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Undue influence battle over artist's $40 million estate

Massachusetts artist Mary Kass lived in a modest house in Provincetown.  Few realized that the unassuming Kass owned an extraordinary art collection with works by Matisse, Renoir and Picasso.  In fact, her Estate is said to be worth at least 40 million dollars and as much as 60 million.  She died at age 78 on March 12, 2009. Mary Kass

Divorced and without children, Kass left a will and trust leaving her assets to charity, friends, and a niece and nephew.  She bequeathed her art collection to the National Gallery of Art in Washington.

But the niece and nephew, Catherine Mason and Thomas Berger, weren't satisfied with receiving one million dollars each.  They alleged that Kass' friend and caregiver, Elizabeth Villari, exercised undue influence to convince Kass to leave her valuable property and name her as co-trustee of her vast estate and trust.  They are asking the probate court to set aside her 2004 will and trust, claiming that Villari took advantage of dementia and convinced Kass to change her mind.  Her 1992 will left nothing to Villari, the museum or any charities.

Interestingly, this isn't the first time Mason and Berger have made allegations of this nature against Villari.  In 2005, they filed guardianship proceedings over Kass, claiming even then that Villari was taking advantage of her reduced mental capacity.  Villari opposed it and said Kass was still competent.

The probate judge held a 10 day trial which was described in the Boston Globe as a "knock down, drag out fight."  The judge found that Kass was, indeed, in need of a guardian.  But, Villari was named as one of the guardians (along with a local attorney).

In other words, neither side prevailed in full.  We'll have to see what the outcome is this time.  Villari, Mason and Berger are joined in the feud by Merrill Lynch, the named co-trustee.  Merrill Lynch is asking to take control of the estate and exclude Villari from being involved.  The case is due in court on June 19th. 

In my Michigan probate litigation practice, I often see guardianship battles evolve into will or trust contests.  The lines between competent and incompetent, free will and undue influence are often quite narrow.  In cases of dementia, where elderly people have good days and bad, it is especially difficult.  Whether the battle centers on caring for a senior or trying to determine what the true wishes were, it's important for those involved to work with experienced litigation attorneys who specialize in probate cases. 

These disputes are too emotional, expensive and important to those involved to take a chance.

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.