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NEW YORK WILL CONTESTS

21
Jun

By Jason Stern

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What happens during a will contest?

A will is a testamentary instrument that we all should make at some point in our lives. A will directs the distribution of our possessions to the people we choose at the end of our life. As New York estate attorneys we can tell you that whether an estate is 1 million dollars or 100 million dollars human nature does not change. Unfortunately it is not unheard of for an opportunist to exert undue influence and fraud in an attempt to increase their distribution from an estate. When this occurs, Manhattan will contest attorneys get involved.

In a recent New York will contest that spilled over into Manhattan Criminal Court, the heir to the Astor fortune and his mother’s New York estate attorney were both convicted of several counts of fraud. On January 30, 2002 Brooke Astor drafted a will with her then attorney Francis X. Morrissey, Jr. leaving her son Anthony Marshall $30 million. The remainder of Brooke Astor’s estimated $150 million estate was to be left to various charities and philanthropic institutions in NYC. Suffering from Alzheimer’s and physical abuse from her son, Brooke Astor died at the age of 105 in 2007. When her will was found it contained 3 codicils (amendments) leaving the entire fortune to her abusive son, Anthony Marshall.

What started out as a New York will probate quickly turned into a Manhattan criminal investigation and New York will contest. The first step in a New York will contest is to file objections with the Court questioning the will’s authenticity. Interestingly, in this case the objectants were not questioning the will’s authenticity. The attorney general representing the intended charities was only questioning the 3 codicils to the will that were executed near the end of Brooke Astor’s life while she was suffering from Alzheimer’s. In a New York will contest the Court then directs parties to complete 1404 discovery proceedings. These proceedings afford each side an opportunity to examine and question the witnesses and circumstances surrounding the will’s execution.

Conspicuously, when directed to comply with this Court’s written discovery, Anthony Marshall, Brooke Astor’s son refused to provide the requested documents surrounding each codicil. In an unusual estate practice maneuver Mr. Marshall attempted to invoke his 5 th Amendment privilege of the U.S. Constitution. The 5 th Amendment affords protection against self-incrimination in any civil, criminal or administrative proceeding if compelled testimony might lead to future criminal proceedings. Mr. Marshall argued that since there was a pending Manhattan criminal case, the production of the requested discovery in the New York will contest would only incriminate him further in the criminal matter.

Upon review by two New York State Appellate Courts, the Courts were not buying Mr. Marshall’s arguments. The Astor Court held that the 5 th Amendment privilege, ” does NOT extend to the compelled production of incriminating documents as the Court is afforded broad discretion in supervising disclosure and its discretion will NOT be disturbed unless that discretion has been clearly abused“. In doing so the Court decided that Anthony Marshall’s 5th Amendment Privilege against self-incrimination would not be violated by the production of incriminating documents. The Court acknowledged that the incriminating documents Mr. Marshall would be forced to furnish in connection with the New York Will Contest 1404 discovery demands would lead to further criminal charges. However the Court ultimately reasoned that the 5 th Amendment Privilege only applied to testimony and not written documentation. Thus, any documents furnished by Mr. Marshall regarding his involvement with the fraudulent codicils and misappropriation of Brooke Astor’s Estate funds were not only discoverable but outside any privilege.

In the criminal trial of both Anthony Marshall and attorney Francis C. Morrissey, Jr., testimony from character witnesses such as Barbara Walters and Henry Kissenger was used to convict them both. In October 2009 both Marshall and Morrissey were convicted of over 14 counts of fraud, conspiracy and forgery and each sentenced to 1-3 years in jail. In March of 2012, Brooke Astor’s Estate finally settled the New York will contest with her son, agreeing to pay Mr. Marshall $14 million. Far less than the $30 million Anthony was left in his mother’s original will. The remainder of Brooke Astor’s Estate was distributed to each of the charities and philanthropic organizations she mentioned in her will.

Having done many successful New York will contests we can tell you that very often the perpetrator of the fraud loses in the end. Most of the time the perpetrators lose anything they misappropriated from the estate and incur considerable legal fees and aggravation in the process. The Law Offices of Jason W. Stern & Associates has vast resources and experience in dealing with these estate matters. Should you wish to speak to an experienced Manhattan will contest attorney please call the Law Offices of Jason W. Stern & Associates at (718)261-2444 for a free consultation.