New York Probate & Estate Litigation Blog

In December 2008, Surrogate - elect Nora Anderson was indicted for allegedly failing to properly report at least a quarter of a million dollars in campaign contributions. While Ms. Anderson contended that this money came from her own personal funds, prosecutors have alleged that the true source of the contributions was Seth Rubinstein, her eighty two year old law partner and mentor. According to theNew York Times, this case raises some unusual questions about what happens when funds claimed as gifts are utilized in a campaign.

In a special bulletin, the New York Times has just reported that Anthony D Marshall, son of the late socialite Brooke Astor has been sentenced to prison by a New York State Supreme Court Justice. Marshall was sentenced to one to three years in state prison by Justice A. Kirke Bartley Jr. after being convicted of stealing millions from his mother while she was alive. The case drew national attention first when it came to light that Marshall had kept his mother as a virtual prisoner, left to wallow in her own waste. The case focused attention on the growing problem of elder abuse, demonstrating that even super rich seniors such as Brooke Astor were subject to being severely mistreated by their own families. Marshall, who is 85 years old, has vowed to appeal the verdict so, given his advanced age and the legal firepower available to him, it is anyone's guess when he will actually report to start serving his sentence .

As reported today by fellow lawblogger Karen Meckstroth in her Bay Area Wills, Trusts And Probate Report Blog  two Representatives have filed different bills to amend the Internal Revenue Code and to restore the estate tax which would otherwise terminate for one year in 2010. The bills proposed by Rep. Berkley (D.NY) and Rep. Schrader (D-OR) may each be viewed by clicking on the link provided by Ms. Meckstroth in her article. Both provide for an increase in the basic estate tax exemption to 5 million dollars. and for a reduction in the maximum estate tax and gift rate.

More than forty years after the death of Martin Luther King Jr., his children have resolved a bitter dispute over his multi million dollar estate. As reported by Bruce Carton in an article posted on Legal Blog Watch today, the lawsuits and countersuits stemming from charges of misuse of estate funds and seeking control over various assets have been settled, the family seeking to move on and preserve the legacy of their late father. An interesting sidelight of the story is that the estate retains a legal interest in the copyright of Dr. King's famous "I Have A Dream" speech that thrilled those present at the March on Washington in August 1963 . In 1999, the 11th Circuit Court of Appeals ruled that  the "public  performance" of the speech, did not constitute "general publication' so as to cause the copyright to be forfeited.

The New York Times has just reported that a Westchester County Jury has convicted Anthony D. Marshall, 85 year old son of the late socialite Brooke Astor of fourteen counts of stealing from his mother's estate. Also convicted of forgery was Francis X Morrissey, former attorney of Ms. Astor.  The jury returned its verdicts after twelve days of deliberations and after things had reached the point where it appeared that it may have reached an impasse which would have resulted in a mistrial.

In a surprise move, the prosecution in the Brooke Astor trial rested its case, according to the New York Times. The trial has now been front page news in New York for three months.  The trial of  Ms. Astor's son Anthony Marshall and his attorney Francis X Morrissey for allegedly forging a codicil to her will has had countless  twists and turns. Marshall and Morrissey are facing a total of 22 charges of conspiracy, scheming to defraud, larceny and forgery. This is enough to keep a battalion of lawyers busy at a cost of over $100,000 per week.

Just as Brooke Astor was a dominating force in the social scene of New York for decades, the trial of her son Anthony Marshall and her former lawyer Francis X Morrissey has been dominating the legal scene here with a daily articles in the local press. Today's New York Times reports an interesting chapter in the case with an account of the testimony of G. Warren Whitaker who was questioned extensively about his role in the alleged forgery. Whitaker is not under any suspicion of acting improperly, but it was he who prepared the codicil which re-directed some sixty million dollars from charitable bequests to Marshall who was allegedly looking to create a larger estate for his wife Charlene. Prosecutors have  subjected  Whitaker to withering questions about his role in the preparation of the codicil which was requested by Marshall and Morrissey and, according to the prosecution, forged by those two defendants at a time when Ms. Astor was suffering from Alzheimer's Disease and presumably lacked testamentary capacity. 

Readers of today's Times article may find the links to other recent stories about the Astor trial to be of interest.

Recently, Long Island was rocked by news of the tragic and shocking murder of  Betty Ann Parente and her two daughters by her husband, Garden City lawyer William Parente who then took his own life in a Maryland hotel. Barely has the community digested the enormity of this crime and the loss of a popular and talented family when the legal implications of how estates are affected by murder have surfaced as reported in today's Newsday. The order of the deaths has particular significance . So does the obvious fact that if --as it seems-- William Parente was the last member of his family to die, his distributees would be unable to inherit the assets of his wife and daughters should it be determined that he had murdered them.  This article gives us a good picture of the complexities of an estate which is bound to have some uncharted twists and turns as it wends its way through the Nassau County Surrogate's Court.

Leona Helmsley may have been known as the "Queen of Mean" but today's Wall Street Journal reminds us that she left about five billion dollars to her foundation , The Leona M. and Harry B. Helmsley Charitable Trust which had a mission statement directing that a large portion of these funds be provided to the care and welfare of dogs. This lead to an outcry that  charities providing for the needs of humans were being neglected in favor of our four-legged friends. The trustees of the estate together with New York Attorney General Andrew Cuomo petitioned the New York County Surrogate for a ruling as to whether or not the mission statement could be binding upon the trustees' decisions to apply the funds of the trust.  Recently, Surrogate Troy Brewer ruled that the trustees were free to use their own discretion in making grants from the funds they held in trust. It has now been revealed that approximately 136 million dollars have been awarded in the first wave of grants -- 1 million of which was applied to charities for the benefit of animals.

As the Journal advises us, a trust creator who wants to make sure his or her wishes are followed by the trustees should either give very specific directions or simply dispose of the funds while still alive. Of course, the question remains as to whether the same result would have been reached with a much smaller trust fund. While five billion dollars is a staggering amount to contemplate in a charitable trust focused upon canine beneficiaries, I would think it far more likely that a smaller sum ( a few million , for instance) might have a better chance of being disposed of totally in line with the wishes of the trust creator.

The Brooke Astor trial is in full swing in New York County Supreme Court . The range of relevant articles published over the past ten days in the New York Times is so broad that I have simply provided a link to all of the Times stories published since the beginning of the month. The criminal trial of Brooke Astor's son Anthony Marshall and her former attorney Frank Morrissey for allegedly forging her will and looting her estate truly has something for everyone.

The Godfather of Soul has been gone for years but his estate, it seems, will be legal fodder for years to come. The Associated Press has reported that Jacque Hollander, his former publicist is suing James Brown's estate in Chicago for control of a charitable trust which she claims she was responsible for setting up. She claims that as the only surviving trust partner, she has the right to control the distribution of trust assets which include, among other things, the singer's home and the royalties from "I Feel Good"  (which the ultimate winner of this protracted legal war certainly will!). With considerable luck, this blog will still be publishing when the last issue in this estate is finally decided. If so, you will be able to read about it here.

Jury selection has begun here in New York in the trial of Anthony D. Marshall and attorney Francis Morrissey who stand accused of forging the will of Marshall's late mother, socialite Brooke Astor who died in August  2007 at the age of 105 and who left an estate of roughly 132 million dollars. In the year prior to his mother's death, Marshall had been the subject of an investigation that he had neglected and abused her and had looted substantial amounts of her assets.

The limit for small estates for decedents dying after January 1 , 2009 has been raised in New York. In fact, it has doubled from fifteen thousand dollars to thirty thousand dollars. The filing fee for this simplified procedure is still just one dollar and it remains possible to handle a small estate without the expense of a lawyer.

The dramatic saga of New York County Surrogate-elect Nora Anderson continues with the recent recommendation of the Commission on Judicial Conduct that she be suspended upon taking office on January 1st. The New York Times has reported that a letter sent by the commission to the Court of Appeals states that "“public confidence in the integrity of the judiciary, the courts and the administration of justice would be undermined” if Ms. Anderson presided over cases in Surrogate’s Court while facing criminal charges. Earlier this month, the Surrogate-elect was indicted on charges that she violated campaign finance laws concerning allegations concealing a $250,000 campaign contribution from her boss (who was also charged) and stating that she had advanced the funds herself from her own personal assets.  The limit imposed by state laws for an individual contribution to any campaign is $33,122.50 (a curious number indeed, especially when one considers the $2,300 limit on contributions to a presidential candidate).

Yesterday's Charlotte Observer  has reported on the latest chapter of the turbulent death of James Brown. The South Carolina Court of Appeals has directed that at least 300 items belonging to the late Godfather of Soul are to be auctioned off by Christies in New York on Thursday. The controversy that was part of the life of Brown has continued long after his death on Christmas Day 2006. You may recall that his body was kept in cold storage in his home while a battle raged as to how and where he should be buried. Then there were issues as to whether or not previously unidentified children were entitled to share in his estate. Now there has been a legal battle over the disposition of many items of his personal possessions. With Brown's former business managers waging a court fight to stop the auction, Judge Jasper Cureton has decided to permit the auction to take place and "sort things out later". Hurry to Christies on July 17th if you want to take a shot at acquiring Brown's red jump suit, his blue satin cape or some of his hair picks or rollers! One certain thing , however, is that this estate still has some more mileage -- and headlines -- left, so stay tuned. 

In the past, I have reported here about the need for a uniform guardianship law in order to prevent elder kidnapping to gain control of a senior citizen's estate. The case of Lillian Glasser made headlines two years ago when it took a federal court to unsnarl a legal imbroglio between a New Jersey widow and her children when her daughter attempted to keep her in Texas by obtaining an order from a Dallas probate judge while her mother was visiting her. The Hartford Courant reported on May 9th on a similar  and even more horrifying case.

The New York Times reported today that Heath Ledger's will made no provisions either for his young daughter, or for  her mother and former girlfriend  Michelle Williams. Instead, the actor left his entire estate to his parents and sisters back in his native Australia.

Today's New York Times brings us  depressing news of yet another attorney fallen from grace for not being able to keep her hands off of the property of an elderly person over whom she had been appointed guardian. The Appellate Division has suspended Emani Taylor for allegedly converting the property of retired Supreme Court Justice John L. Phillips after saying that she had failed to cooperate with the court's investigation into her actions.

Today's New York Times business section tells us of  the mysterious death in Florida of 44 year old hedge fund manager Seth Tobias this past September 4th. From all appearances, he had suffered a fatal heart attack and was found in his swimming pool. Initially, there were no suspicions raised by the death of this man who had controlled a 300 million dollar hedge fund and whose estate is estimated at about 25 million dollars.

Of course, large amounts of money can lead to king-sized claims. Mr. Tobias' four brothers have already filed a lawsuit against his widow Filomena amidst claims that she had drugged and murdered her husband even though she has not been charged with any crime. The Jupiter Florida police have not opened a criminal investigation --and are not likely to do so until the results of the medical examiner's toxicology tests are known.

Meanwhile, Florida subscribes to the doctrine that one cannot profit by one's own wrongdoing and therefore a killer cannot inherit from his or her victim.The stakes here will be extremely high in all respects --and it looks as if we will be treated to a lurid and exciting wild ride which will, incidentally, provide us with more than a few lessons in the law before it is over. 

Today's New York Times has reported the indictments of Anthony D.Marshall, 83 year old son of the late Brooke Astor together with Francis X. Morrissey Jr. Esq. ,a former lawyer of the socialite who passed away in August at the age of 105. The two are charged with irregularities dealing with their activities involving the handling of her financial affairs.

Chutzpah has been defined as pleading for mercy on the grounds that one is an orphan after killing both parents. Condemned killer Scott Peterson gives this new meaning after daring to apply for the benefits from the life insurance policy of his wife Lacie. This story is set forth in some detail in a recent report in LA's Metropolitan News Enterprise. It merely restates the time-honored and well-settled public policy that denies a killer any share of the estate or insurance benefits of the person he or she has murdered. Was this application for benefits a ploy to obtain funds to pay legal fees (Peterson won't  need the money where he is going and he is sure to leave behind a gigantic bill from his attorneys)? Just a thought.

Today's New York Times has reported that the settlement talks being held in the Westchester County Surrogate's Court to attempt to resolve the dispute over Brook Astor's Estate have been put on hold while the New York County District Attorney presents the case to a Grand Jury for possible criminal action.

The New York Times has reported that a Manhattan grand jury may be asked to investigate whether or not crimes were committed in the case involving 104 year old socialite Brooke Astor.As reported here last year, questions raised about irregularities in administration of the assets of the multi-millionaire heiress by her son Anthony Marshall as well as allegations of elder abuse and neglect (later found to be unsubstantiated by a New York Supreme Court Judge John Stackhouse ) led to protracted litigation which culminated in an agreement aimed at protecting Ms. Astor's assets and insuring that she would receive good care.

Now, a report issued by court-appointed guardian JP Morgan Chase raises new questions and allegations about Brooke Astor's mental competency in 2003 when she signed documents transferring about nine million dollars in various assets to her son. New York County District Attorney Robert Morgenthau has now reportedly advised potential witnesses to prepare to give grand jury testimony in the matter.

Sometimes even a superstar flares out. Such was the determination of a New York jury which found that attorney Jonathan Blattmachr had breached his fiduciary duty by recommending a plan to avoid estate tax by purchasing life insurance pursuant to a method known as a"split dollar insurance arrangement" to Henry Schein, one of the wealthy and well-known clients advised by Mr. Blattmachr and his firm Milbank, Tweed. The verdict is reported in the Wall Street Journal which notes that since the jury also found that this breach was not material in contributing to the client's loss when the IRS disallowed the strategy, the Schein Estate was not entitled to collect damages.

This story carries with it an implied word to the wise. In this situation, the strategy recommended was already falling into some disfavor with the IRS . Usually, when a plan of action doesn't feel right or has been subject to criticism in high places (the IRS is a good example of that), a second --or even a third-- look is usually in order. If an estate planning genius with the ability of Jonathan Blattmachr can run afoul of the law, the rest of us are doubly warned.

Today's New York Times  reports that one of the more cynical attempts at drastically cutting the estate tax has gone down to defeat in the Senate.  Proponents of repeal in the House had linked an increase in the minimum wage to the new tax cut proposal which failed in the Senate by four votes. It should not pass without notice that one of the big losers here is Majority Leader Bill Frist (R- Tenn) whose estate (consisting of his interest in his family's share of Health Corporation of America) would save  literally tens of millions of dollars if the measure had passed.

Your faithful blogger understands that many out there are slow to characterize this as a "war on the middle class" but I am slow to find any other appropriate adjectives to describe a situation where a much-needed increase in the minimum wage is linked to an estate tax cut which will benefit far less than 1% of taxpayers while further concentrating wealth in the hands of fewer Americans and creating a revenue shortfall that the rest of us in far more mundane income brackets will have to make up.

Following last week's breaking news story reported here about the alleged mistreatment of 104 year old socialite and heiress Brooke Astor, New York's Supreme Court has stepped in and appointed Ms. Astor's longtime friend  and protegee Annette de la Renta as her temporary guardian. This morning, it was reported that Ms. Astor has left a Manhattan hospital for the cushier surroundings of her estate at Briarcliff Manor where her son --and former guardian-- 82 year old Anthony Marshall was turned away when he attempted to visit.

CNN has reported that the Senate has failed at an attempt to reach a compromise on legislation to raise the limits on the estate tax after an earlier attempt at outright repeal of the tax also failed. Repeal of the estate tax would affect less than one percent of all estates of persons dying after the first of this year but it is also estimated that the cost in revenue to the goverment would be as high as one trillion dollars between the years 2012 and 2021.

I could not help but notice that, in a related article, CNN reported that an (unscientific) online poll indicates that fully 51% of those repsonding favored the outright elimination of the tax. It is a sobering thought that those special interest groups fighting for estate tax repeal have succeeded to the point where 51% of the public appears to be willing to shoulder a one trillion dollar tax burden which the wealthiest .3% of Americans would be relieved of paying.

Your faithful law blogger arrived home tonight to find our two family felines -visions of endless quantities of cat treats abounding in their heads-- trying their best to read today's issue of the New York Sun which features an article on pet trusts. While I was well-aware that pet trusts are legally recognized, effective and widely-used estate planning tools in New York, I frankly had no idea as to the extent to which they are currently being utilized. It seems that six figure bequests for Fido and Fluffy are becoming more common than one might otherwise think. This summer's conference of the American Bar Association to be held in Hawaii will have a session on pet trusts and there are now attorneys who have begun to specialize in this area of the law.

The May 14th issue of the Stamford Advocate contains a cautionary story by Julie Jason about the perils of becoming a fiduciary. While you will really have to be incredibly unlucky to suffer the fate of Monsignor Bolduc's executor, this article really underscores the need to act quickly to retain competent counsel and learn exactly what a fiduciary's rights and responsibilities are (you needn't accept the apppointment if it seems too fraught with danger). Meanwhile, the finding of the Connecticut probate court seems a bit far-fetched and it would appear that the appellant's chances are rather good. We will see.

Leanna Hamill's Massachusetts Estate Planning and Elder Law Blog has reprinted an interesting and thought-provoking article from April 30th's Boston Globe Magazine. It is never too early for young parents to consider --and to aggravate over-- estate planning. I thought you might enjoy it.

It appears that Anna Nicole Smith's recent Supreme Court victory may result in a flood of federal litigation of probate matters. My Florida friend and fellow law blogger Juan Antunez (Florida Probate Litigation. com) ruminates on this idea in his blog today and contemplates spending a lot more time in federal court in the future.

Former Playboy playmate Anna Nicole Smith has won a major victory in the Supreme Court. Associated Press has reported that the court voted unanimously to give her another day in court and revived her claim against the estate of her late husband J. Howard Marshall II. The ruling has great significance in that it allows federal courts greater authority to resolve claims arising out of estates although state courts retain their sole authority to probate a will.

Earlier this year, I reported on the case of Lillian Glasser, a wealthy New Jersey widow who had become embroiled in a multi-state legal feud (Florida, Texas and New Jersey) to determine where she should live and who should serve as her guardian. An article in today's New York Times by Tina Kelly reports that Ms Glasser has been allowed to return home to New Jersey, having expressed strong desires to be allowed to do so.

May promises to be the month that Senate Majority Leader Frist will attempt to marshall his minions to pass legislation eliminating the estate tax. If this were to come to pass, our nation's wealthiest families would be the primary beneficiaries of the new law which would free them of billions of dollars of tax liabilities. Senator Frist's own estate would save many millions of estate tax dollars (as, by the way, would Secretary of Defense Donald Rumsfeld's estate).

Estate tax confusion is the subject of an article posted on April 22 by Clark Allison in the California Estate and Business Blog. The uncertainty which has beset estate planning by the current legislation in place is seen in context with the issues surrounding the future of the estate tax in Congress. This ongoing debate seems to have little chance at this time of producing any sort of lasting compromise and the author suggests that the big losers may prove to be those of us who delay implementing a good estate plan waiting for such a compromise to be reached.

The sixth annual National Aging and Law Conference will be held from April 20 to April 23 at the Double Tree Hotel in Crystal City, Arlington Va. This will be a forum for a broad spectrum of elder law and elder care advocates sponsored by AARP together with a number of other advocacy organizations . Complete information may be obtained from the NALC website.

On March 7th, the New York Times brought us news of a new reality show from the U.K. Sir Benjamin Slade has decided to look for an heir to his 13 million dollar estate here in America. Finalists will compete for this grand prize in the course of a t.v. reality show at Maunsel House, his estate in Somerset England. Taking a leaf from Donald Trump's "The Apprentice" , Sir Benjamin plans to one-up The Donald by informing losing contestants that "you're disinherited". The last contestant standing will inherit Sir Benjamin's millions.

In January, I reported on the case of Lillian Glasser, an elderly widow from New Jersey with a home in Boca Raton Florida who has found herself to be embroiled in a bitter guardianship dispute in Texas .Fellow law blogger Professor Gerry W. Beyer has reported on the next phase of this legal odyssey in his Wills,Trusts and Estates Prof Blog Read on as poor Mrs.Glasser's seemingly never-ending story continues.

Long the butt of jokes of late night comedians,former Playboy Playmate Anna Nicole Smith has entered a new arena. The Supreme Court today heard arguments in her action to re-open her claim against the estate of her late husband J. Howard Marshall (who died at the age of 90 after a brief marriage to Ms. Smith) . The Justices seemed extremely interested in all phases of this case which truly has something to interest everyone. It involves an estate of approximately 1.6 billion dollars, allegations of a forged will and chicanery on all sides.

The worst matrimonial cases often involve bitter custody disputes which may involve not only domestic violence but also child-snatching as well. As nasty as some estate contests can be, I have always taken comfort knowing that the worst of them do not compare to a garden-variety custody fight. The case of Lillian Glasser, reported in the December 28th New York Times combines the worst features of a custody fight with the worst features of an estate fight. What could be messier than an interstate custody fight between adult siblings over a parent with a net worth of twenty five million dollars?

A quick word of advice from my fellow law blogger, Texas law Professor Gerry W. Beyers in his Wills Trusts and Estates Blog who has come across an advice columnist dispensing legal advice mixed in with her helpful hints on interpersonal relationships.
"People seeking legal advice" cautions the professor, "should consult with a lawyer, not an advice columnist."

The significance that family members may attach to relatively insignificant possessions can easily lead to huge disputes in the settling of an estate. An article by Margaret McCaffrey in the December 8th New York Times deals with this subject in humanistic rather than legalistic terms. Nevertheless, Ms McCaffrey's suggestions on how to anticipate and defuse the conflicts that can arise when adult children battle over the same item of jewelry or furniture can have a positive effect not only on the way in which family members treat each other after losing a parent or grandparent but also can reduce the chances that arguments over possessions may lead to more serious and more expensive legal conflicts.

My colleague in Florida, Juan Antunez (The Florida Probate Litigation Blog), has been reporting on a feud which has erupted following the death of Rosa Parks . Juan cites The Wall Street Journal story on November 16 which details a dispute between relatives of the civil rights pioneer and those who were handling her business affairs prior to her death.

The legal representatives named in her will have been sued by her nephew , William McCauley who has filed a petition to contest the will and to be named as his aunt's legal representative . McCauley claims that Ms. Parks lacked the mental capacity to make a will and was subject to undue influence when it was executed.

Thanks to professor of law Gerry W. Beyer's Wills,Trusts and Estates Prof Blog, I read a very interesting article originally published this past week in The Hill by Elana Schor which provides an in-depth explanation of just what Senator Frist has done (and may have been intending to accomplish) with the use of Generation Skipping Trusts (GSTs) and blind trusts to manage his holdings in his family's huge Health Corporation of America stock. Not only does Ms Schor give us a good overview of the way in which these trusts operate and the laws that enable them, but also gives political junkies like me a new perceptive on just what may be happening in the insider trading investigation currently unfolding in Washington.

By a 3-2 majority, New York's Appellate Division, Second Department has stated that same-sex partners cannot pursue an action for wrongful death in New York. Langan v. St. Vincent's Hospital, 2003-04702 was originally commenced by the survivor of a same-sex couple whose partner died after undergoing surgery for injuries suffered after having been struck by an automobile. The couple had earlier entered into a civil union in Vermont where such agreements are legal and binding.

New York State's Court of Appeals has upheld the determination of the state's Commission on Judicial Conduct that Kings County (Brooklyn) Surrogate Michael Feinberg be removed from office. This decision was handed down on June 29, 2005.