Amy Winehouse Didn't Have A Will After All, But Did Have Millions
Archie Comics Power Struggle Teaches Lesson On Succession Planning

Brooke Astor Estate Settlement: Marshall Gets His Just Desserts

News broke recently about a global settlement involving the estate of Brooke Astor.    The renowned New York society queen and philanthropist, who died at age 105, left behind an estate of nearly $200 million dollars.   Brooke Astor 2

Astor’s assets — along with the $50 million charitable trust of her late husband — have been tied up since she passed in 2007.  The fighting was so extensive that it dragged in a “who’s who” of top New York City institutions, including the Metropolitan Museum of Art, Carnegie Hall, the New York Public Library, Rockefeller University, and even the United Nations, among many others.

Under Astor’s 2002 will, her only son, Anthony Marshall, stood to inherit tens of millions of dollars, with most of it slated to pass to charity after he died.  But Marshall wanted much more.  He and a lawyer,  Francis X. Morrissey, Jr., convinced the elderly Astor — when she was suffering from dementia — to sign a series of codicils to Astor’s 2002 will.  These codicils would have allowed Marshall to leave much of Astor’s fortune to whomever he wanted (specifically, his younger wife, whom Astor reportedly detested) instead of to charity.

Unlike most court fights over whether changes to a will are valid, this fight led to criminal prosecution.  After a six-month trial in 2009, Marshall and Morrissey were found guilty of grand larceny, fraud, and a host of related charges.  Marshall, who is now 87, has not seen any jail time yet because of his pending appeal, despite a sentence of one to three years in jail.

The criminal trial did not end the fighting, of course.  Since 1997, Astor signed a total of eight wills and codicils, so sorting out which documents were actually valid was no easy task.  That job fell to the lawyers representing the various parties and the assigned Judge from Surrogate’s Court for Westchester County (Surrogate’s Court is what New York calls its probate court system).  With dozens of charities involved, along with Astor’s grandchildren and great-grandchildren and the New York Attorney General, the process of determining which documents were invalid due to mental incompetency or undue influence was complex.

It took two and a half years of negotiating, after the criminal verdict was hounded down, for the parties to reach the global settlement that was accepted by the Judge on March 28, 2012.

Ultimately, the settlement documents reveal that Marshall caved in, rather than continuing to fight.  Given how poorly the criminal trial went for him, this was no surprise.  But how little Marshall is left with at the end of settlement is telling.

The settlement provides that Astor’s 2002 will is accepted as the valid one, but not the three codicils to that will that came afterwards.  Under this will, Marshall would have a received quite a lot.  It left him two pieces of real estate that sold for $28.5 million (and were originally valued at much more), $5.3 million in cash, plus another 7% interest per year on a $60 million trust fund, for the rest of his life.  That would have meant almost $20 million in the several years since Astor died, plus another sum that would have been potentially more than that if Marshall lived past the life expectancy of an 87-year old man (another 4.5 years from now).

In total, this would have likely meant a gross sum of more than $70 million, reduced by his pro-rata share of the estate taxes on the real estate portion alone.  The will only required Marshall to pay the estate taxes attributable to the value of the real estate.  Had the real estate been sold promptly in 2007 or 2008 after Astor passed, before the real estate bubble burst, the properties likely would have netted as much as $30 million, even after paying estate taxes.  They were initially listed for sale for a combined $58 million.

In other words, without all the fighting (which delayed sales of the real estate), under the 2002 will alone, Marshall would have likely brought in close to $70 million.  Even with the lower real estate sales, the Attorney General’s office stated in its press release announcing the settlement that Marshall’s share would have been $31 million.

So how much did Marshall walk away with?  Less than $3 million.  While he officially accepted $14.5 million, Marshall already has outstanding judgments against him for legal fees of $11.6 million. Plus, his legal fees are still accruing through his criminal conviction appeal.  Part of the reduction down to this amount included $12.3 million paid to the Manhattan District Attorney’s Office as restitution, for the costs spent prosecuting Marshall.

Other than a million to each of Astor’s grandsons, and lesser amounts to great-grandchildren and others close to Astor, the large bulk of the fortune will now pass directly to New York charities.  Unlike what would have happened if the 2002 will was upheld in its totality, they won’t have to wait until Marshall dies to receive the generous bequests.  On the other hand, the entire estate has been greatly diminished by legal fees that would not have been necessary if things had been handled as Brooke Astor intended them when she signed her 2002 will.

Should anyone feel sorry for Marshall?  The 87-year old has been disgraced, defeated, denied almost all of the generous bequests his mother wanted him to have, and he still has a one-to-three year jail sentence hanging over his head — if he is still alive after the appeal process, that is.

His son, Philip, appears to feel sorry for his father.  Philip was the person who filed for guardianship over his grandmother, exposing his father’s greed and mistreatment of Astor.  Philip testified against his father during the criminal trial.  He blames Marshall’s wife, Charlene, whose greed and control over Marshall led to the chicanery with Astor’s estate.

Even if Philip’s belief is true, no one should feel sympathy for Marshall. Marshall chose his path.  Exploitation of elderly citizens in our country is a mostly-silent epidemic.  One study pegged the annual cost of seniors exploited out of money to be as high as $5 billion.  That’s each and every year.  Too many of those who take advantage of seniors are never caught.

Sadly, seniors — even those with only a small home and modest retirement account — are often tempting targets for greedy family members, caregivers, or others.  It seems so easy to convince someone whose mind is stricken with Alzheimer’s disease or dementia to change their will, trust, deed, or bank account.  But it can be difficult to fight the changes because undue influence and other forms of exploitation are sometimes hard to prove.  Many times it’s not even discovered, much less challenged in court.

Criminal prosecution of offenders like Marshall are extraordinarily rare.  How many prosecutor offices have the time, money and resources to devote even a small fraction of what was invested to bring Marshall to justice?  If not for Brooke Astor’s high-profile status in New York, they likely would not have tried to do so, even in this case.

Marshall serves as an example that there is a cost to wrongly convincing seniors to change their final wishes.  He should pay the ultimate price.  So many others escape justice because the victims are often of questionable competence, closing in on death, and unable to speak for themselves.

So it is fitting that, after paying his lawyers, Marshall will likely have nothing left.  He could have received $70 million or more, just by being a good son. Instead, he — possibly at the direction of his wife — let greed overcome him.

It can happen in your family too.  If you, or someone you know, find yourself in a situation where you feel that someone took advantage of an elderly loved one to coerce a change to an estate plan or otherwise exploit them, you cannot afford to sit back and hope that criminal prosecution will right the wrong.  You should speak with an experienced probate litigation attorney and see what options you have to honor the true wishes of the loved one who was victimized.

Our book, Trial & Heirs:  Famous Fortune Fights!, uses the Brooke Astor and other celebrity estates to educate about wills, trusts, estates, and how to protect your family from an estate battle.  We also offer tips to help families who are facing probate fights like this one.

Don’t let your elderly loved ones be victimized like Brooke Astor.

By Danielle and Andy Mayoras, co-authors of Trial & Heirs: Famous Fortune Fights!, husband-and-wife legacy expert attorneys, and hosts of the national television special, Trial & Heirs:  Protect Your Family Fortune! For the latest celebrity and high-profile cases, with tips to protect yourself, your loved ones, and your clients, click here to subscribe to The Trial & Heirs Update.  You can “like” them on Facebook and follow them on Twitter and Google+.

For legal help in Michigan, visit Andy and Danielle's law firm's websites, The Center for Elder Law and The Center for Probate Litigation.