Taxation & Estate Planning

Astor trial as example of probate litigation morphing into criminal prosecution

By Juan C. Antúnez

The Manhattan district attorney's office's elder abuse unit is prosecuting Anthony Marshall (the only son of Brooke Astor, a grande dame of New York society who died in August 2005 at 105 leaving an estate valued at $132 million, in addition to a $60 million trust) of exerting undue influence upon his mother when she was diminished by Alzheimer's disease to persuade her to sign a codicil to her 2002 will that made Marshall the outright heir of her residuary estate instead of having it pass ultimately to charities. This is a will contest, pure and simple. Unfortunately, it's being litigated as a criminal prosecution. As reported in Lawyer, Socialite Astor's Son Stole Millions Intended for Charity, DA Says, Marshall - who is 84 - is effectively looking at spending the rest of his life behind bars if he loses this trial:

Marshall is named in 16 counts charging him with crimes such as a scheme to defraud, grand larceny and conspiracy. He faces a maximum sentence of 8 1/3 to 25 years if convicted of first-degree grand larceny, the most serious of the 16 counts he has been charged with.

As our population ages, I suspect more and more local prosecutors will feel compelled to prosecute what are essentially inheritance disputes as criminal matters. Whether you think this is good or bad public policy is almost beside the point; it's a fact of life we'll have to deal with. Which means probate litigators will need to start teaming up with criminal defense attorneys much more frequently, advise their clients to "plead the 5th" at the first hint of trouble [click here], and consider what steps they as lawyers need to take to avoid becoming prosecution targets themselves [click here].

Full post as published by Florida Probate Litigation Blog on May 14, 2009 (boomark / email).