Will and Trust Contests: Attorneys and the Issue of Client Capacity

Volume: 35Issue: 5

by
Kerry R. Peck

About the Authors: Kerry R. Peck is the managing partner of the Chicago law firm Peck Bloom, LLC where he concentrates his practice in Trust and Estate Litigation, Estate Planning, Administration, Guardianship and Fiduciary Litigation, and Special Needs and Alzheimer’s Disease Planning. 

Mr. Peck is a Commissioner of the ABA Commission on Law and Aging and a past President of the 22,000-lawyer Chicago Bar Association.  He is chair of State’s Attorney Anita Alvarez’s Elder Abuse Task Force and was retained by the City of Chicago Department of Aging to rewrite the State of Illinois Elder Abuse and Neglect Act. 

He co-wrote the book Alzheimer’s and the Law, published by the American Bar Association, and is a frequent speaker at continuing education seminars for attorneys and healthcare professionals across the country. 

A High-Profile Example: The Brooke Astor CaseIn 1953 Brooke Russell married Vincent Astor, known at the time as the “richest boy in the world” after inheriting an estimated $69 million after his father went down with the Titanic.  After Vincent died of a heart attack six short years later, Brooke became the sole heir to the Astor fortune.  Brooke was a well-known philanthropist throughout her lifetime, donating over $200 million of her wealth to charity over the years.  She had prepared her estate plan to continue charitable donations after her death.  Brooke Astor’s 2002 will donated a large majority of her $100 million fortune to various charities.  However, in the later years of her life, her will was amended several times to make specific provisions for her only son, Anthony Marshall. 

As Brooke became incapacitated with Alzheimer’s disease, her family and friends began to suspect that Anthony and his wife were stealing Brooke’s fortune for their personal use.  Brooke’s grandson, Philip Marshall, filed a petition to remove Anthony as Brooke’s guardian.  Nearly a dozen lawyers appeared before a New York Judge to support the removal.  After hearing evidence, the Judge appointed Mrs. Oscar de la Renta and JPMorgan Chase Bank as Brooke’s guardians.  A settlement was reached after months of arguments between the parties, in which Anthony and his wife returned some of his mother’s belongings and resigned their positions as co-executors of Mrs. Astor’s estate. 

Brooke Astor died in 2007 at the age of 105 with an estate worth an estimated $180 million.  A few months after her death, indictments on criminal charges were announced against Anthony Marshall and his lawyer. 

In 2009, at the end of a six-month criminal trial in New York, a jury convicted Anthony Marshall on 14 of 16 counts for financially exploiting his mother by first- and second-degree grand larceny, possession of stolen property, scheming to defraud, offering a false instrument, and conspiracy.  In that same trial, Anthony’s lawyer, Francis X. Morrissey, was convicted of scheming to defraud, forgery, and conspiracy. 

It wasn’t until five years after her death, in 2012, that a settlement was reached on Brooke Astor’s estate.  The settlement was based on Brooke’s 2002 will, and nullified the later amendments.  Nearly half of Anthony’s $30 million inheritance was deducted for restitution. 

What Can Attorneys Do?This is a high-profile case, which received a lot of media attention, but this situation is more common than you may think.  We see it all too often—people taking advantage of older adults with diminished capacity.  Most commonly, the accusations are of elder abuse, theft, undue influence, and forgery. 

Some of the time, these cases are initiated when the older adult is still alive and a determination of capacity can be made by a physician.  But what happens when capacity isn’t questioned until after death?  As you can imagine, this process is much more difficult.  We have to rely on medical reports (if any exist), witness testimony from friends and family of the deceased, expert witness testimony regarding the medical condition of the decedent, and even handwriting analysis.  This process can take years and can be very costly. 

As attorneys, how can we help our clients avoid a will contest?  Moreover, how do we know when to question mental capacity?  Testamentary capacity should always be addressed when your client wants to change or create a new estate plan, when a third party brings a client to your office, or when a third party contacts you on behalf of a client. If mental capacity is at all in question, enhanced formalities should be considered to protect against reasonably foreseeable future challenges.  It is sensible to consider extra documentation of mental capacity if the person executing estate planning documents is

sick, hospitalized, impaired or disabled,

unable to travel to the attorney’s office,

making a major change in a previously executed document,

physically or emotionally dependent on another person,

not a current client of the attorney who prepared the document and did

not personally arrange the appointment with the attorney, or

disinheriting a child or close relative. 

Physician determination of mental capacity can be a useful tool when a client or potential client requests preparation of estate planning documents, and that individual has questionable capacity.  Regarding testamentary capacity, the physician should evaluate a patient, within a reasonable degree of medical certainty, to determine if the patient is or is not capable of the following:

Does the patient have sufficient mental capacity and ability to know the nature and extent of his or her property? 

Does the patient have sufficient mental capacity and ability to know approximately how much his or her property is worth? 

Does the patient have sufficient mental capacity and ability to know the natural objects of his or her bounty? ( e.g., the persons who are close enough to the patient to be named as recipients of the patient’s property in a will)

Does the patient recognize and remember his or her close relatives and/or care givers? 

Does the patient understand that they can leave property to chosen persons upon his or her death? 

Does the patient have the mental capacity to form a plan in their mind? 

I would suggest having the person examined by a physician near the time the estate plan is to be signed.  Make sure the person signing can read the estate plan, or have someone read the estate planning documents in their entirety to the person, before it is signed.  If the person’s vision is impaired, print the document in large type and read it aloud. 

I also recommend that before a signing, the person should review a letter from the attorney which explains the key provisions of the document in clear, readable terms, and summarizes prior discussions between the person and the attorney.  At the time of signing, have the person identify where she is, what day and time it is, and generally describe the key provisions of the document in front of witnesses.  Use witnesses who are relatively young and stable, and are not named in the documents being signed. 

As Alzheimer’s disease is on the rise, and our population of senior citizens grows as the baby boomers are aging, there will be an inevitable increase in will contests based on lack of testamentary capacity.  We are responsible for making sure our clients are making their OWN decisions, and taking precautionary measures to assure that we have evidence of capacity, if it is questioned after death.  ■

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