“Money is like manure; it’s not worth a thing unless it’s spread around.”—Brooke Astor
Probate lawyers and laypersons will all enjoy reading Meryl Gordon’s recent book Mrs. Astor Regrets: The Hidden Betrayals of a Family Beyond Reproach as an outline of what can happen when wealth meets the dysfunctional family. As most readers may know, the late philanthropist Brooke Astor’s probate estate was the subject of litigation and criminal charges in New York.
Prosecutors charged in an eighteen count indictment that Anthony and his lawyer, Francis Morrisey, conspired to make changes to Ms. Astor’s last will and testament long after she had the mental capacity to understand what was happening. Mrs. Astor, who had Alzheimer’s disease, was 105 when she died in August 2007. There has also been evidence introduced in the trial suggesting that Marshall and his lawyer forged Ms. Astor’s name on the last will and testament so as to shift almost $200 million to Marshall and Charlene.
This closely watched trial ended after 12 days of jury deliberations and after six months of testimony and evidence that has been characterized as a “Who’s Who of New York’s Social elite.” In fact, some of the witnesses who testified included Henry Kissinger, Graydon Carter, Barbara Walters, Vartan Gregorian and Annette de la Renta. Ultimately, Marshall was convicted of felony criminal charges, including grand larceny and scheming to defraud. The lawyer for Marshall was also convicted of forgery and scheming to defraud Astor. Charlene reportedly left the court room without showing any emotional response.
It’s important to remember that the entire case started when Marshall’s own son, Philip, filed a petition three years ago asking the court to appoint a guardian for his grandmother, claiming that Mrs. Astor was being victimized by elder abuse and seeking to removed Marshall’s control of her financial affairs.
This case serves as a great example of the things to look for if one suspects that a relative or loved one is or was the victim of undue influence. Questions to ask include:
- Was there a confidential relationship between the testator (the person making a Will or Trust) and the person who is suspected of being an undue influencer or elder abuser?
- Was the undue influencer present at the execution of the will or trust?
- Was the undue influencer present on occasions when the testator expressed a desire to make the will or trust?
- Did the undue influencer recommend the lawyer who drafted the Will or Trust, or was there a relationship between the undue influencer and counsel?
- Did the undue influencer have knowledge of the contents of the Will or Trust prior to its execution?
- Did the undue influencer give instructions on preparation of the will to the attorney drafting the will?
- Did the undue influencer make payment to the will or trust preparer?
- Did the undue influencer secure witnesses to the Will or Trust?
- Did the undue influencer keep the original or copies of the Will or Trust after its execution?
- Was the execution of the Will or Trust kept a secret from other family members or potential will contestants?
- Was the testator old?
- Was there an opportunity for the exercise of undue influence?
- Was the testator’s mental and physical health weak?
- Was the undue influencer caring for the testator during the final months of her life?
- Was the undue influencer meeting alone at the attorney’s office and instructing the attorney to prepare the Will or Trust designating the undue influencer as the sole beneficiary?
- Does the estate plan represent an unnatural disposition of the testator’s property?
- Was the undue influencer taking complete charge of the testator’s estate, thereby placing him or herself in a highly fiduciary capacity?
- Did the undue influencer treat the Will or Trust execution as an urgent matter?
- Did the undue influencer arrange the appointment with the attorney?
- Does the new Will or Trust represent a dramatic change from former Will’s or expressed intentions?
The answers to these questions will frequently expose potential undue influence and serve as the legal basis for making an appeal to the law and requiring the undue influencer to come forward with an explanation of how the Will or Trust came into existence.