ushered into a lifeboat. John Jacob Astor, IV, the wealthiest man on the ship, died in the icy Atlantic waters.  His son, Vincent Astor, then 19-years-old, inherited his father’s estate of approximately $200,000,000 and was soon dubbed “the richest boy in America”.  The fifth generation of Astor wealth had surfaced.

It’s been said that money doesn’t buy happiness, and Vincent’s first marriage to Helen Dinsmore Huntington proved that point.  Second time’s a charm?  Not quite.  Marriage number two to Minnie Cushing also ended in divorce. But as a condition of the divorce, Minnie agreed to find Vincent a new spouse – one who was charming, energetic and happy – everything that Vincent was not.

Far from the Astor circles, Roberta Brooke Russell, at the tender age of 17,  had married her first husband, J. Dryden Kuser and had her first – and only child – Anthony Dryden Kuser. That  marriage ended in divorce and turned out to be one of Brooke’s few regrets in life. “Too young to marry, you’re not jelled yet”, she said looking back. So in 1932 Roberta Brooke Russell married her second husband, Charles H. Marshall the love of her life. Anthony too thought well of Charles H. Marshall, so much so that he changed his name from Anthony Dryden Kuser to Anthony D. Marshall.  Twenty years into the marriage, Charles H. Marshall died in the year 1952.

Just one year later, in 1953, knowing Brooke was a widow and had all the attributes suitable for twice divorced Vincent Astor,   Minnie the matchmaker set the stage for the third marriage for both Vincent Astor and Brooke Russell. It would in fact be the last marriage for both of them, as less than 6 years later Vincent Astor died of a heart attack in 1959 leaving Brooke as the last Mrs. Astor, and the beneficiary of the Astor fortune. Brooke Astor came upon riches that she had probably never dreamt of, and she too earned her fortune the old fashioned way – she married into it.

But the transference of wealth from Vincent’s estate to Brooke wasn’t without notable controversy. In fact, Vincent’s death set the stage for the first Astor will contest. When the Titanic was sinking, Madeline was ushered to safety in lifeboat #104.  Five months later she gave birth to John Jacob Astor V.  But Jack was never recognized as a real  Astor; he never inherited the Astor fortunes, and seemed a red-headed step child to the true Astor Aristocracy.  However, when Vincent died, Jack Astor sued, seeking to tap into Astor wealth.  His claim seeking to set aside Vincent Astor’s Last Will and Testament dated June 26, 1958 was interesting, and likely something Brooke Astor never forgot. An excerpt of the actual petition reads as follows:

The claim was odd in that, if a Will is set aside for any reason, than the prior valid Will governs and is admitted to probate. But Vincent’s prior Will reportedly didn’t name his half-brother as a beneficiary either.  In fact, Vincent didn’t care for his half brother, didn’t recognize him as an Astor, and shared in his characterization as Jack Ass-Tor. This was shaping up to be a real dis-Astor. So, before Brooke Astor was to inherit much of the vast Astor fortunes and control of the Vincent Astor Foundation, the undue influence claim and lack of capacity claim had to be resolved. Therefore, in light of its weak legal footing, the case was settled and John Jacob Astor, V was paid the sum of $250,000 in exchange for his dismissal of his claim. Given the fact that estate litigation cases can take years to resolve, and since the subject matter was that of Astor wealth and a potential cause célèbre for newspapers, settling the claim quickly and for a modest sum was prudent. Now acutely aware of the vast fortune she inherited and controlled, and knowing full well that a Will could be contested, Brooke Astor had to prepare an estate plan of her own, a plan that would reflect her intentions and honor the Astor legacy.  Note, Anthony D. Marshall was neither an Astor, nor an employee of an Astor enterprise, nor an intended beneficiary of his second step-father.

Thus, from 1959 to the year of her death in 2007, Brooke Russell Astor became one of New York’s most endeared charitable benefactors, dedicating her life to numerous causes including:  the New York Public Library, The Metropolitan Museum of Art, The Animal Medical Center, New York University, St. Mary & Saint Jude’s, Trinity Episcopal Church, the Central Park Conservancy, New York Zoological Society, Carnegie Hall, The Brooklyn Museum, The United Nations and The Marine Corps University Foundation to name just a few. Clearly, her cause, her legacy, her life’s work, was that of helping others, of giving back, of staying true to many Astor causes. She was an outstanding stewardess of Astor wealth. During her lifetime donated over $200,000,000 to charities in the Astor name and  there was still enough wealth to amply provide for her son from her first marriage, Anthony D. Marshall. Her good cheer, impeccable dress, big heart and charitable ways endeared her to the likes of Henry Kissinger, Oscar de la Renta and his wife Annette de la Renta,  David Rockefeller, and Nancy Reagan.

Longevity took its toll however, and in the last few years of her life, signs of senility, and more shockingly, signs of elder abuse hit the tabloids. The New York Daily News printed a front page article on July 26, 2006 entitled “Battle of New York Blue Bloods! Vicious court fight rocks the world of Manhattan’s one-time society queen”.  The staff writer Helen Peterson reported that Philip Marshall, Anthony Marshall’s son, stated, “My grandmother is one of the greatest philanthropists of all our time.  The sad and deplorable state of my family’s affairs has compelled me to bring this guardianship action”.  The legal action Philip commenced was to remove his father, Anthony Marshall, as agent under his grandmother’s power of attorney, and ask the Court to appoint a more caring guardian and financially neutral guardian of her wealth. Salacious – yes.  Front page news – yes.   Possible that Anthony Marshall would become villainized?  Yes! But it appeared Philip Marshall had one goal – to protect his grandmother at any, or anyone’s, expense.  Did Philip Marshall know how this would turn out?  Not by a long shot.

Brooke Astor was a legend, loved by all, and worth over $100,000,000 – even after giving away over $200,000,000 of Astor wealth to various charities. One would think that Philip’s proactive legal action to protect Brooke from her only son would make even the hairs on the back of this Iwo Jima veteran stand on end.  One would also think that Anthony Marshall would have vigorously defended his actions and that any attempt to sully his alleged blue blood pedigree would cause a battle royale – right? Anticipating this, Philip Marshall’s Petition and the supporting Affidavits had to be the truth, had to be compelling, and the concerns had to be shared by numerous independent parties.  Joining in on the Affidavits were members of Astor’s staff, who were as loyal to Brooke, as they were angered by Marshall’s unnecessary belt-tightening restrictions placed on his mother’s care. Henry Kissinger, David Rockefeller and Annette de la Renta, who were all very close to Brooke, supported Philip’s  application to the Court.  The Complaint, once filed, was to be heard in the New York Supreme Court before the Honorable John E.H. Stackhouse and the relief requested (legally speaking) was to remove Anthony Marshall as power of attorney over his mother’s affairs, as well as to appoint one of Brooke Astor’s best friends, Annette de la Renta, as guardian of her person, and JP Morgan Chase Bank as Guardian of her property.

The allegations contained in the numerous Affidavits were simply astounding:

  1. That Brooke Astor, 104-years-old, was supposed to be cared for by her son, even though “he refuses to spend money for her care.”
  2. That Anthony Marshall “cut back on everything from Brooke’s doctor visits to the brand of make-up she uses.”
  3. That he “wouldn’t give Astor a hospital bed fitted with rails, even though she had fallen from her bed.”
  4. That, on her 104th birthday, he “wouldn’t allow the nurses to buy his mother a new outfit.”
  5. Though Astor doted on her dogs, Boysie and Girlsie, she hadn’t seen them in six months, “because they were kept locked up in the pantry to keep from damaging the apartment.”
  6. That despite her numerous ailments, “her bedroom is so cold that she’s forced to sleep in the TV room in torn nightgowns on a couch that smells, probably from dog urine.”
  7. That Marshall denied a request for hair bonnets and non skid socks so “the nurses bought them themselves.”
  8. An enzyme supplement “to promote a healthy heart … which costs $60.00 per bottle, was stopped at the instruction of Charlene Marshall, Anthony’s wife. She then told the aids to buy the medicine off the internet, a diluted version which costs $26.00 for three bottles.”

The allegations went on and on, and the theme was consistent; that Anthony and his wife Charlene, were mismanaging the care that the last Mrs. Astor deserved.  Added to these allegations, were claims of self dealing and financial impropriety at a time when New York’s beloved Brooke Astor was weak and suffering from dementia. In the world of public opinion, Anthony and Charlene Marshall looked like villains, or at the very least, neglectful caretakers. But their worst days were ahead of them.

With little likelihood of success and potential exposure of financial transgressions on the front page of every tabloid, Anthony Marshall, with wife Charlene in tow, consented to the requested relief, and the Court acted accordingly. Anthony Marshall’s powers granted by his mother’s power of attorney were effectively terminated, and Annette de la Renta was appointed in his stead as Guardian of Brooke Astor and JP Morgan Chase, was appointed as Guardian of her property.  Subsequently, JP Morgan Chase sought to have their powers extended by the Court to allow for broader discovery, such that they could account for Anthony Marshall’s actions and possibly commence litigation against him if assets were inappropriately transferred to him. Indeed, reports that Marshall had looted and pilfered Astor wealth for his own benefit, and at the expense of Brooke Astor’s charities were leaking to the outside world. A cloud of impropriety shadowed a series of transactions which conferred riches from Brooke Astor to Anthony Marshall, both during her lifetime, and through a new set of Codicils to her Will – all during a period of time when her capacity was diminished. Chief amongst the alleged pilfering claims were:

  1. Marshall’s sale of Brooke’s prized Childe Hassam painting for $10,000,000 and his pocketing a $2,000,000 brokerage commission;
  2. a $5,000,000 taxable gift from Brooke to Anthony;
  3. a self adjusted pay raise of $2,380,000 for managing Brooke’s affairs – an amount five times his annual salary of $450,000;
  4. two checks each of $250,000 payable to Anthony Marshall’s theater production company;
  5. additional gifts of jewels, artwork and cash; and
  6. a deed transfer from Brooke to Anthony of the coveted Coves End property as well as monies to maintain the property.

But for the alleged gifts, these same assets may otherwise have been bequeathed to charities under Brooke’s Will. Though alarming and totaling as much as $18,000,000, the Court denied JP Morgan’s request for expanded powers finding instead that the powers granted to the Bank were temporary in nature and that the Executors of Brooke’s estate, as appointed by her Will or the Court could later prepare an accounting.  By doing so, the stage was set for a much anticipated Will contest. When Brooke Russell Astor died on August 13, 2007, it didn’t take long for the sparks to ignite.

Typically, a Will contest is filed by an heir who files a Complaint in the Surrogate’s Court of the county where the decedent resided. The Complaint may seek to set aside a Will for fraud, undue influence or lack of capacity. Typically, the Court must first appoint the Executor or Administrator of the estate until such time as a Court adjudicates the heir’s claims.  It was no different in the Estate of Brooke Astor. The Westchester County Surrogate’s Court had jurisdiction, and the Astor legacy may be distributed in accordance with her Will and three subsequent Codicils. Brooke Astor’s Last Will and Testament dated January 30, 2002 seemed well thought out and perfectly reasonable. Excerpts of her Last Will and Testament follow:

LAST WILL AND TESTAMENT OF BROOKE RUSSELL ASTOR

I, BROOKE RUSSELL ASTOR, a resident of Westchester County, New York, do make this Will, hereby revoking all ‘wills previously made by me.

FIRST:

I direct that my funeral service be held at St. Thomas Church in New York City, that I be interred in Sleepy Hollow Cemetery in North Tarrytown, New York, next to the grave of my late husband, Vincent Astor, and that a suitable memorial be erected by my Executors on the site of my grave. I ask that my gravestone be inscribed “I had a wonderful life.”

SECOND:  Partially omitted.

All taxes paid by my Executors under this Article shall be paid as administration expenses out of my residuary estate, except that any tax payable upon property passing under ,Articles THIRD, FOURTH and FIFTH hereof shall be equitably allocated to, and shall be payable by, my son, Anthony Marshall.

THIRD:

I devise all real property and all interests in real property situated in Westchester County, New York which I shall own at the time of my death to my son, ANTHONY MARSHALL, if he shall survive me. Subject to the provisions of Articles SIXTH and SEVENTH hereof, I bequeath to my son, if he shall survive ‘me, all furniture, household effects and furnishings (excluding any works of art), all books, and all household and garden equipment which I shall own at the time of my death and which. then shall be located on, or customarily used in connection with, such real property.

FOURTH:

I devise all real property and all interests in real property situated in the State of Maine which I shall own at the time of my death to my son, ANTHONY MARSHALL, if he shall survive me.  Subject to the provisions of Articles SIXTH and SEVENTH hereof, I bequeath to my son, if he shall survive me, all furniture, household effects and furnishings, all books and all household and garden equipment which I shall own at the time of my death and which then shall be located on, or customarily used in connection with, such real property.  My grandson, Philip Marshall, has visited me in Maine with his wife and children to our common pleasure. I hope that he will keep visiting his father there after my death, and that his father will leave him an interest in the Maine. property upon his death, if Philip still would like to own and use my home in Maine when that time comes.

FIFTH;

I bequeath to my son, ANTHONY MARSHALL, if he shall survive me, all interests which I shall own at the time of my death in my cooperative apartment located at 778 Park Avenue, New York, New York, including but without limitation all securities of any corporation owning the building in which such apartment is located and any lease or other agreement with such corporation covering such apartment. Subject to the provisions of Articles SIXTH and SEVENTH hereof, I bequeath to my son, if he shall survive me, all furniture, household effects and furnishings (excluding any works of art), all books, and all household equipment which I shall own at the time of my death and which then shall be located in, or customarily used in connection with such apartment.

SIXTH:

I bequeath to such of the following persons as shall survive me the articles set forth after their respective names, if I shall own the same at the time of my death.

(A) To each of my grandsons, ALEXANDER MARSHALL and PHILIP MARSHALL, and to each of my great-granddaughter, HILARY BROOKE MARSHALL (child of my grandson, Alexander Marshall), my great- grandson, WINSLOW MARSHALL (child of my grandson, Philip Marshall), and my. great-granddaughter, SOPHIE MARSHALL (child of my grandson, Philip Marshall), such one item of furniture or furnishings (of a value not to exceed Twenty-five thousand Dollars) which is not otherwise specifically bequeathed under this Will which shall be selected for her or him as a remembrance of me by my son, Anthony Marshall;

(B) To my son, ANTHONY MARSHALL, all my papers, correspondence, and manuscripts and the Marshall monogrammed silver;

(C) To THE NEW YORK PUBLIC LIBRARY, ASTOR, LENOX AND TILDEN FOUNDATIONS, of New York, New York, all of my books formerly belonging to any member of the Astor family and all of my books with the Marshall family bookplate which are in my apartment at 778 Park Avenue, New York, New York, to be housed together at said Library in a room in the names of James Lenox and John Jacob Astor, along with the portrait of my late husband, Vincent Astor, as a Captain in the United States Naval Reserve which I have already given to said Library to hang in such room as a gift from the descendants of John Jacob Astor and Charles Henry Marshall. I make this bequest subject to a life estate in my son, ANTHONY MARSHALL, should he wish to retain the books in his library for his lifetime;

(D) To my friend, LAURENCE S. ROCKEFELLER, my head of Hypnos, as a remembrance of our many years of friendship;

(E) To my friend, DAVID ROCKEFELLER, the stone Buddha head sculpture in the library of my apartment, as a remembrance of our many years of friendship;

(F) To my dear friend, ANNETTE ENGLEHARD DE LA RENTA, such four of my dog paintings from the staircase at Holly Hill as she may select by notice given to my Executors within three months after the date of my death, in fond remembrance of me;

(G) To my daughter-in-law, CHARLENE MARSHALL, my diamond snowflake necklace set with three hundred sixty-seven round diamonds, ‘as a token of my affection for her;

(H) To my friend, FREDERICK A. MELHADO, the pair of cachepots in my Blue Room, as a remembrance of me;

(I) To my friend and attorney, HENRY CHRISTENSEN III, the oil painting of an Englishman dressed as an Arab in the library of my apartment, together with its wooden stand, as a fond remembrance of me;

(J) I have recently spent very happy times with my great- grandchildren, Hilary Brooke Marshall and Winslow Marshall, the children of my. grandson, Philip Marshall. I plan to give each of them a personal item in remembrance of me, but if my son, Anthony Marshall, determines that I have not made such a gift to Hilary and Winslow prior to my death, I ask that my son set aside an appropriate picture or piece of jewelry, in neither case having a value greater than Ten thousand Dollars, as a personal remembrance of me. This is in addition to the gift they shall receive under Part (A) hereof, as a special thank you from ma for the pleasure they have brought to me; and

(K) I have discussed with my son, Anthony Marshall, gifts of I individual items of my personal property to certain family members and friends, and he knows what I would like to do. I ask that he make these gifts in my name, as fond remembrances of me.

SEVENTH:

(A) I bequeath the two large English silver candelabra, the large French silver tureen, all china marked “WA,” all Astor table silver, the cafe and finger bowls marked with the Astor crest, the red-wine glasses in red glass marked “WA,” the set of gold Bohemian glasses marked with the Astor crest, and the dessert forks and knives in gold marked with the Astor crest, in each case if I shall own the same at the time of my death, to my. friend, WILLIAM WALDORF ASTOR, 4th Viscount Astor, of Ginge Manor, near Wantage, Oxon, England 0X12 8QT, or, if he shall not survive me, to his issue surviving me, per stirpes; provided, however, that any person receiving property under this Part shall pay all expenses of storage, shipping and insurance in connection with such property and its delivery. If neither William Waldorf Astor nor any issue of his shall accept this bequest upon the terms hereof, I direct that all such items be sold and that the net proceeds thereof be added to my general estate.

(B) I bequeath the portrait of the Astor family in the drawing room of the Astor House painted in 1886 by Grossi, now located in the living room of my apartment, and the portrait of General Armstrong by Vanderlyn, now located in my home at Holly Hill, in each case if I shall own the same at the time of my death, to THE NEW YORK PUBLIC LIBRARY, ASTOR, LENOX AND TILDEN FOUNDATIONS, of New York, New York; provided, however, that said Library shall agree within three months after the date of my death, in form satisfactory to my Executors, to hang such paintings at said Library in the Lenox and Astor room described in Part (C) of Article SIXTH hereof, and not to store such paintings or to deaccession them. (Balance of paragraph omitted)

(C)   (i) I direct that all jewelry not otherwise. disposed of under this Will which I shall own at the time of my death and having a value of more than One thousand Dollars per item be sold by my Executors, and that the net proceeds thereof be distributed to such charitable organization or organizations, bequests to which shall be deductible for Federal estate tax purposes, and on such terms, as my Executors shall determine within two years after the date of my death, to assist education and teachers in New York City.

(ii) I bequeath such items of jewelry not otherwise disposed of under this Will which I shall own at the time of my death and having a value of no more than One thousand Dollars per item as my Executors shall select in their discretion to such of my family, friends and employees as my Executors shall select in their discretion, having reference to any list I may leave for them.

(D) Subject to my gift under Part (F) of Article SIXTH hereof to my friend, Annette Englebard de la Renta, I direct that all pictures of dogs which I shall own at the time of my death be sold by my Executors, and that the net proceeds thereof be distributed to THE ANIMAL MEDICAL CENTER, of New York, New York, for its general purposes, with the request that they install a suitable plaque in memory of my many pet dachshunds.

(E) I bequeath the drawing of donkeys by Giovanni Battista Tiepolo which is in the drawing room of my apartment at 778 Park Avenue, New York, New York, my gouache of Carroll Spence, and my several sculptures of animals by Haseltine, in each case if I shall own the same at the time of my death, to my son, ANTHONY MARSHALL, if he shall survive me.

(F)I bequeath all of the drawings not otherwise disposed of under this Will• which I shall own at the time of my death to such organization or organizations, bequests to which shall be deductible for Federal estate tax purposes, as my Executors shall select in their discretion, upon such terms as they may establish. It is my preference that such drawings pass to The Metropolitan Museum of Art or The Pierpont Morgan Library, but I leave this decision to my Executors, asking that they obtain assurance satisfactory to them that any part of such drawings passing to a single institution be permanently maintained and displayed as coming from my collection (to be hung together, with other appropriate drawings in such institution’s collection, and not in a separate room containing only my collection).

(G)(i) I bequeath my good mink coat and my chinchilla short coat, in each case if I shall own the same at the time of my death, to my daughter-in-law, CHARLENE MARSHALL, if she shall survive me and shall wish to have the same.

(ii) Subject to the provisions of subdivision (i) of this Part (G), I bequeath such of the clothing, including furs, as I shall own at the time of my death as my Executors shall select in their discretion to such of my family, friends and employees as my Executors shall select in their discretion, having reference to any list I may leave for them

(H) I bequeath all jewelry, clothing and furs not otherwise disposed of under this Will which I shall own at the time of my death to such charitable organization or organizations, bequests to which shall be deductible for Federal estate tax purposes, as my Executors shall select in their discretion.

EIGHTH:

(A) I direct that all paintings and works of art not otherwise disposed of under this Will which I shall own at the time of my death be sold by my Executors, and that the net proceeds thereof be added to my general estate.

(B) I bequeath all tangible personal property of any nature (other than stocks, bonds, cash, bank accounts or other evidences of investments) not otherwise disposed of under this Will which I shall own at the time of my death to my son, ANTHONY MARSHALL, if he shall survive me

NINTH:

In the event of any question as to which items of tangible personal property pass under any particular bequests or dispositions of tangible personalty under any of the foregoing provisions of this Will, I direct that the decision of my Executor other than my son, Anthony Marshall, shall be final and binding.

TENTH: (A) I make the following bequests, in each case if the individual shall survive me:

To my son, ANTHONY MARSHALL, the sum of Five million Dollars, with my thanks for his devoted work in managing my financial affairs, and I direct that such sum be paid as soon as possible after my death in cash, or if my son shall request, in such works of art not bequeathed under this Will as he shall select at their value as finally determined for Federal estate tax purposes; and

(ii)To each of my grandsons, PHILIP MARSHALL ALEXANDER MARSHALL, the sum of One million Dollars

(iii)To my son, ANTHONY MARSHALL, the sum of Three hundred thousand Dollars. I request, but do not direct, that my son use such sum over time to assist in meeting the educational expenses of my great- grandchildren, HILARY BROOKE MARSHALL, WINSLOW MARSHALL and SOPHIE MARSHALL.

(B) I bequeath to each of CHRISTOPHER ELY. and STEVE HAMMER who shall survive me and shall be employed by me at the time of my death the sum of Fifty thousand Dollars, in each case in gratitude for his years o devoted service to me.

I have made arrangements for my other long-time employees whose employment will end with my death

ELEVENTH:

Under Article SIXTH of the last will and testament of my late husband, Vincent Astor, which was admitted to probate in the Surrogate’s Court of Dutchess County, New York, I was given a general testamentary power of appointment. I hereby elect to exercise said power and direct that the property subject to said power shall be paid over and distributed as follows:

(A) I direct that the trustees of the trust under Article SIXTH of the last will and testament of my late husband pay to my Executors, or directly to the appropriate payee, such amount or amounts as may be necessary to pay all of my debts, reasonable funeral expenses and expenses of my last illness, and all expenses, fees and commissions incurred in the administration of my estate in the United States of America, but I direct that all estate, inheritance or similar taxes of my estate shall be paid as provided in Article SECOND hereof, and not from the trust under my late husband’s will. I direct that said trustees shall be authorized to rely absolutely upon certificates from my Executors as to such amounts of debts, expenses, fees and commissions. The ‘balance of the property subject to said power shall be paid over and distributed to the following organizations, provided in all instances that the organization is a charitable organization as hereinafter defined, as follows:

(B) The sum of Two million Dollars to NEW YORK UNIVERSITY, of New York, New York, to establish an endowment fund, the income of which is to be used for the purposes of its School of Education to endow an Astor Fellows program generally in accordance with the plan I have discussed with .them, the details to be confirmed with my Executors. This program is intended to provide foreign travel opportunities for a selected group of outstanding New York City public school teachers each year, who would be nominated by their schools, students or parents of their students and selected and honored each year, as Astor Fellows, by a panel whose members are named by the School of Education, but include one member named by the Mayor of the City of New York, if the Mayor chooses to name a member. While the foreign travel would generally provide learning opportunities to the Fellows related to their teaching specialties, and while the School of Education may also offer career enhancement courses or seminars to the Fellows, it is my earnest wish that the Fellows, and their spouses, enjoy their travel abroad as a personal reward for their outstanding efforts on behalf of New York City’s children.

I made a pledge to New York University on April 17, 1972, for the purposes of the Institute of Fine Arts. I am advised that pledge is not enforceable, and I do not intend to fulfill it. Nevertheless, my gift to New York University hereunder, for the purposes of its School of Education, is conditioned upon my Executors receiving from the Institute of Fine Arts within six months after the date of my death a release of any claim to my April 17, 1972 pledge, in form satisfactory to my Executors;

(C) The sum of One hundred thousand Dollars to THE ISLAND FOUNDATION, to be added to the permanent endowment of its ASTICOU AZALEA GARDEN, in Northeast Harbor, Maine, so that its income may be used to support the garden and allow it to provide Pleasure and solitude for visitors well into the future.  I make this gift in honor of my friend, David Rockefeller;

(D)The sum of Fifty thousand Dollars to the NORTHEAST HARBOR LIBRARY, of Northeast Harbor, Maine, for its general purposes;

(E) The sum of Twenty-five thousand Dollars to ST. MARY’s & ST. JUDE’s, of Northeast Harbor, Maine, for its general purposes;

(F)The sum of Ten thousand Dollars to TRINITY’ EPISCOPAL CHURCH, of Ossining, New York, for its general purposes

(G)The balance of said property, plus any amount under the foregoing Parts (B) through (F) of this Article which shall lapse or fail for any reason, shall be paid over and distributed as follows:

(1) Twenty-five percent thereof to THE NEW YORK PUBLIC LIBRARY, ASTOR, LENOX AND TILDEN FOUNDATIONS, of New York, New York, to create and maintain in perpetuity the room in the names of James Lenox and John Jacob Astor described in Part (C) of Article SIXTH hereof, and, to the extent such amount shall not so be used, for the use of its research library and branch libraries, such use to be determined in consultation with my son, Anthony Marshall;

(2)Twenty-five percent thereof to THE METROPOLITAN MUSEUM OF ART, of New York, New York, to establish an endowment fund, the income of which is to be used to provide additional compensation and financial support to curators and their families, Particularly in the Asian Department, in. consultation with my son, Anthony Marshall, or, to the extent my son shall approve, for other purposes of said Museum–

(3) Eleven percent thereof to such charitable organization or organizations as my Executors shall select in their discretion for the purpose of establishing a permanent endowment fund to assist New York City public school teachers by providing funds to identify and reward outstanding teachers. I grant full authority to my Executors to determine the terms and conditions upon which such endowment shall be established and to select such projects in support of New York City public school teachers as they may deem necessary or appropriate, in consultation with the recipient charitable organization or organizations. I suggest, but do not direct, that my Executors choose to supplement the bequest under Part (B) of this Article or, if they are not satisfied with that purpose, that they establish a separate trust fund for this purpose in my name under the New York Community Trust;

(4)Seven percent thereof to THE ROCKEFELLER UNIVERSITY, of New York, New York, for its general purposes;

(5) Six percent thereof to such charitable organization or organizations as my Executors may determine (including but not limited to , the CENTRAL PARK CONSERVANCY and the PROSPECT PARK ALLIANCE), for the long-term sustenance and enrichment of Central Park and Prospect Park, two of New York City’s great treasures, through endowment or otherwise;

(6) Five percent -thereof- to-NEW-YORK-ZOOLOGICAL SOCIETY, of New York, New York, for its education programs for the children of New York City, as may be determined, in consultation with my son, Anthony Marshall;

(7)Four percent thereof to THE PIERPONT MORGAN LIBRARY, of New York, New York, for its general purposes;

(8) Three percent thereof to THE NEW YORK PUBLIC LIBRARY, ASTOR, LENOX AND TILDEN FOUNDATIONS to establish an endowment fund, the income of which is to be used to develop reading and literacy programs for disadvantaged children in New York City;

(9)Three percent thereof to such charitable organization or organizations as my Executors shall select in their discretion for the purpose of designing and building innovative and attractive playgrounds for children in New York City, either by direct grant to build the same or by the establishment of endowment funds for this purpose at appropriate charitable organizations;

 

(10)Two percent thereof to CARNEGIE HALL CORPORATION, of New York, New York, for its general purposes, in honor of my late and honored friend, Isaac Stern;

(11)Two percent thereof to THE BROOKLYN MUSEUM, of Brooklyn, New York, to establish an endowment fund, the income of which is to be used to fund a curatorship in Asian or American art, provide funding for Asian and American exhibitions, or otherwise as may be determined, in consultation with my Executors;

(12) Two percent thereof to MARINE CORPS UNIVERSITY FOUNDATION, of Quantico, Virginia, to establish an endowed chair in memory of my father, who was the Marine Corps Commandant, for such purposes as may be determined by my son, Anthony Marshall, who also served with distinction in the Marine Corps, and whom I wish to honor by this gift;

(13) One percent thereof to HISTORIC HUDSON VALLEY, of Tarrytown, New York, for its general purposes;

(14) One percent thereof to UNITED NATIONS, of New York, New York, to fund such of its activities as may be chosen by the Secretary General, Kofi Annan, or his ‘successor, in recognition of the cultural richness which the United Nations brings to New York City;

(15) One percent thereof to SOCIETY OF NEW YORK HOSPITAL, of New York, New York, to be used for such purpose or purposes at the New York Hospital facility of New York- Presbyterian Hospital as Dr. R.A. Rees Pritchett may select, with my thanks to Dr. Pritchett for his many years of devoted care for me.

(16) One percent thereof to COLLEGE OF THE ATLANTIC, of Bar Harbor, Maine, to establish an endowment fund, the income of which is to be used to assist needy students from the State of Maine. I make this gift in honor of my daughter- in-law, Charlene Marshall; and

(17) One percent thereof to such charitable organization or organizations, bequests to which shall be deductible for Federal estate tax purposes, as my Executors shall select for the purpose of assisting high school programs which will best prepare the children of Northeast Harbor, Maine for productive careers. I suggest, but do not direct, that my Executors establish a separate trust fund for – such-purposes in my name with the Maine Community Foundation, Inc.

TWELFTH;

All of the residue of my estate of every kind an  description (including lapsed legacies and devises) I devise and bequeath to my Trustees, to hold upon a separate trust. My Trustees shall manage, invest and reinvest the same and collect the income thereof, and in each taxable year of the trust during the life of my son, ANTHONY MARSHALL, my Trustees shall pay to him a unitrust amount equal to seven percent of the net fair market value of the assets of the trust valued as of the first day of each taxable year of the trust (hereinafter referred to as the “valuation date”). (Balance of paragraph omitted).

 

Upon the death of my son, my Trustees shall pay over and distribute the principal of the trust, as then constituted, together with any remaining net income not required for payment of the final year’s unitrust amount (or if my son shall not survive me, I devise and bequeath my residuary estate), to such charitable organization or organizations, and in such shares, as shall have been designated by my son, by written instrument delivered from time to time to my Trustees (with power in my son to revoke and replace any designation by later written instrument delivered to my Trustees), or to the extent my son shill not have designated ultimate beneficiaries, to such charitable organization or organizations and in such shares as my Trustees (or my Executors) in their discretion shall designate, having reference to (but not being bound in any way by) gifts I have made under Article ELEVENTH hereof, and in any event to have a primary purpose of improving education in New York City. (Balance of Paragraph omitted.)

 

THIRTEENTH:

The term “charitable organization” as used in this Will shall mean only a corporation or trust, or other entity, bequests to which are deductible under the Federal estate tax law at the date of my death or at the • date of death of the income beneficiary of the trust hereunder, whichever is applicable.

FOURTEENTH: Omitted

FIFTEENTH:  Omitted

SIXTEENTH: Omitted

SEVENTEENTH: Omitted

EIGHTEENTH: Omitted

NINETEENTH:

I appoint my son, ANTHONY MARSHALL, and my friend and attorney, HENRY CHRISTENSEN II, of 125 Broad Street, New York, New York, Executors of and Trustees under this Will. I authorize my Executors to designate a bank or trust company to act as co-Executor or co-Trustee, but only upon such terms as my Executors in their sole discretion shall determine. I further authorize my Executors in their discretion to remove any bank or trust company acting as a co-Executor or co- Trustee and to replace such co-Executor or co-Trustee with another bank or trust company.

I direct that my son shall have no substitute or successor as an Executor or Trustee.

In the event that Henry Christensen II or any successor to him appointed as hereinafter provided shall fail to qualify or for arty reason shall cease to act as an Executor or a Trustee, I appoint as his substitute or successor such individual (who may be one of its own partners) as shall be designated by the firm of Sullivan & Cromwell, of New York, New York (or any -firm successor thereto), by written instrument, duly acknowledged. Any designation so made may be revoked by such firm at any time prior to the happening of the event upon which it is to become effective, by a written instrument, duly  acknowledged, and a new designation may be made as above provided.

TWENTIETH:

If any person or entity named as a beneficiary under this Will shall contest or rite objections to the admission to probate of this Will, or shall object to the exercise of the discretion granted my Executor other than my son, Anthony Marshall, pursuant to the provisions of Article NINTH hereof, all provisions herein made for any such person or entity shall lapse in the same manner as if such person or entity had not survived me or ceased to exist, and I devise and bequeath the property which would have passed to such person or entity had he, she or it not contested or filed objections to the admission to probate of this Will or not objected to the exercise of the discretion granted my said Executor to the person or entity which would have taken such property had such contesting or objecting person or entity not survived me or ceased to exist.

TWENTY-FIRST: Omitted

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 30th day of January, two thousand two.

SIGNED, SEALED, PUBLISHED and DECLARED by the above-named Testatrix, BROOKE RUSSELL ASTOR, as and for  her Last Will and Testament, in the sight and presence of us, who, at her request and in her sight and presence

and in the sight and presence of each other, having hereunto signed our names as subscribing witnesses this 30th day of January, 2002.

Dated: January 30th, 2002

__________________________

BROOKE RUSSELL ASTOR

TESTATRIX

This detailed tax efficient Will was amended by a Codicil entitled “First and Final Codicil dated December 18, 2003”. This final Codicil, which turned out to be anything but final,  was the first of three Codicils hacking away at the charities interests and empowering one Anthony Marshall to govern over the Astor fortunes – almost half of which  according to this Codicil, were to be renamed “the Anthony Marshall Fund”.  To track the changes from Brooke Astor’s Will, excerpts of the first Codicil follow with comments highlighting the changes.

FIRST CODICIL OF BROOKE RUSSELL ASTOR

I, BROOKE RUSSELL ASTOR, a resident of Westchester   County, New York, do make, publish and declare this to be a First and Final Codicil to my Last Will and Testament dated January 30, 2002.

FIRST:

After much thought and discussion with my son, Anthony Marshall, I have decided to change the manner in which I appoint by my Last Will and Testament the assets of the trust which my late husband, Vincent Astor, established for my life benefit. I have always appointed the assets of that trust for the most part to charity, and I wish to continue to do so, but I have decided to do for my son, Anthony Marshall, what my late husband did for me in leaving me the control of the Vincent Astor Foundation, which is to allow my son the ability to devote himself to charitable activities for the balance of his life with assets I am setting aside for him. I have enjoyed greatly the ability to help New Yorkers through Vincent’s generosity throughout my long life, and I hope my son will obtain similar enjoyment and satisfaction, and find new ways to benefit the public, through his stewardship of the Fund I am going to establish for his use as Trustee.

SECOND:

In order to accomplish this end, I hereby amend my exercise of my general power of appointment under Article SIXTH of the last will and testament of my late husband, Vincent Astor, which was admitted to probate in the Surrogate’s Court of Dutchess County, New York. I hereby amend the provisions of Article ELEVENTH (G)of my said Will, by which I direct the Trustees under Article SIXTH of the last will and testament of my late husband to pay over and distribute the balance of the trust assets, as follows:

(A)I reduce the percentages disposed of under subparts (1) and (2) of Part (G) from twenty-five percent to eight percent in each case.

Authors Note:  Two more irons in the fire. First, The New York Public Library was historically a meaningful cause and recipient of Astor wealth. Buried in the legalese of this Codicil is a huge reduction of the New York Public Libraries  Astor, Lennox and Tilden Foundation from 25% to 8%.  Another cause, historically near and dear to the Astor’s was The Metropolitan Museum of Art. Their interest was also reduced from 25% to 8%.  Second, these percentages relate to powers that Brooke was granted by Vincent Astor’s Will which gave her the authority to appoint the fortunes that Vincent Astor had inherited,  as she deemed appropriate. One paragraph, and Astor wealth is transformed into Marshall power.

While I remain devoted to The New York Public Library and to The Metropolitan Museum of Art, I have dedicated a substantial part of my time, and of the assets of The Vincent Astor Foundation, to both organizations during my lifetime, and I therefore feel comfortable in reallocating these funds to establish the core of The Anthony Marshall Fund.  Similarly, but to lesser degree, I reduce the percentage disposed of under subpart (3) of Part (G) from eleven percent to five percent,

Authors Note: This reduction came at the expense of New York City school teachers. Brooke Astor intended to provide an endowment for outstanding teachers when she executed her Will, but if you believe this Codicil actually reflected her intentions, then you’d believe she intended to reduce a gift to outstanding New York City school teachers funds 11% to 5%, so that Astor wealth could be re-characterized as “The Anthony Marshall Fund”.

the percentage disposed of under subpart (4) from seven percent to four percent, the percentage disposed of under subpart (5) from six percent to four percent,

Authors Note:  This hit came at the expense of The Central Park Conservancy … … so that Astor wealth could be re-characterized as “The Anthony Marshall Fund.”.

and the percentage disposed of under subpart (6) from five percent to three percent.

Authors Note: Next, the axe fell on funds for the benefit of The New York Zoological Society which would have provided education to children, so that Astor wealth could be re-characterized as “The Anthony Marshall Fund.”.

Finally, I revoke entirely the provisions of subpart (12) of Part (G) as I am confident my son will provide generously for the Marine Corps University Foundation.

Authors Note: Funds intended to pass to the Marine Corps University Foundation to honor Brooke Astor’s father, were eliminated … so that, once again  Astor wealth could be re-characterized as “The Anthony Marshall Fund.”.

The aggregate of these reductions is forty-nine percent, so that fifty-one percent of the “balance” of my late husband’s trust will continue to be distributed to the charities I have named in my Will.

(B)I add the following as a new subpart (12), replacing that which I have revoked in the preceding clause:

(12) Forty-nine percent thereof to my son, Anthony Marshall, to be held upon the terms hereof, in a charitable trust to be known as THE ANTHONY MARSHALL FUND. This trust shall be a private foundation under the terms of the Internal Revenue Code, to be held, administered and disposed of solely for charitable  purposes, and all of the provisions of section 8-1.8 of the Estates, Powers and Trusts Law shall be incorporated by reference. My Trustee shall comply with all applicable provisions of the Internal Revenue Code in establishing and administering this trust.

Grants from The Anthony Marshall Fund shall be made to such charitable organizations as my Trustee may determine in his sole discretion, without regard to geographic restrictions, with emphasis in the fields of art, medicine, science, religion, education and the environment. I direct that my son, Anthony Marshall, shall be the sole Trustee of this trust, and that he shall have no successor as Trustee, but rather that The Anthony Marshall Fund shall terminate upon my sons death. If there shall be any principal assets remaining in this trust as of the date of its termination, or any income thereof then held or accrued, which my son shall not have disposed of or directed the disposition of to charity by instruments signed during his lifetime or by his last will and testament, I direct that the same be paid over and distributed in equal shares to The New York Public Library, Astor, Lenox and Tilden Foundations and to The Metropolitan Museum of Art, for their respective general purposes, as long as they shall still be charitable organizations at the date of termination of The Anthony Marshall Fund. My son shall not be entitled to compensation for his services as Trustee of this trust, which shall be governed by New York law.

THIRD:

I hereby ratify and confirm my said Will except insofar as my Will thereof is affected by this Codicil.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 18th day of December two thousand three.

SIGNED, SEALED, PUBLISHED and DECLARED by the above-named Testatrix, BROOKE RUSSELL ASTOR, as and for a First Codicil to her Last Will and Testament, in the sight and presence of us, who, at her request and in her sight and presence and in the sight and presence of each other, having hereunto signed our names as subscribing witnesses this 18th day of December, 2003.

__________________________

BROOKE RUSSELL ASTOR

TESTATRIX

Evidently someone failed to warn Marshall of the dangers of playing with fire. Why was the first Codicil called, a Final Codicil? Did the scrivener intend to imply that thereafter Brooke Astor would lack capacity? Or perhaps to throw cold water on any attempt to make further changes. As if the First and Final Codicil didn’t provide Anthony Marshall with enough money and power, the Second Codicil dated January 12, 2004 would surely finish the job. Less than a month after the First and Final Codicil was signed, the Second Codicil was signed which would later prove to be a ticking time bomb.

This alleged Second Codicil dated January 12, 2004  completely changed the how the balance of Brooke Astor’s estate was to be distributed. After the payment of taxes, expenses incurred in administering her estate and the payment of bequests, the balance of her estate, which was over $100,000,000, was supposed to fund a charitable remainder trust. This trust, called a charitable remainder trust, was to provide Anthony Marshall with 7% of the fair market value of the trust every year for the rest of his life. After his death, the balance in the trust would be distributed to charities. Anthony Marshall could have been a beneficiary of this charitable trust for the rest of his life.  No money worries – set for life.  After his death, the Astor wealth would pass to charities. But this Second Codicil cut out the charitable trust entirely and left Astor wealth, five generations in the making – to Anthony Marshall. If you were one of the charities who enjoyed a relationship with Brooke Astor, and was a donee of the Astor largess, you’d have a hard time believing  that this Second Codicil reflected Brooke Astor’s intentions.

But the Second Codicil also cut out Henry Christensen, III, Esq., who was Brooke Astor’s estate planning attorney and also removed Christensen as Co-Executor and Co-Trustee. This Second Codicil wasn’t authored by Henry Christensen III, Esq., but instead, a new attorney presumably hired on behalf of Brooke Astor by Anthony Marshall.  But Anthony Marshall couldn’t leave well enough alone. Another moth drawn to the fire. Two months later, when Brooke Astor was 102-years-old, the Third Codicil was signed and follows in it’s entirety, with Brooke Astor’s “signature”.

What’s the purpose of this Codicil? Some believe it was to burden the estate, rather than Anthony Marshall with the costs incurred in selling Astor properties. Perhaps this is so, but this sloppy, poorly drafted Codicil may have had a more manipulative purpose. By way of background, if a Will is ever contested, the contestant has the burden to prove that the document offered for probate was the product of undue influence, fraud or lack of capacity – at the time the document was signed. Since Brooke Astor’s health and the facts and circumstances around the signing of her Will and each of the three Codicils were different, a contesting party would be burdened first with challenging Codicil #3.  It may take years to overturn just the Third Codicil. But even if a moving party, in all likelihood a charity,  did win, only Codicil # 3  would be treated as a nullity, and the prior Will, Codicil #1 and Codicil #2 would still be in effect.  Accordingly, it may be that Anthony Marshall knew the Codicils #1 and #2 would be challenged once his mother died, and so as to protect the prospective inheritance of Astor riches, if another Codicil were to be signed, than any charity who contested the Will and Codicils, would have to first sue and set aside Codicil #3, in effect he would build a moat around the Will and Codicils #1 and #2.

But all the supposed gifts, and all the supposed Codicils, all the plotting were about to combust and one Anthony Marshall was about to feel the heat. On August 13, 2007 Brooke Astor died. But before the Westchester County Surrogates Office was able to adjudicate the authenticity of the Will, and Codicils #1, #2, and #3,  the sirens went off as it was announced that justice over Anthony Marshall’s actions, and his alleged pilfering of the Astor fortunes would start not in the Surrogate’s Court, but with the District Attorney’s Office.

Anthony Marshall, and the estate planning attorney he hired on his mother’s behalf, Francis X. Morrissey, Esq., were quickly named in a eighteen count criminal indictment. Collectively, they were charged with numerous counts of larceny, possession of stolen property, falsifying business records, forgery, conspiracy and a scheme to defraud Brooke Astor, and by extension, the Astor fortunes, all for his own benefit.  During a five month trial, in People of the State of New York v. Anthony D. Marshall and Francis X. Morrissey, Esq., the following testimony all but sealed the over-reaching duo’s fate:

  1. That Brooke Astor’s long time estate planning attorney, Henry Christensen, III, Esq., drafted and supervised the execution of a Last Will and Testament dated January 30, 2002, which provided amply for her son, Anthony Marshall, her friends, and her favorite charities. Under this Will, Marshall was to receive:
  2. a) Brooke’s real estate in Maine
  3. b) her real estate in Westchester,
  4. c) her Park Avenue co-op,
  5. d) the sum of $5,000,000,
  6. e) artwork and personnel effects, and
  7. f) he was to benefit from a Charitable Remainder Trust which provided Marshall with a guaranteed 7% payout for his lifetime, and the balance at his death to Brooke’s favorite charities.
  8. That Christensen then supervised the execution of the First and Final Codicil dated December 18, 2003, which provided that 49% of Vincent Astor’s wealth held for the benefit of charities, would be re-directed to seed the Anthony Marshall Fund, which provided him with sole power as to donate monies to charities of his choosing during his lifetime. Such a change would give the appearance that Anthony Marshall was a philanthropic donor.
  9. That Anthony Marshall, apparently displeased with even this outcome, fired Christensen, and hired a new attorney Francis X. Morrissey, Esq., to revise his mother’s estate plan  when she was apparently already suffering from dementia.
  10. That Morrissey caused a Second Codicil to be executed on January 12, 2004 which eliminated the Charitable Remainder Trust, thus terminating the charities remainder interest and leaving Astor fortunes outright to Anthony Marshall. The Codicil also appointed him as sole Executor and Trustee.
  11. As if that wasn’t enough, Morrissey prepared and allegedly caused the signing of yet another document, a Third Codicil on March 3, 2004, directing that properties be sold such that Anthony Marshall would get more cash as expenses of properties already “gifted” to Marshall would be borne by the Estate.
  12. That Brooke Astor was frail and confused when Marshall and Morrissey all but dragged into her library to execute the Second Codicil. That, after signing the documents, Brooke Astor asked Pearline Noble, her home healthcare provider, “What happened? Who are those men”?
  13. That in March of 2004, Noble further testified, the heiress “couldn’t recognize even her closet family and friends”.
  14. Dr. Norman Relkin, Brooke Astor’s neurologist, also testified that, during the time period the Codicils were signed, “I would be willing to state – she was suffering from dementia”.

After months and months of testimony from, friends, doctors, health care workers, and attorneys, the Court had heard from everyone … except Anthony Marshall, who refused to testify. The Court’s ruling was predictable; Marshall and his cohort, Morrissey, were convicted of numerous charges, summarized by the tabloids as follows:

SCHEME TO DEFRAUD —

Charged Anthony Marshall and cohort Francis Morrissey schemed together to cheat charities and Brooke Astor out of more than $60 million. Their schemes included strong-arming Astor into selling her favorite painting and twice changing her Will, even though her dementia rendered the 101-year-old philanthropist incompetent to do so.

Marshall: GUILTY

Morrissey: GUILTY

OFFERING A FALSE INSTRUMENT FOR FILING IN THE FIRST DEGREE –

Charged Marshall intentionally lied on a document in the Brooke Astor guardianship case by claiming he’d only pocketed $3.4 million out of a $5 million “gift” that supposedly Astor gave him at age 101.

Marshall: GUILTY

SECOND DEGREE GRAND LARCENY –

Charged Marshall continued using of his mother’s money, over $600,000 to pay expenses at her former summer home in Maine, even though Marshall had already talked his mother into giving him the property, and then had quietly transferred the Deed into his wife Charlene’s name.

Marshall: GUILTY

SECOND DEGREE GRAND LARCENY –

Charged Marshall stole a drawing, “Dancing Dogs with Musicians and Bystanders,” by Giovanni Domenico Tiepolo, worth more than a quarter-million dollars, from his mother’s Park Avenue apartment when she was 102, and no longer had capacity to consent to such a  gift. Marshall: GUILTY

CRIMINAL POSSESSION OF STOLEN PROPERTY –

Charged Marshall with possessing the Tiepolo.

Marshall: GUILTY

SECOND DEGREE GRAND LARCENY –

Charged Marshall stole $71,319.84 in payroll funds from his mother by using her social security funds to fund his theater production company.

Marshall: GUILTY

CONSPIRACY IN THE FOURTH DEGREE –

Charged Marshall and Morrissey conspired together to steal $60 million Astor had long promised to charity by strong-arming the 101-year-old woman into signing a codicil to her will when she was no longer competent to do so.

Marshall: GUILTY

Morrissey: GUILTY

CONSPIRACY IN THE FIFTH DEGREE –

Charged Marshall and Morrissey conspired together to offer into probate the $60 million will amendment.

Marshall: GUILTY

Morrissey: GUILTY

CONSPIRACY IN THE FOURTH DEGREE –

Charged Marshall and Morrissey conspired together to strong-arm an incompetent Astor into signing the third codicil to her will, this one directing that her properties be sold upon her death, resulting in millions in executor and legal fees for Morrissey and the Marshalls.

Marshall: GUILTY

Morrissey: GUILTY

SECOND DEGREE FORGERY –

Charged Morrissey forged Astor’s signature on the Third Codicil

Morrissey: GUILTY

FIRST DEGREE GRAND LARCENY –

Charges Marshall used his power of attorney to give himself a $1.4 million pay raise for managing Astor’s finances, at a time when the his 103-year-old mother lacked capacity.

Marshall: GUILTY

SECOND DEGREE GRAND LARCENY –

Charges Marshall used his mother’s funds to pay the $52,500 salary of his yacht captain — having bought the yacht by using the funds from the power of attorney.

Marshall: GUILTY

SECOND DEGREE GRAND LARCENY –

Charged Marshall stole a drawing, “Bedouin and Two Camels,” by John Frederick Lewis, worth more than a quarter-million dollars, from his mother’s Park Avenue apartment when she was 104, and had lost the ability to consent to his taking it.

Marshall: GUILTY”

On December 21, 2009, Judge Bartley, before sentencing 85-year-old Anthony Marshall to prison for a term of 1-3 years, said, “It is a paradox to me that such abundance has led to such incredible sadness”. Astor abundance, five generations in the making, was earned and preserved for generations of Astor descendents and charities. Anthony Marshall was not born into the bloodline, and, but for his mother’s marriage to her third husband,  would have never enjoyed being part of such aristocracy and influence.  While his mother was strong and of sound mind, he could never have orchestrated such a fraud, but her dementia and fragility, opened the door to his greed and a sense of entitlement that caused him to cast aside his mother’s last wishes –  for his own.

Anthony Marshall’s public humiliation is far from over. He has appealed his criminal conviction, and meanwhile the probate litigation in the Westchester County Surrogate’s Court is quickly heating up. The Court issued temporary letters of administration to  JP Morgan Chase Bank, N.A. and Howard A. Levine as Co-Temporary Administrators of Brooke Astor’s estate in November of 2007. They will jointly serve in such capacity until the Surrogate can decide which Will and Codicils are to govern.

Annette de la Renta, a legatee under the Will, filed the following  Affidavit on September 11, 2007 claiming the 2002 Last Will and Testament, together with Codicils, #1, #2, and #3 are all the product of fraud and or undue influence, and as such should be set aside and not admitted to probate. She takes the position that a 1997 Will and Codicil should govern the distribution of Brooke Astor’s estate instead.

For the Court to decide which Will, and which Codicils, are to be admitted to probate, the lawyers must complete discovery. On November 5, 2010 the Court signed the following Discovery Order:

Years of litigation will ensue. Charities and loved ones have to fight over the distribution of Astor wealth. And, worse yet, the proud and generous Astor legacy has been overshadowed and overwhelmed by headlines of misdeeds and greed. Instead of reading about the Astor legacy and attending to Brooke Astor for her legendary generosity, we instead were horrified to read of her sleeping in tattered nightgowns on a couch smelling of urine, and of pettiness and of pilfering.

In the end, Anthony Marshall got just what he was entitled to, but the Astor legacy didn’t.

Legacy Lesson #8: Monitor the Health and the Wealth of a Loved One Who Is Ill and Vulnerable

Brooke Astor’s good intentions we almost dashed by the Antagonist, sadly her son, who was willing to commit fraud, and take advantage of one so vulnerable. Fortunately her grandson and friends stepped in and brought their concerns to the Court’s attention. Don’t ignore your gut instincts. If you smell smoke, there’s probably a fire. Surrogate Courts will seek to protect one who can’t speak for themselves, or one who cannot adequately care for themselves by appointing a conservator or a guardian of the person and property. Sometimes family members battle over who should be appointed to best protect the interests of an ailing family member.  The Court, after hearing from all concerned will make that decision.  Such actions typically are intended to accomplish one thing – protect someone who needs protection. It’s far better to be proactive, and seek judicial intervention, than to ignore the warning signs and leave a loved one and their legacy at risk of going up in smoke.

Another way to create a check and balance system is to execute a Power of Attorney in which you appoint not one, but two co-agents. By so doing, in the event you’re mentally or physically incapacitated, and the agents need to act on your behalf, it takes two signatures for any action to be implemented.     

Legacy Lesson # 9: Anatomy of a Contested Estate

Whether a second spouse, child, friend, relative, neighbor or health care provider; the Antagonist typically has a false sense of entitlement, and a righteous justification for exerting his will over the Will of the weakened prey. Any of these actors may dutifully attend to the daily needs of one so ill or dependent, but alas, the doer of good deeds may be a wolf in sheep’s clothing. Perhaps the caregiver is thought to be so loving and thoughtful by one so dependent, that after traveling to the doctor, pharmacy, and post office, a stop at the bank or lawyers office seems in keeping with what priorities should be. It may just be a reasonable suggestion to visit a new, much better estate planning lawyer, or a timely reminder of children’s irresponsible tendencies, or perhaps changes are “required” to save estate taxes, or a host of other prompts, all at a time when one is fragile, dependent, or weak that fortunes are diverted.  Taken together, these prompts may cause a new Will to be executed, or a new beneficiary form filed just days, weeks or months before death and surprise surprise, the doer of good deeds has surfaced as a primary beneficiary and Executor.

In some cases, however, the decedent is the Antagonist, and the last minute change is the final dig, the last word and the intended consequence is anguish. Those bearing the brunt of the message typically claim that the decedent was not of sound mind, lacked the requisite mental capacity to execute the proffered Will or more likely, that a sister, brother or spouse influenced the Antagonist to act so irrationally. 

Probate litigation almost without fail is caused by the actions of an Antagonist or the inaction of a decedent who failed to implement an effective estate plan coupled with one or more of the following recurring fact patterns:  a dysfunctional family; a second spouse and children from prior marriages; significant wealth involving a family business; an elder infirmed widow who allegedly changed his or her intentions shortly before death; and either a tyrannical or dilatory fiduciary. Should these explosive conditions exist, after the funeral, unspoken words lead to heated words, followed by less than diplomatic late night emails. Thereafter lines are drawn, détentes formed and the best lawyer sought –   all the precursors that lead to battle. These ingredients when mixed, battered or boiled result in a contested estate in which aggrieved heirs seek to:

  1. set aside a Will as the product of undue influence, fraud or lack of capacity;
  2. set aside the titling of investment management accounts or deed;
  3. set aside beneficiary forms for life insurance policies and retirement accounts;
  4. enforce the rights of income beneficiaries or remainder persons of an estate or trust;
  5. set aside the acts of the agent while supposedly authorized by a power of attorney;
  6. demand an estate accounting and then object to the accounting when produced;
  7. remove an Executor or Trustee for malfeasance or breach of fiduciary duty;
  8. demand a sale or distribution of estate assets; and
  9. appraise and properly distribute jewelry, photographs and the contents of the home.

Threatening letters from lawyers may be exchanged, but rarely do such letters result in an amicable resolution. The next action may be the filing of a Caveat, a one paragraph warning to the Court, in the county where the decedent resided. If the Caveat is  properly filed, typically within ten days from date of death or before the Will is offered for probate, the Will is blocked from being admitted to probate. The filing of a Caveat requires the proponent of the Will to file an Order to Show Cause seeking to set aside the Caveat thus allowing the Will to be admitted to probate.  Generally, both sides prepare and sign Certifications telling their side of the story and then a Court issues a return date for preliminary oral argument. If the Court is swayed that something is amiss and that perhaps there was wrongdoing, before vacating the Caveat, the Court will set the matter down for discovery which includes interrogatories, depositions, exchange of paper discovery, expert reports, and briefs which typically are required to be completed within a six month time frame. Extensions are generally required and Court ordered mediation is not unusual before a Trial date is set. In the interim, the Court may appoint an Administrator of the estate who will be fair and impartial during the litigation.

The road to the estate’s conclusion will occur either in mediation, a settlement just before Trial or by a Court after a trial.    Some probate litigation cases are  promptly resolved, others, like Jarndyce v. Jarndyce as described in Charles Dickens, 9th novel, Bleak House,  rumble on for years, decades or generations and the estate assets wind up absorbed by costs – a legacy lost.

Legacy Lesson # 10: Influence or Undue Influence?

Claims seeking to set aside a Will based on undue influence have become more prevalent over the last few years as the economy weakens and as more baby boomers reach the fragility of old age.  Opportunities for children or others to take control of a senior’s finances often lead to temptations that are too often acted upon to the detriment of the intended heirs and beneficiaries.

Generally, Courts have found that undue influence exists when circumstances show a destruction of the free will and judgment of the person over whom influence is exerted and consequently, the weakened testator yields to the will of another merely for the sake of peace or is mentally or morally coerced into doing something contrary to his or her own wishes.  Undue influence can be established both by pressuring one who is in a weakened mental or physical state to yield to the influencer’s control, or sometimes in a much subtler behavior pattern, using acts of kindness to illicit guilt or dependence such that the weakened testator feels compelled to change his or her Will or the titling of his or her assets in favor of the influencer.

In order to establish undue influence, a contestant will typically need to establish:  1) that there were suspicious circumstances at the time the Will was executed; and 2) that a confidential relationship existed between the testator and the beneficiary.

You’ll know if suspicious circumstances exist. In an unreported case, a distant son flew into New York allegedly to visit his dying father in the hospital.  After an unsuccessful operation to remove cancer, the son requested time alone with his dad. The second spouse, tired and depressed welcomed the chance to go home, and perhaps shower, sleep and eat something. She returned the next day as the son was preparing to leave. Hugs exchanged, words of encouragement offered to dad, and off he went. Only days later, dad succumbed to illness and, though the grieving process should have followed, it was cut short. After the funeral, the distant son reappeared and handed his step-mother the new Will.  The son had requested some quality time with dad – some alone time and instead he seized the moment, and orchestrated the execution of a new Will.  The Will, prepared in advance of the son’s visit, was signed by witnesses he arranged, and kept a secret until dad died. The Will all but cut out the wife of 22 years, left the majority of the assets to the son, and named him as Executor – a very different disposition than her husband’s prior Will. This fact pattern is not offered as an academic explanation, but is instead, an example of a suspicious circumstance.

A confidential relationship may exist when circumstances make it clear that the parties do not deal on equal terms, that on one side there is an overpowering influence, and on the other, weakness, dependence or trust such that the parties don’t deal on terms of equality.  For instance, if a daughter controls her mother’s banking, pays her bills, manages her health care, cooks her meals, talks with the accountant or estate planning attorney all at a time when the mother is ill, and but for such help, Mom would be in a nursing home – a confidential relationship would likely be found to exist. Alternatively, if a child is agent under a Power of Attorney, or trustee of a Trust, then that alone may allow a Court to find that there exists a confidential relationship.

Though varying from state to state, and Court to Court, the following factors are generally considered in determining whether or not undue influence exists and who has the burden of proving it:

  1. whether the beneficiary was present at the execution of the Will;
  2. whether the beneficiary recommended and or arranged for the attorney to draft a Will for the testator;
  3. whether the beneficiary, to the exclusion of others, reviewed drafts or provided comments prior to the Will’s execution;
  4. whether the beneficiary was involved with the decedent’s bankers, money managers, accountants or lawyers shortly before the decedent’s demise;
  5. whether the beneficiary was in charge of safekeeping the Will subsequent to its execution;
  6. whether the beneficiary secreted the Will from others;
  7. whether the beneficiary isolated the testator from other family members;
  8. whether the beneficiary disparaged other family members from visiting the testator before his or her demise
  9. whether a beneficiary was the day to day care giver;

10.whether assets were gifted, re-titled or beneficiary forms changed shortly before one’s demise;

  1. whether a long term relationship with the family estate attorney was changed to a new attorney shortly before death;
  2. whether there was a history of a testator seeking to distribute assets equally, followed by actions which caused the estate to be distributed unequally;

13.whether the decedent’s health history indicates a mental or physical impairment;

  1. whether the decedent was taking medication, or required another to care for him;
  2. whether there were any acts that are suspicious or circumspect that resulted in inequity.

If a Court finds that a Last Will and Testament offered for probate was the product of undue influence, then it will be set aside, as if it never existed, and a prior Will may be admitted to probate.

Legacy Lesson #11: By Gift or by Theft?

There is clearly a variation of undue influence that is less frequently written about, but is occurring with increasing frequency.  When someone dies, many look to the decedent’s Will to determine how the estate is to be distributed.  However, the titling of the assets trumps the terms of the Will.  Generally, if an asset is titled jointly with a spouse, as an example, then upon one’s demise, that asset passes to the surviving spouse. Similarly, certain assets like life insurance, individual retirement accounts or annuities have named beneficiaries. The beneficiary designation governs the distribution of the asset – not the Will.  Undue influence may not be present in the drafting and execution of a Will, but may instead may occur in the re-titling of assets while one is ill and dependent on another.

Joint accounts are at first blush afforded certain statutory protections and the Courts generally will enforce the disposition of a joint account passing to the named surviving joint tenant. However, if someone challenges the titling of the account and alleges the beneficiary change form, or a deed conveyance was the product of undue influence,  then Courts may look to two factors. The first is a determination as to whether or not the account was titled jointly as a matter of convenience only,  or if there was really donative intent. By way of example, it’s not unusual for a checking account to be changed such that the daughter who lives nearby can pay bills for her aging mother.  If the account was changed from just the mother’s name, into an account titled in the mother’s name jointly with the daughter simply to enable the daughter to pay bills, then that’s a change for convenience only, not an intention to transfer wealth. Accordingly, the joint disposition would likely be set aside.  Alternatively, if that same mother called her attorney and advised, that in the event of her death she intends that a certain bank account or investment management account is to pass to her daughter, then,  donative intent can be easily established. But without a writing or witness, such intentions may be challenged and overturned by a Court which has no proofs before it to establish donative intent.

In some cases, the re-titling of assets simply reeks of undue influence. The most common example begins with an ill or mentally compromised parent who is dependent on one of his children for all   daily needs. Without such help from the child, the parent fears the only alternative is a nursing home. Fear and dependence changes the balance of power.  A parent may easily assent to a child’s request to change the  title of the investment account and the home from the parent’s name alone, into a joint account, or a deed with the parent and the child jointly … because it’s the right thing to do.  The child may explain that by so doing, the assets will be protected from a nursing home and therefore the change is prudent and really protects everyone. The deed is done.  Not until the parent dies will the other four children quickly learn – the titling of the account trumps the terms of the Will which provided for the children equally. So the other four protest in vain, and then hire an attorney to challenge the re-titling of assets. The pleadings filed with the Court claim that all such transactions should be set aside as a product of undue influence.  The siblings may easily prove that their brother was involved in the parents finances, was an agent under a power of attorney, or a trustee of a trust and that alone may be enough for a Court to find son had a confidential relationship with the parent. In some states, that’s enough to shift the burden of proof to the son to prove there was no undue influence. The son now has an uphill battle. If a Court finds the child was in a position of dominance and the weakened father  dependent, the son may be unable to prove to a Court, by clear and convincing evidence, that all was fair and that the playing field was equal.

Typically, the changing of account ownership forms or deeds doesn’t happen in one day, but occurs over time.  Accordingly, the aggrieved siblings may ask a Court for a reasonable amount of discovery to subpoena all banking records and medical records from the date of death back to the onset of the illness seeking to show a nexus between the two.  Then to prepare for a hearing, their lawyer will propound interrogatories on the alleged influencer, take his or her deposition, and serve anyone with knowledge of the facts with interrogatories, then take their depositions as well. Once all the  banking and medical records are received, experts are hired. Perhaps a forensic accountant will be engaged to quantify the re-titling of accounts and establish the amount of money in controversy and a geriatric medical professional may be hired to attest to the decedent’s weakened condition.

Prior to a trial, the Court may suggest, and the lawyers may agree to mediate their dispute. An experienced lawyer or retired judge may accept the role, review all the pleadings and discovery, then host an informal mediation. You could cut the tension with a knife when all the family members are in one room, each believing they’re right, and genuinely believe the heirs don’t understand and never understood their deceased parent.  The room may be filled with emotion, but a good mediator, reasonable lawyers, and family members looking to put an end to the divide may result in a settlement at, or shortly after mediation. If the case doesn’t settle, pre-trial briefs are filed and  a Trial date set such that a Judge will be destined to determine what the decedent intended. A Court may subsequently order that the re-titled assets which benefitted the influencer, be reversed and be distributed as provided in the decedent’s Last Will and Testament, and sometimes the Court is so enraged by the influencer’s actions that he is ordered to pay the legal fees incurred by the siblings.

Legacy Lesson # 12: Time in a Bottle: Good Days & Bad Days

Even if the Surrogate Court finds Anthony Marshall did not exert undue influence over his weakened mother, the charitable beneficiaries will likely argue that Brooke Astor did not have  the requisite mental capacity when she signed the Codicils. Most Will contests involve allegations that the testator lacked sufficient mental capacity to execute the Last Will and Testament. The standard for mental capacity is low and will be met if, at the time a Will was executed, the testator understood:  a) the extent of his assets; b) who his heirs are; c) that the Will is meant to dispose of his assets at death; and d) the terms of distribution under the Will.  At least initially, the witnesses and notary who watched the testator sign the documents also have attested that the testator – at that moment in time – had mental capacity. Are the witnesses psychologists? Probably not. Can a patient who suffers from early onset of Alzheimer’s have a moment of clarity sufficient to sign a Will? Probably. If heirs challenge not just the Will, but also the three subsequent Codicils and five gifts which took place over a two-year period, must mental capacity be established for each act? Yes.

Although there is a presumption that a testator is of sound mind and competent when he executes a Will, claims often may be filed seeking to set aside or invalidate a Will or gifts claiming the testator lacked testamentary capacity. To prosecute such a claim,  a psychologist will need to be retained to testify that the testator either had or lacked capacity at the time the Will or Codicil was executed. Witnesses to the execution of the Will and the attorney draftsperson also become key witnesses in the litigation.

Many times, the estate planning attorney will take adequate precautions and document evidence of capacity in the client’s file, or will video tape the Will signing if a Will contest is expected.  Some know their Will is going to be contested and actually hire a psychiatrist or psychologist to opine in writing that the testatrix  has capacity, and then, while cameras are rolling,  video tape the Will signing.  During the show, the testatrix  reads a prepared statement that might go something like this:

“My name is Contessa Capacita and I have two daughters, Maria and Tina. Yesterday,  I met with my accountants, reviewed my balance sheet and am aware that my assets total approximately $100,000,000. I am here today, in the presence of two witnesses and a notary to sign my Last Will and Testament. I have read it and it is consistent with my intentions. I have intentionally made no provisions for my daughter, Tina. It’s difficult for a mother to cut her own daughter out of her Will, but I am doing so knowingly and voluntarily. My reason for cutting Tina out of my estate is fairly simple. She has not acted like a daughter to me, she shows me no love or affection. She doesn’t call or write, and has,  for too many years only caused me pain. I’ve had enough. So as to protect my estate, my daughter Maria, and my legacy  I read this statement out loud, so there will no mistake or inquiry about my intentions”.

The lawyer then reviews the Will with her, and in the presence of the witnesses and notary, she signs the Will.  Tina has little to no chance of over-turning the Will … unless Maria was seen in the video,  hiding behind a plant and snickering.

In the Brooke Astor estate litigation, the Court may find she had capacity when she executed her Will on January 30, 2002 but lacked capacity when she signed the First Codicil dated December 18, 2003, the Second Codicil dated January 12, 2004 even more likely the Third Codicil dated March 3, 2004.

So what should you do if your aging parent is succumbing to old age, illness, and there is either no Power of Attorney in effect, or a Power of Attorney is in place, but you suspect foul play? Consider commencing a guardianship proceeding.  In such event, a family member with standing, such as a spouse, child or beneficiary, may file a complaint on behalf of an incapacitated person seeking to be appointed as guardian.  A Court may appoint a guardian over the person to make decisions on behalf of the incapacitated person including living arrangements and health care decisions.  The Court may also appoint a guardian over the property of an incapacitated person who will have the authority to make financial decisions subject later to an accounting. A determination of incapacity may be accomplished if there are two disinterested doctors willing to opine that an individual is mentally or physically incapacitated. To aid in the decision making, a Court may appoint an independent guardian ad litem, typically an attorney respected by the Court, to meet with the alleged incapacitated individual, talk with the doctors and family members, and then file a report with the Court. The report will include a summary and a recommendation as to whether a guardian of the person and or property should be appointed. If family members disagree with the report, a Court may hear from all parties and then issue an Order.  There are also degrees of incapacity, and a growing trend allowing courts to limit a guardian’s powers based on the level of incapacity, thereby allowing the incapacitated person to retain whatever rights are deemed appropriate.

Legacy Lesson #13: Protecting Against Fraud

 

If ever there was an “Antagonist” or an officious interloper, Commodus takes the lead role in Gladiator played by Joaquin Phoenix.

CAESAR: “There is one more duty that I ask of you before you go.

MAXIMUS: What will you have me do Caesar?

CAESAR: I want you to become the protector of Rome after I die. I will empower you, to one end alone; to give power back to the people of Rome and end the corruption that has crippled it.  Will you accept this great honor that I have offered?

MAXIMUS: With all my heart, no.

CAESAR: Maximus, that is why it must be you.

MAXIMUS: But surely a prefect, a senator, somebody who knows the city, who understands her politics….

CAESAR:  But you have not been corrupted by her politics.

MAXIMUS: And Commodus?

CAESAR: Commodus is not a moral man; you have known that since you were young. Commodus cannot rule. He must not rule. You are the son that I should have had. Commodus will accept my decision. He knows that you command the loyalty of the army.”

Caesar had good intentions, but his intentions were not in writing, were not witnessed by others, and were ultimately usurped by the acts of the Antagonist. Moments later Caesar explained his business succession plan to his twisted son Commodus.

CAESAR:  Are you ready to do your duty for Rome?

COMMODUS: Yes, father.

CAESAR: You will not be Emperor.

COMMODUS:  Which wiser, older man is to take my place?

CAESAR: My powers will pass to Maximus to hold in trust until the Senate is ready to rule once more. Rome is to be a Republic again.

COMMODUS: Maximus?

CAESAR: My decision disappoints you?

Apparently his decision did disappoint Commodus, because moments later,  asphyxiated his Father and undermined his intentions.

 

 

Commodus was not the only one who undermined his parent’s decision.  Anthony Marshall was found guilty of fraud, conspiracy, and larceny in a criminal court as he too, undermined the intentions of his mother.  In the Civil Court,  the Westchester County Surrogate must decide which Will or Codicil to admit to probate; and which Will and/or Codicil should be set aside as a product of fraud or undue influence.  A Will can also be set aside as the product of fraud where the testator was misled by another’s misrepresentation or action, thereby, frustrating the testator’s intentions.  Where fraud is found, the Court may set aside a Will which resulted from such fraud.  Sanctions may also be imposed against the bad actor, and in some extreme cases referred to a prosecutor.  Examples of fraud might include, a forged Will, Deed, Trust or Beneficiary form, physical control and exertion over one lacking capacity causing a new document to be executed in favor of the influencer, or an altering of documents.

The reclusive billionaire Howard Hughes invited fraud when he died in 1976 apparently without a valid Last Will and Testament. Several of the recurring fact patterns that are universal to all probate litigations cases were present when the eccentric recluse died; a vast fortune, a family owned business, two marriages, two divorces, no children, no operative estate plan and scores of antagonists. The Hughes Estate was a spectacle, and over thirty purported Wills were offered for probate and all were determined fugazzi’s. But what were the true intentions of then, one of the richest men in America? We’ll never know, but if you want insight into the chaos, consider the Wills offered for probate below.

The Court did not accept this Will so Richard Robard Hughes, aka, Joseph Michael Brown did not inherit the Hughes fortunes. Then there’s the famous Mormon Will proffered by Melvin Dummar.   Dummar who claimed that he picked up a disheveled Howard Hughes as he was stranded roadside from an apparent motorcycle accident. According to Dummar, Hughes was so indebted for his good deed, that allegedly, Hughes executed the following Will:

 

Another fortune, tossed to the wind, to be a spectacle, a mockery and a movie.  By not seeking the counsel of his trusted advisors, Howard Hughes invited fraud.  Ironic, that a man so obsessed with germs would allow every germ, and every Antagonist into his empire to infect and forever taint his legacy.

 

Probate Wars – the Anna Nicole Smith Probate Saga

Stripping and Being Stripped

Vickie Lynn Marshall stunned everyone when she died unexpectedly in February 2007 at the age of 39. Her death, like her life, ignited a firestorm of media coverage.

Having a hard time remembering just who Vickie Lynn Marshall was?  That’s probably because you know her better for her colorful professional career…as an iconic sex symbol.  In the 1990’s she epitomized the definition of a blonde bombshell.  Her curves seared the pages of Playboy Magazine leaving little to the imagination, and in 1993 she captured the Playmate of the Year title, solidifying her as an American sex icon.  Hers was the face of Guess Jeans and her image appeared in magazines, on television, and in numerous modeling ads.  If you are still struggling to figure out who she was, perhaps you knew her by her professional name: Anna Nicole Smith.

Vickie Lynn Marshall – widely (and hereinafter) known as Anna Nicole Smith – may have grabbed national attention as a model, but she stole the media spotlight in 1994 when, at the age of 26, she married elderly 89-year-old self made billionaire, J. Howard Marshall, II.

Marshall, a Yale law school graduate earned his money the old fashioned way;   academic excellence, hard work and an entrepreneurial spirit. Though he served on the Yale Faculty, and later became assistant Dean of Yale Law School, it was oil that ran through his veins.  He co-wrote two articles about oil industry regulations that in 1933 led to his employment in our Nation’s capital to work for the Secretary of the Interior, Harold Ickes.  Thereafter he served as special counsel to the President of Standard Oil (now Chevron), then became a partner in a major law firm.  Some earn their wealth the old fashioned way; others marry into it, while some simply stumble upon it – like Jed. Oh you must remember The Beverly Hillbillies? If not, then listen to a story about a man named Jed. He was a poor mountaineer, and barely kept his family fed. But then, one day he was shootin’ at some food, and up through the ground came some bubblin’ crude. Oil that is, black gold, Texas tea.

Marshall didn’t stumble upon his fortunes, but sure enough, his well was filled by the same Texas Tea.  With his impressive academic background, experience in our Nation’s capital as well as the boardroom, his pump was primed and he was well positioned to co-found The Great Northern Oil Company with Fred C. Koch. Under the stewardship of these two titans, the company grew, into what is now one of the largest privately owned family businesses in the United States – Koch Industries.

At the time of his demise, J. Howard Marshall, II owned 16% of Koch Industries and that asset alone earned him his spot on the elite list of U.S. Billionaires. But we know that all work and no play makes Jack a dull boy, and though  Marshall could travel in the circles of high society and join any club he so desired, it was a gentlemen’s club that bubbled his crude. And so it was, the 87-year-old Ivy League oil tycoon was taking in the sights at Gigi’s, a Texas go-go bar, and like a moth drawn to the fire,  he cast his eyes on one hot number – Anna Nicole Smith.

In the words of Jackson Brown, both of them were “running on empty”.  In the love and longevity column, his tank was running on fumes. He was divorced, his second wife died, one of his two sons had apparently crossed him in a palace coup at Koch Industries and consequently earned the proverbial – “you’re out Tom” and the other son, E. Pierce Marshall simply couldn’t provide the lift that Anna could. Maybe the lonely octogenarian needed companionship or maybe he simply wanted to go out with a bang. Her tank seemed starved for fame, fortune and attention and maybe, just maybe, a marriage to an 89-year-old elderly billionaire could fill her void.  Maybe they both got what they wanted – as only 13 months after they exchanged vows, J. Howard Marshall, II died.  But there were too many maybes and not enough certainties.

Anna Nicole, not quite 28, was a widow. After reading the Will, or having it read to her, she must have been shocked to find out her well would soon run dry.  She was omitted – no bequest, no trust fund, no trinkets. Though her hubby had gifted assets to her worth approximately $6,000,000 during her lifetime, she wasn’t the object of his affection in his Revocable Trust.  Odd that J. Howard Marshall, II, a Yale lawyer and astute businessman allegedly signed a new Will and amended his Revocable Trust just days after his marriage to 26-year-old bombshell, and left her nothing. In fact the Will didn’t even recognize her as his spouse.  That same Will and Revocable Trust also cut out one son, and then there was one, just one beneficiary – E. Pierce Marshall, who by the way, was involved in his father’s estate planning and who stood to inherit the billion dollar fortune.  Was J. Howard Marshall, II’s estate plan the product of undue influence or worse yet, fraud?

Though there was plenty of money to amicably resolve any probate dispute, such was not the path chosen by the parties, or their counsel. It did not take long before the fate of the $1.6 billion estate was in litigation. According to Anna Nicole,  J. Howard Marshall, II orally promised her half of his estate.  But a jury of her Texas-peers rejected her claims, and in 1996 they decided Anna had no claim to the estate.  The battle, however, was far from over.

That same year, 1996, Anna Nicole Smith filed for bankruptcy protection in California, and E. Pierce Marshall filed a claim as one of her creditors. In a story full of the unexpected, the bankruptcy judge didn’t disappoint. Though estate litigation is typically filed and decided in state court – not federal court, the federal bankruptcy judge awarded her $447,000,000 of J. Howard Marshall, II’s estate.  What’s interesting about that number is that it’s close to one-third of the estate, the amount that had the Court tied the award to Anna Nicole’s elective share claim,  would have made sense. But the Bankruptcy Court didn’t tie the number into the elective share claim and therefore it was unclear what the award represented. The ruling did however help land Anna Nicole on the cover of Playboy, again, but this time as the “$450,000,000 Playmate.”

  1. Pierce Marshall must have been blown away, and appealed the Bankruptcy Courts decision. In 2002 U.S. District Court Judge David Carter reduced the award to just $88,500,000. Another appeal, and this time, the 9th Circuit Court of Appeals threw out Judge Carter’s award and ruled that the Federal Court did not have jurisdiction over the case. Anna Nicole contested this ruling, taking her argument to the highest authority in the land: The United States Supreme Court.  The Justices of the Supreme Court, in a unanimous decision issued in May 2006, ruled that Anna Nicole did have legal grounds to challenge J. Howard Marshall, II’s Will in Federal Court.  The Court, however, did not decide the issue of whether she was entitled to the $447,000,000 or $88,500,000 or some other amount, or nothing – that would be left to yet another Court.
  2. Pierce Marshal had fought for years trying to extinguish any rights that Anna Nicole Smith might have in and to his father’s estate. But he would not see victory during his lifetime. He died in June of 2006, and therefore his heirs are burdened with continuing legal drama.

Unfortunately, in September of 2006, before any Court resolved the disposition of J. Howard Marshall, II’s estate, Anna Nicole’s life took a bittersweet turn. Just three days after being blessed with a beautiful daughter, Dannielynn, her joy was overshadowed by her son’s death. Just 20-years-old, and the joy of Anna’s life, Daniel Smith, born from her first marriage to Billy Smith, died while visiting his Mom and step-sister in the hospital. How traumatic for anyone – the birth of a daughter and the death of a son within a three day period.  Despite Daniel’s death, and the birth of Dannielynn, Anna Nicole did not alter her own Will. Only six months later,  her own life was unexpectedly cut short on February 8, 2007 from what Dr. Sanjay Gupta deemed a toxic concoction of prescription drugs. Whether she suffered from post mortem depression and depression from the loss of her son – we’ll never know. Anna’s death however, created a veritable legal hurricane that placed her infant daughter, Dannielynn in the eye of the storm. Anna’s Will may as well have been printed on flash paper as it burned up the tabloids because it expressly cut out her newborn as a beneficiary of her estate, and provided only for her son Daniel who had predeceased her.  Excerpts of Anna’s Last Will & Testament follow:

LAST WILL AND TESTAMENT of VICKIE LYNN MARSHALL

I, VICKIE LYNN MARSHALL, also known as Vickie Lynn Smith, and Vickie Lynn Hogan, and Anna Nicole Smith, a resident of Los Angeles County, California, declare that this is my Will. I revoke all prior Wills and Codicils. I hereby dispose of all property that I am entitled to dispose of by Will and exercise all general powers of appointment that I am entitled to exercise. I have not entered into a contract to make or not revoke a Will.

ARTICLE I: FAMILY DECLARATIONS AND STATUTORY DISINHERITANCES

I am unmarried. I have one child DANIEL WAYNE SMITH. I have no predeceased children nor predeceased children leaving issue. Except as otherwise provided in this Will, I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted, as well as existing and future stepchildren and foster children.

ARTICLE II: DISPOSITION OF ESTATE

All of the property of my estate (the “residue”), after payment of any taxes or other expenses of my estate as provided below, including property subject to a power of appointment exercised hereby, shall be distributed to HOWARD STERN, ESQ., to hold in trust for my child under such terms as he and a court of competent jurisdiction may declare, such that my children are distributed sufficient sums for the health, education, and support according to their accustomed manner of living from either the income or principal of the trust until age twenty-five; and are at that time given one-third of all of the income of the trust and one-third of the principal of the trust as then constituted; and at thirty are given one-half of the income from the trust and one-half of the principal of the trust as then constituted; and at thirty-five are given all of the principal of the trust. If, in the discretion of the Trustee, the amount remaining in the Trust is too small to efficiently administer, he may give all of the corpus of the Trust to my child at once.

ARTICLE III: PROVISIONS REGARDING EXECUTORS

3.1       Nomination of Executor.

I nominate as Executor and as successor Executors of this Will those named below. Each successor Executor shall serve in the order and priority designated if the prior designated Executor fails to qualify or ceases to act.

First:    HOWARD STERN, Esq.

Second:           RON RALE, Esq.

Third:  ERIC JAMES LUND, Esq.

Fourth:            Wells Fargo Bank (Sandra K. Von Paul) or its successors by merger, consolidation, or otherwise.

3.2       Power to Nominate Executor.

If all of the foregoing Executors are unable or unwilling to act, the majority of the adult beneficiaries under this Will shall have the power to designate as successor Executor any corporate fiduciary having assets under management of at least Two Hundred Fifty Million Dollars ($250,000,000). Such designation shall be filed with the court in which this Will is probated.

3.3.      Waiver of Bond.

I request that no bond be required of any Executor nominated above, including nonresidents, whether such Executor is acting alone or together with another.

3.4.      Powers of Executor.

My Executor shall have the following powers in addition to all powers now or hereafter conferred by law, and except as otherwise expressly provided, shall have the broadest and most absolute permissible discretion in exercising all powers. I intend and direct that the probate court uphold any action taken by my Executor, absent clear and convincing evidence of bad faith or gross negligence.

3.4.1.   Independent Administration.

My Executor may administer my estate with full authority under the California Independent Administration of Estates Act.

3.4.2.   Tax Elections and Decisions.

My Executor may value my gross estate for federal estate tax purposes as of the date of my death or any permissible alternate valuation date, my claim any items of expense as income or estate

3.4.3.   Disclaimers.

My Executor may disclaim all or any portion of any bequest, devise or trust interest provided for me under any Will or Trust. In particular, I authorize and encourage my Executor to try to obtain overall tax savings, even though this may change the ultimate recipients of the property that is disclaimed.

3.4.4.   Limitations on Tax Elections and Decisions. Omitted.

3.4.5.   Management and Administrative Powers of Executor. Omitted

3.5.      Resignation of Executor.

My Executor may resign at any time (a) by filing a written instrument with the court having jurisdiction over my estate, or (b) by giving written notice to all successor Executors.

3.6.      Successor Executors.

All authority, titles and powers of the original Executor shall automatically pass to a successor Executor. A successor Executor may accept as correct or contest any accounting made by any predecessor Executor; provided that a successor Executor shall be obligated to inquire into the propriety of any act or omission of a predecessor if so requested in writing by a Trustee of the Trust, any Protector of the Trust, or any adult beneficiary or the guardian of a minor beneficiary of the Trust within ninety (90) days of the date that the successor is appointed.

3.7.      Liability of Executor. Omitted.

3.8.      Executor’s Authority to Transfer to Trust.

I hereby authorize my Executor (or the person nominated to serve as Executor even if no Letters Testamentary are issued) to transfer to the Trustee of the Trust any asset and to execute any document in connection with any such transfer to the extent necessary or appropriate to carry out any assignment of assets to the Trust.

3.9.      Co-Executors.

If more than one person is serving as Executor, one Executor acting alone may transfer securities and execute all documents in connection therewith; open accounts with one or more bank and savings and loan associations; authorize deposit or withdrawal of funds to or from accounts; and sign checks. Transfer agents, corporations and financial institutions dealing with a single Executor as provided in the preceding sentence shall have no liability as a consequence of dealing with only one Executor. My Executor may delegate any ministerial duties to any Co-Executor.

ARTICLE IV: GENERAL PROVISIONS

4.1       No Interest.

No interest shall be paid on any gift hereunder, except to the extent necessary to qualify for the marital deduction.

4.2.      Life Insurance Policies. Omitted.

4.3.      Construction.

4.3.1.   Number and Gender.

In all matters of interpretation, the masculine, feminine and neuter shall each include the other, as the context indicates, and the singular shall include the plural and vice versa.

4.3.2.   Headings.

The headings in this Will are inserted for convenient reference and shall be ignored in interpreting this Will.

4.3.3.   Severability of Provisions.

If any provision hereof is unenforceable, the remaining provisions shall remain in full effect.

4.4.      Governing Law.

The validity, interpretation, and administration of this Will shall be governed by the laws of the State of California in force from time to time.

ARTICLE V: TAXES AND OTHER EXPENSES OF MY ESTATE

Omitted.

ARTICLE VI: NO CONTEST; DISINHERITANCE

6.1.      Contestants Disinherited.

If any legal heir of mine, any person claiming under any such heir, or any other person, in any manner, directly or indirectly, contests or attacks this Will or the Trust or any of the provisions of said instruments, or conspires with or assists anyone in any such contest, or pursues any creditor’s claim that my Executor reasonably deems to constitute a contest, any share or interest in my estate or the Trust is revoked and shall be disposed of as if the contesting beneficiary had predeceased me without descendants, and shall augment proportionately the shares of my estate passing to or in trust for my beneficiaries who have not participated in such acts. This Article shall not apply to a disclaimer. Expenses to resist a contest or other attack of any nature shall be paid from my estate as expenses of administration.

6.2.      General Disinheritance.

Except as otherwise provided herein and in the Trust, I have intentionally omitted to provide for any of my heirs, or persons claiming to be my heirs, whether or not known to me.

ARTICLE VII: OFFICE OF GUARDIAN

7.1.      Nomination of Guardian of the Person.

I nominate HOWARD STERN as guardian and successor guardian of the person of my minor child DANIEL WAYNE SMITH:

Any such nominee who is a resident of a state other than California may, at the nominee’s election, file a petition for appointment in such other state and/or in California. I request that any court having jurisdiction permit the guardian to change the residence and domicile of my minor children to the jurisdiction where the guardian resides.

I give the guardian of the person of my minor children the same authority as a parent having legal custody and authorize the guardian to exercise such authority without need for notice, hearing, court authorization, instructions, approval or confirmation in the same manner as a parent having legal custody. I request that no bond be required because of the grant of these independent powers.

7.2.      Waiver of Bond.

I request that no bond be required of any guardian nominated above.

Signature Clause.

I subscribe my name to this Will at Los Angeles, California, on this 30th day of July, 2001.

Anna Nicole Smith

 

Anna Nicole Smith’s Last Will and Testament is a classic example of an outdated, ineffective Will. Though the Will indicated she had no predeceased children, she sadly did have a predeceased child, Daniel. Then, mistake #2, the Will precluded a future child from being a beneficiary, but at the time of her death, she had a child born after the Will was executed. Mistake number #3, she named as Executor and Trustee a person who as it would turn out, had an issue with the beneficiary. Anna named Howard Stern as Executor and Trustee of her estate. After Anna died, Howard Stern  unsuccessfully tried to establish himself as the father – but DNA testing confirmed he wasn’t Dannielynn’s dad and DNA testing confirmed Larry Birkhead was Dannielynn’s dad.

How did we ever resolve such claims before DNA testing? If we had DNA testing centuries ago, how many servants would be kings, and how many kings would be servants? And Amos, or was it Andy, would know if he was the father of Roxie Hart’s baby, or if Fred Casley,  the bugler … or furniture salesman who gave her ten percent off,  was really the father. Oh wait, if Roxie got a real pregnancy test, then we wouldn’t need a DNA test.  All these tests can really take the fun out of conception – but they do add clarity to the estate planning process. Anyway … an odd position for Howard Stern who as executor of Anna Nicole’s Estate now had to fight for assets for a beneficiary whom he thought was his daughter, but isn’t.

The legal battle over J. Howard Marshall II’s estate that had plagued Anna Nicole for most of her adult life, rumbled on after she died.  Almost a year after Anna Nicole died, in 2008 a Los Angeles judge ruled that  Dannielyn, was the only  the beneficiary of Anna Nicole’s estate. Accordingly, Howard Stern, as executor of Anna Nicole Smith’s estate had to prosecute the claim on behalf of Anna Nicole’s estate that it should be a beneficiary of J. Howard Marshall’s billion dollar estate. How strange would that be, J. Howard Marshall II’s fortunes passing to Anna Nicole Smith’s daughter who was born 11 years after Marshall II’s death.

While the 2008 decision marked the end of Dannielynn’s fight for her mother’s estate, the fight for her mother’s share of the J. Howard Marshall II fortune had only just begun.  Dannielynn could  inherit the millions of dollars her mother so vigorously sought,  but not without a fight. Accordingly, her counsel filed a Writ on March 9, 2009 with the United States Supreme Court asking for authority to start collecting at least the $88,500,000 awarded to Anna Nicole in 2002.  Meanwhile, Anna Nicole’s adversary, E. Pierce Marshall, also died, yet the litigation raged on. The new contestants were: the Estate of E. Pierce Marshall v. the Estate of Anna Nicole Smith, both  seeking to establish their rights in and to the Estate of J. Howard Marshall, II.  E. Pierce Marshall’s estate litigation lawyers fought back, claiming the 2002 award is invalid given the 9th Circuit Court of Appeal’s reversal of the 2002 decision.  They maintained that although the Supreme Court disagreed with the 9th Circuit on the issue of Federal jurisdiction, the Court did not uphold the $88,500,000 judgment.  On March 13, 2009 the United States Supreme Court rejected the attempt to accelerate collection and denied the Writ, and on March 19, 2010, the 9th Circuit, on remand from the U.S. Supreme Court, issued their own embargo.  According to the Court, Anna Nicole Smith and her estate are entitled to nothing, as the finding of the Texas probate court was a final judgment and precludes Federal Court jurisdiction on the issue of undue influence and tortuous interference.  At least it’s over – right?  Nope, the executor of Anna Nicole Smith’s estate appealed and the United States Supreme Court granted certiorari, meaning the highest Court will hear this…again.

The perverse battle over J. Howard Marshall II’s fortunes has lasted over 15 years, and  continues even after the deaths of the primary potential beneficiaries, Anna Nicole or E. Pierce Marshall, and it’s not over yet.  Google the name and image of J. Howard Marshall, II and you find much more about the bizarre marriage and ensuing probate litigation than his awesome professional accomplishments. Anna Nicole’s quest for fame and fortune ended sadly, and Dannielynn, who never met J. Howard Marshall, II, and is not in his gene pool, but could be the heir to the fortune.  And sadly, neither of Marshall’s sons will enjoy their father’s Texas Tea.  Given all the resources that J. Howard Marshall, II had at his fingertips, combined with Anna Nicole’s likely motivation for marriage, it’s simply astounding that his legacy was so exposed and so compromised by both an ill conceived or manipulated estate plan and the lack of a prenuptial agreement.  And while few may be sympathetic to the motivations of Anna Nicole Smith, in fairness to her, her life was left in limbo, turned upside down by uncertainty, bankruptcy, legal bills, and the roller coaster of judicial findings.

In the end, they both sold out.  She sold out love for money, and he sold out the institution of marriage for sexual gratification.  In the end, they really screwed themselves…a crude reality.

Legacy Lesson # 5: The Elective Share & Prenuptial Agreement

How could a brilliant billionaire like J. Howard Marshall, II get married without a prenuptial agreement? Many think of negotiating a prenuptial agreement as a distasteful process but recognize it’s a necessary evil. Once the agreement is completed,  the newlyweds’ rights and responsibilities in the event of a divorce are spelled out.  For the agreement to have any teeth, both parties must have their own counsel and there must be full disclosure of their income and assets.  All true, but most people don’t recognize the importance of, what seems like a boilerplate clause in the agreement, in which both parties waive their right of election and waive their rights in and to each others estate. Because many legislators didn’t like the idea of spouses disinheriting each other, the right of election protects a disinherited spouse so that he or she has the right to opt against their deceased spouse’s estate and claim an entitlement to approximately one-third of that estate. Generally, assets gifted or transferred to each other during their lifetimes would count as a credit toward the one-third elective share claim. Alternatively, spouses negotiating a prenuptial agreement may agree to waive the elective share claim, and then agree upon the distribution of assets in the event of one spouses demise. For example, if J. Howard Marshall, II and Anna Nicole Smith entered into a prenuptial agreement, and she waived her right of election, but agreed instead to a fixed bequest of $20,000,000 or a fixed percentage of the gross estate, say 5%, then little would be left to chance or interpretation. Note however, when using a percentage of the gross estate, sometimes beneficiaries battle over the valuation of an asset which is part of the estate, by way of example, a business interest, intellectual property rights, or royalties. Accordingly, a fixed bequest may be the preferable route.

There’s no right or wrong amount that a surviving spouse should inherit, but from a practical point of view, if the prenuptial agreement provides the safety net of a home and a reasonable sum of money, both being either outright or in trust, it goes a long way toward keeping the peace and marital bliss. If such planning considerations were a universal predicate to a second marriage, much of the probate litigation currently docketed, wouldn’t have been filed, and more importantly, the widow or widower could afford to grieve and co-exist peacefully with the children from prior marriages.

Legacy Lesson #6: Providing Equitably for a Second Spouse and Children From a Prior Marriage

There’s this story, of a lovely lady, who, as the story was told, was bringing up three very lovely girls. All the girls had golden hair, like their mother, and the youngest one had golden curls. There’s a similar story, of a man named Brady, who was raising three boys of his own. They were four men, living all together, but clearly, they were all alone. Well, one day the lady met this fellow on match.com. And they knew it was much more than a hunch. They felt that this group, after exchanging prenuptials, must somehow form a family and that’s how they all became the Brady Bunch.

Did you see the episode when Carol was busy packing for the Brady’s trip to Hawaii, had a heart attack and died? Me neither. But, if it were an episode, and Carol’s Will left everything to Mike,  would Marsha, Jan and Cindy sue their beloved step father? Well, maybe just Jan. But put the Brady’s aside, because they’d resolve everything amicably anyway. Think of your family, your friends family or for that matter any blended family that makes up a such big part of America’s fabric and ask yourself,  what would happen if one spouse died?  Who are the heirs … the second spouse, the children from the first marriage, a combination of both of them? How much to each and when?  What’s fair?

Too often the Will is vague, the decedent’s intentions are unclear, and the survivors all have expectations. It should come as no surprise that estate litigation cases are on the rise, and once filed, the gloves come off. Though a prenuptial agreement would have been helpful, even without such an agreement, a well designed estate plan could provide equitably for children from a prior marriage and a subsequent spouse. The amount left to each, the timing of the distributions, and the estate tax implications require thoughtful consideration of the following factors:

  1. The financial needs of the children and the second spouse;
  2. The ages of the children and the age of the spouse;
  3. The estate tax implications of leaving money to a spouse or children;
  4. The terms of a prenuptial agreement;
  5. The length of the marriage and whether children were born to the marriage;
  6. The relationship between the parent and the children from a prior marriage;
  7. The need to hold the assets in a spousal trust or distribute outright to spouse and the need to hold assets in a discretionary trust or age terminating trust for children or distribute outright;
  8. The titling of assets to make sure they are consistent with the terms of the Will;
  9. The health of spouse and children; and
  10. Their respective abilities to manage money

If an estate plan is created by an attorney who balances these needs such that the plan provides reasonably for each beneficiary class, then the likelihood of adequately protecting both your loved ones and your legacy goes up. But if the Will is silent as to any class, as it was with Anna Nicole Smith, or harsh as to any one beneficiary, then the likelihood of probate litigation goes up – dramatically.

Legacy Lesson # 7: Disinheriting a Family Member

If J. Howard Marshall II truly intended on cutting his young bride out of his estate, he should have taken a page from Sanford Babbitt’s playbook. In the movie Rain Man, Tom Cruise plays a fast and loose son who at age 16, fell out of favor with his father. After his father’s demise, the family lawyer read aloud the following terms of a letter which was attached to the Will:

AU: Per Legal’s instructions, movie quotes don’t require permission up to about 300 words – this needs to be trimmed a bit. I’d summarize some of the dialogue at the end… – Emilie

‘And I remember, too, the day you left home…

so full of bitterness and grandiose ideas.

So full of yourself.

And being raised without a mother, the hardness of your heart…

is understandable as well.

Your refusal to even pretend that you loved or respected me…

all these I forgive.

But your failure to write, to telephone, to reenter my Life in any way…

has left me without a son.

I wish you all I ever wanted for you. I wish you the best.’

Then turning to the Will, the Lawyer continued reading:

‘l hereby bequeath to my son, Charles Sanford Babbitt…

that certain Buick convertible…

the very car that, unfortunately, brought our relationship to an end.

Also, outright title to my prizewinning hybrid rose bushes.

May they remind him of the value of excellence…

and the possibility of perfection.

As for my home and all other property, real and personal…

these shall be placed in trust in accordance with the terms of…

that certain instrument executed concurrently herewith.’

Charlie Babbitt then asks: “What does that mean?”

Family Lawyer responds: “It means that the estate, in excess $3 million… after expenses and taxes, will go into a trust fund… for a beneficiary to be named in this document.”

Charlie Babbitt: “Who is that?”

Family Lawyer: “I’m afraid I can’t tell you that.”

Charlie Babbitt: “Who controls the money? You?”

Family Lawyer: “No. He’s called a trustee.”

Charlie Babbitt: “What is that? How does that work?”

Family Lawyer: “Forgive me, but there’s nothing more I can say. I’m sorry, son. I can see that you’re disappointed.”

Charlie Babbitt: “Why should I be disappointed? I got rose bushes, didn’t I? What’s his name got–What’d you call him? The– – Beneficiary?  He got $3 million, but he didn’t get the rose bushes.  I definitely got the rose bushes.”

Family Lawyer: “Charles, I mean, those are rose bushesThere’s no need —”

Charlie Babbitt: “To what? To be upset? To be upset?  If there is a hell, sir, my father’s in it…and he is looking up right now and he is laughing his ass off.  Sanford Babbitt. You wanna be that guy’s son for five minutes?

Family Lawyer: “Were you Listening to that letter?”

Charlie Babbitt: “Yes, sir, I was.”

Family Lawyer: “Were you?”

Charlie Babbitt: “No. Could you repeat it? ‘Cause I can’t believe my fuckin’ ears.

(Charlie then leaves the room stunned and sees his beautiful girlfriend.)

Girlfriend: “I was looking for you.  How did it go?”

Charlie Babbitt: “I got what I expected.”

Sometimes a child has chosen not to be part of their family, or has been a thorn in the side of his or her parents for too long, has shown no love or respect, is simply out of favor.  Or as is often the case, a child has married a spouse who is not up to snuff or appears to be the cause of divide.  Though a child does not by law have rights to inherit the riches of their parents, simply omitting the child from a Will is a mistake. Such an omission may leave the omitted child nothing to lose and all to gain by contesting the Will. Why? Because a Will contest burdens the other surviving beneficiaries and the Estate with the costs associated with litigation, will cause the Executor or Administrator to delay distributions to the heirs until the litigation is concluded and will increase the tensions and anxieties for those who now need to fight the omitted child. Even if the omitted child has weak case, the prospect of a long and costly litigation could force a settlement, particularly if the other heirs have no stomach to battle or resources to fund the war.

Simply omitting a child from your Will, or providing the sum of $1 is not prudent planning. The better course of action is to name the child in the Will and specifically address why the child is not to be included as a beneficiary. The goal is to let all who read the Will, including potentially a Judge, know that your decision was deliberate and intentional. Sometimes, in addition to the language in the Will, a handwritten letter is helpful if it details your reasoning as it could be introduced into evidence and quickly quash the Antagonists’ ill conceived efforts.

For those who have meaningful assets, it may be prudent to include a modest bequest for the child, but not include him or her in the residuary or balance or the estate.  In addition to the bequest, the inclusion of a no contest clause, or in terrorum clause, adds teeth and gives the Antagonist cause for concern. This clause provides that in the event any beneficiary contests the Will, their interest lapses and is distributable to the residuary beneficiaries. Even the most adversarial beneficiary would think twice before contesting the Will, for to do so would put their bequest at risk. The combination of language specifically omitting the beneficiary from the residuary, providing a small but not inconsequential fixed bequest, an in terrorum clause, and possibly a handwritten letter of explanation and a video taped Will signing, all but disarm the Antagonist from contesting a Will.

Just ask Charlie Babbitt.

 

Russell J. Fishkind, Esq. and Ronald P. Colicchio, Esq. at Saul Ewing, LLP rfishkind@saul.com (609)452-5043                                                    rcolicchio@saul.com (609)452-3133