The Probate Lawyer Blog

One of Hollywood's most famous entertainment spots has sparked what may be a very bitter and ugly family fight in court. 

Comedian Pauly Shore filed a lawsuit claiming that his brother, Peter Shore, has been using unscrupulous behavior and committing undue influence over their 79-year old mother, Mitzi Shore.  Mitzi suffers from Parkinson's disease and other neurological problems.  Reportedly, she's been in the care of Peter (Pauly's older brother), but Pauly has grown increasingly concerned for her well-being, according to his lawsuit filed earlier this month in the Los Angeles Superior Court. 

Pauly, Peter and their mother were, until recently, the three directors of The Comedy Store, one of Hollywood's most famous comedy clubs.  It's featured distinguished comedians such as Johnny Carson, Richard Pryor, Redd Foxx, George Carlin, and Robin Williams (and -- even better -- it's reportedly haunted by a ghost that plays pranks).  Mitzi won the club in a divorce in 1973 and has owned it ever since.

Anthony Marshall and the attorney he conspired with, Francis Morrissey, each received jail sentences earlier this week for 1 to 3 years.  They had been convicted of looting Brooke Astor, Marshall's mother, out of $60 million by convincing her to change her will when she was mentally unable to comprehend it due to Alzheimer's disease, along with related crimes. 

Marshall's attorneys had pled for leniency, citing his advanced age, poor health and doctors' reports saying any jail time would equate to a death sentence for him.  The Probate Lawyer Blog covered the defense lawyer's efforts in this recent article.

The judge wouldn't hear of it.  He noted how sad it was that a life of extreme abundance led to such sadness, particularly when Marshall's own son took the stand and "tried very, very hard to destroy" Marshall.

The judge did consider that Mrs. Astor loved her son, the judge felt, along with other mitigating factors, so he did not impose the 4 1/2 years that the prosecutors requested.  In fact, the judge said he actually preferred a different sentence.  He wished he could cause Marshall's many millions to be donated to charity and leave Marshall in the hands of his wife (for whom he committed the crimes, the judge said) to care for him -- without his money.

Anyone who's ever been through a court battle over a trust or estate knows how important it is for everyone involved.  But some cases carry more importance than others.  The recently-resolved case of Cobell vs. Salazar has as much importance to our nation as any trust fight has ever had.

Elouise Cobell is the lead plaintiff in a class action suit against The United States Secretary of the Interior.  The lawsuit involves the rights of Native Americans under Individual Indian trusts that began under laws passed in 1887.  At that time, tribal lands of Native Americans were parceled out by the government and assigned to individuals, in lots between 40 and 160 acres in size. 

But the individual Native Americans weren't allowed to actually own the land.  The government did, leasing the lands for mineral and grazing rights, among other uses, and paying the proceedings into a series of informal trusts.  The United States Secretary of the Interior was charged with administering the trusts for the benefit of the individuals who were assigned to each parcel. 

It's been almost a year since The Probate Lawyer Blog featured a story on the court battle over whether the heiress to the L'Oreal fortune has been a victim of fraud and exploitation.  87-year old Liliane Bettencourt has been called Europe's richest woman.  In the article I wrote last December, I explained how Bettencourt's daughter, Francoise Bettencourt Meyers, sued to prove that a celebrity photographer had received gifts from the elder Bettencourt of more than one billion dollars by preying on her mental frailty. 

The gift recipient, Francois-Marie Banier, and Bettencourt said she was competent and made the gifts of her own free will because they were dear friends.  And yes, they said, it's a lot of money, but considering her fortune has been recently valued at $13 billion (U.S. value) by Forbes, it's not that much money.  (Anyone buy that?)

I had suggested last year that I found it odd that Meyers hadn't started a guardianship proceeding to have her mother declared legally incompetent.  Well, now she has tried that, but the effort failed because Bettencourt refused to submit to a medical evaluation of her mental state, even though a doctor who reviewed her medical records apparently felt she needed a guardian (that doctor's report is what Meyers relied on for her guardianship filing).

Tom Carvel was the creator of soft serve ice cream and one of the founding fathers of the franchise system in America.  When his ice cream truck suffered a flat tire in New York in 1934, he sold his melting ice cream from a parking lot.  Those humble beginnings led to the first soft-serve ice cream store and eventually grew into the Carvel ice cream chain with 850 locations.  Carvel died in 1990 at age 84, with a fortune conservatively estimated at around $80 million.  The legal fighting started soon thereafter.  And it hasn't stopped yet.

The battles have passed through federal courts in three states, along with state courts in New York, Florida, Delaware, and even England (not New England ... England!).  Reportedly, legal fees and commissions have already cost the Carvel financial legacy more than $28 million. 

On one side was Pamela Carvel, Tom's niece.  She helped Tom's widow, Agnes, through years of court battles until she passed in 1998 at age 89.  In fact, the pair lived together in London -- trying to escape the heartache caused by years of fighting and seeking some peace for Agnes in her final years.

On the other side were two longtime employees of Tom Carvel -- former secretary Mildred Arcadipane and attorney Robert Davis.  At least, they were fighting until they too passed away in (one in 2002 and the other shortly thereafter). 

Here's a short video trailer to give a taste of what the new book, Trial & Heirs:  Famous Fortune Fights!, is all about:

[If it doesn't play for you, visit Trial & Heirs to see it there]

We wrote this book to give families a way to have the difficult conversations about estate planning that are so hard for people.  No one likes to talk about what will happen when someone dies.  So they put it off, procrastinate, and suddenly it's too late.

With celebrity stories, not only can you start these conversations, but you can get your loved ones to actually do the proper planning.  For example, Michael Jackson didn't use his trust properly and it led to a long fight in court that could have been avoided.  Princess Diana undermined her own will by using a letter of wishes the wrong way.  And everyone knows about the disastrous legal battles involving Anna Nicole Smith. 

We use these stories, and dozens more, along with easy-to-follow education and practical tips to avoid family fights, so your families don't end up the same way.  The book is now available at http://TrialAndHeirs.com. 

Posted by: Andrew W. Mayoras and Danielle B. Mayoras, co-authors of Trial and Heirs: Famous Fortune Fights! and co-founders 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. Andrew and Danielle are husband and wife attorneys, professional speakers and consultants across the country.

The Brooke Astor trial was a fascinating portrayal of greed and exploitation involving New York's upper, upper crust society.  You can read The Probate Lawyer Blog's coverage of the Brooke Astor case here.  Brooke Astor's son, Anthony Marshall, and one of her attorneys, Francis X. Morrissey, Jr., were convicted of fraud, larceny, conspiracy and a host of related charges related to management of her financial affairs and changes to her will that occurred after she was diagnosed with Alzheimer's disease.

Because of this, Anthony Marshall, who is 85 years old, faces up to 25 years in jail.  But whether he actually sees any jail time is a big question.  He will certainly appeal the verdict and his lawyers will pull out every trick in the book to try to keep the millionaire from seeing the inside of a jail cell.

In fact, they've already started.  A few days ago, the Associated Press reported that Marshall's attorneys filed a request asking the judge to dismiss the charges "in furtherance of justice".  They say his condition is so frail (following quadruple bypass surgery, a stroke, and suffering gastrointestinal disease) that any jail time would be tantamount to a death sentence, because he would not survive it. 

To support the request, they supplied 70 letters of support and doctor's reports.  The letters attest to his good character and even include ones written by Whoopi Goldberg and Al Roker.  They point to his otherwise clean record and say he's suffered enough.

So what do you think?  Has the 85-year old been punished enough through the 5-month trial and guilty verdict that he doesn't deserve jail time?  This was a non-violent crime, should he forced to go to prison when it may kill him?

I for one believe he should go to jail.  His conviction sends a message that those who exploit the frail and elderly can be punished.  If he is allowed to get off because of poor health and wealthy friends, what kind of message does that send? 

A jury carefully deliberated for 12 days and found him guilty of almost every count.  If a judge throws that out, not because of the evidence, but because he feels sorry for Marshall,  why even have a jury trial?  This type of legal maneuvering rarely works.  Otherwise, the criminal justice system wouldn't function. 

If Marshall's effort fails, he is scheduled for sentencing on December 21st.  And, to top it off, this is not the only legal worry he has resulting from the case. 

Others (most notably, his own son) had previously started will contest proceedings to challenge Brooke Astor's estate planning documents, which left increasingly higher amounts to Marshall as she continued to age (she was 105 when she passed).  The civil case was put on hold when the criminal case started.

But now, it's swinging back into action.  Lawyers held a private meeting this week to discuss the case in advance of the next court date, January 13, 2010.  While the criminal case determined that Ms. Astor's most recent will amendments were invalid (meaning that those documents will be set aside with ease in the civil case), prosecutors did not focus on earlier documents which are under attack now.

In other words, Marshall may lose more than the $60 million that was affected by the will codicils that have already been found to be invalid by the criminal jury.

Marshall certainly cannot handle another protracted legal battle, physically and maybe even financially.  There's a good chance that this case will settle -- that's probably what this lawyers' meeting was all about.

So we'll continue to keep a close eye on this case.  Hopefully others who would seek to take advantage of someone elderly (a growing problem in this country, especially with this economy) will think twice because of cases like this one.

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.