The eyes of New York -- and much of the rest of the world -- have been closely watching the will contest trial over Brooke Astor's last wishes. But, unlike most will contests, this one has much more at stake than who will inherit Brooke Astor's millions. Her son and her former lawyer are criminally charged with forgery, fraud, grand larceny, possession of stolen property and falsifying business records, among other crimes. Prosecutors allege they conspired to convince Astor to change her will to redirect some 60 million dollars from charities to her only son Marshall.
Brooke Astor was considered the Queen of New York society until she died at the age of 105 on August 13, 2007. She left behind an estate and trust with a combined value estimated at almost 200 million dollars, but only after devoting much of her life to charity. Her motto was "Money is like manure; it's not worth a thing unless it's spread around." The New York Times called her the First Lady of Philanthropy.
It was no surprise that her last will (number 31 in her lifetime) in 2002 left much of her vast wealth to charity. But prosecutors are more interested in the changes to her will -- called codicils -- that began in December, 2003. The first codicil (which is not challenged by prosecutors) was prepared by Astor's long-time estate planning attorney, Henry Christensen III. It did not change who received what -- but did give Marshall the authority to decide which charities were to benefit.
Interestingly, when Christensen prepared this first codicil, he titled it "First and Final Codicil", which is odd because it is impossible to predict when a codicil is done whether it will be the last. It is also very curious that Christensen believes Astor was competent to sign this codicil in December, 2003, even though he felt she was frail, under stress, declining, and only made that change due to "incessant pressures" from Marshall for more money.
In fact, Astor was diagnosed with Alzheimer's disease back in 2000, And Marshall himself wrote a letter to her doctor in December, 2000, detailing Astor's symptoms of the disease.
Yet, prosecutors do not challenge that first codicil of December 2003, or any documents that came before. They focus on the codicils that followed (along with some valuable artwork taken by Marshall previously, which they also believe was illegal).
Likely, the reason is that, as of that time, the will and trust provided that most of the $60 million in dispute was ultimately still going to charity. Marshall was to receive seven percent, per year, from the $60 million and charity would receive what was left when he died. With prudent investing, this meant the entire $60 million could have remained, even with the substantial yearly distributions to Marshall.
While he was already wealthy and estranged from his children, the 85-year old Marshall reportedly wanted someone else to benefit after he passed. Namely, he wanted to benefit his wife, Charlene, who is 20 years younger than Marshall. Astor had made significant changes in her estate planning documents in prior years to make sure that Charlene did not inherit her wealth (even Marshall's lawyers admit that Astor did not like Charlene).
Prosecutors allege that Marshall and his co-conspirator, lawyer Francis X. Morrissey, Jr., schemed to coerce Astor to change her will so Marshall could control the $60 million and pass it along to Charlene when he died. The pair arranged for a different estate planning attorney, G. Warren Whitaker, to prepare a new codicil to the will.
On January 12, 2004, Astor signed the second codicil, which gave Marshall the authority to leave all of $60 million to whomever he wanted when he passed, instead of to charity. In other words, this meant Charlene. Whitaker recounted the meeting when he sat with Astor while she read and signed this second codicil. During the meeting, Whitaker says he told her it meant Marshall could leave the money to Charlene, and Astor responded with "good" or "that's fine." She also asked if Marshall and his wife were happy in bed.
The second codicil also replaced Christensen as Astor's executor, and named Morrissey in his place. This change meant future fees worth millions for Morrissey.
Yet the pair still weren't satisfied, apparently. In March, 2004, a third codicil was signed, that directed all of Astor's real estate to be sold and added to the $60 million pot at her death. Only Morrissey and two aides were present when Astor signed this document.
While will contest cases like this one are frequently brought in probate and other civil courts around the country, it is very rare for one to occur in a criminal court. Why is it rare? Cases like this are hard to prove without very compelling evidence, and the burden of proof in criminal court is much higher than in a traditional lawsuit or probate proceeding where money -- not someone's freedom -- is at stake. "Beyond a reasonable doubt" applies in criminal court, not in probate or civil proceedings.
Further, prosecutors seldom have the time, resources, or inclination to try to put together a case of fraud, forgery or similar claims for a will contest case. For them to do so in this case, and commit themselves to a trial lasting months, they must have been very confident in the case.
Of course, they do have powerful evidence on their side (including Astor's Alzheimer's and Marshall's letter about her condition from 2000). It is also very odd that the second and third codicils were done in such relaxed manner.
When dramatic estate planning changes are done with someone elderly, especially one who has already been diagnosed with Alzheimer's disease, any good estate planning lawyer would only allow the document to be signed with substantial evidence documenting the person was competent to do so that day. At the very least, this means the lawyer must thoroughly question the person, including what is commonly known as a "mini-mental evaluation". This probes a person's knowledge of things such as the date, time and place, who is the president, and many questions of memory and comprehension that most adults would easily answer correctly.
In even more questionable cases with substantial dollars on the line -- like this one surely was -- a good estate planning attorney would go the extra mile of having a doctor evaluate the person on or near the date of signing. Ideally, they would also videotape the meeting where the will or codicil was executed to prove the person knew what he or she was signing. The extensive coverage of this case by the New York Times makes no mention of any of this being done.
On the other hand, the prosecutors still have a difficult task ahead of them. They have to prove that Astor either didn't comprehend what she signed that day, or that she was tricked into it by Marshall and Morrissey. But the prosecutor were not there when it was signed. Neither were the judge or jurors. The law focuses on Astor's mental state the moment of signing, and people with Alzheimer's disease have good moments and bad, lucid conversations followed by ones marked by confusion.
Plus, her longtime lawyer felt she was competent just a few weeks before when she signed the December, 2003 first codicil -- and he's clearly on the prosecutor's side. Did she have that dramatic of a decline in just a few weeks? And the defense is quick to point out that Astor gave a speech at the Knickerbocker Club weeks after she signed the January, 2004 second codicil, which is hard too do when someone is incompetent.
In other words, from my view of the case from afar, I do see some doubt. Is it enough "reasonable doubt" for Marshall and Morrissey to go free? We'll see.
As any experienced probate litigation attorney knows, you can never predict what a jury will decide in a hotly-contested will contest case, especially before all the evidence has been presented. In the meantime, it sure is an interesting case to watch.
[This article is based primarily on information from a series of New York Times articles covering the case, which can be found here].
Posted by: Author and probate attorney Andrew W. Mayoras, co-author of Trial & Heirs: Famous Fortune Fights! and co-founder and shareholder of The Center for Probate Litigation and The Center for Elder Law in metro-Detroit, Michigan, which concentrate in probate litigation, estate planning, and elder law. You can email him at awmayoras @ brmmlaw.com.Follow us on Google+