While it is not unusual for family members to fight over a deceased relative’s estate, it is rare to see a will contest result in a criminal prosecution. But that is exactly what has played-out this summer in a Manhattan courtroom as Anthony Marshall and his attorney, Francis Morrissey, are being tried for defrauding the estate of Marshall’s mother, socialite Brooke Astor, out of millions of dollars that prosecutors say Mrs. Astor had intended to go to numerous charities.
Mrs. Astor, who died in 2007 at age 105, was diagnosed with Alzheimer’s disease in 2000. Known as “the First Lady of Philanthropy,” Mrs. Astor had executed numerous wills over the years designating a significant portion of her estimated $187 million estate to go to a charitable trust. Marshall, her only child, was slated to receive in excess of $20 million.
Prosecutors allege, however, that Marshall decided that sum was insufficient to support his and his wife’s extravagant lifestyle. So, in early 2004 – and notwithstanding that his then 102 year-old mother had been suffering with Alzheimer’s for at least four years -- Marshall brought in a new attorney to draft a “Codicil” (e.g. an amendment) to Mrs. Astor’s will. The attorney (a well-known Manhattan trusts and estates attorney) drafted the Codicil without having met Mrs. Astor, and met with her for only about 15 minutes during the will execution ceremony. Nonetheless the attorney (who allegedly pocketed $1.7 million in legal fees) testified that Mrs. Astor was in fact competent to sign the will at that time, notwithstanding her advanced age and her prior Alzheimer’s diagnosis.
Regardless whether this case results in any convictions, the tawdry affair has been a boon to the tabloids, but an embarrassment to Mrs. Astor’s family and many of the professional advisers who participated in the events in question. The attorney who drafted her final will in 2004 has been criticized for apparently giving little consideration to Mrs. Astor’s obviously deteriorated mental condition and advanced age. Given that he was brought to the scene by a beneficiary who stood to gain millions from the change in the will, the attorney had a duty to conduct sufficient due diligence to determine Mrs. Astor’s capacity to sign a new will. It seems especially damaging to the attorney’s credibility that he stood to earn almost $2 million for his work on what appears to have been a fairly simple Codicil to the will.
Despite her millions, Mrs. Astor does not appear to have been well-served by her advisers. The current criminal case, as well as the previously well-publicized guardianship dispute between her son and grandson, revolves around Mrs. Astor’s mental competency and her ability to manage her affairs. Imagine that instead of relying upon a will-based estate plan that while she was in her 70’s or 80’s – and when there was no question regarding Mrs. Astor’s competency -- Mrs. Astor had executed a living trust agreement that included a “Disability Panel” designated to determine her mental capacity on an ongoing basis. The Disability Panel would have likely included her personal physician, her son, and one or more other close friends or relatives. As Mrs. Astor’s Alzheimer’s became more acute, the Disability Panel would have sprung into action to shift legal control of Mrs. Astor’s affairs from herself to her personally-designated successor Trustees. Once the panel had declared her “disabled” – which almost certainly would have occurred prior to the 2004 Codicil – it would have been virtually impossible for Mrs. Astor’s son to enrich himself by arranging for Mrs. Astor to modify her estate plan as provided by the 2004 Codicil.
You certainly don’t need Mrs. Astor’s millions to design an effective estate plan that incorporates comprehensive disability planning as well as death planning. But, you do need to work with an attorney who is as focused on planning for lifetime disability issues as on death planning.