A Buried Treasure: Undue Influence Exposed

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Whether its Brooke Astor, Jerry Garcia, James Brown or Anna Nicole Smith, celebrity probate disputes fill both tabloids and Court dockets. However, such dubious distinctions are not exclusive property of those having achieved stardom. Be assured that back on Oak Street, the future of the family business, the distribution of the familys wealth and the snuffing out of family relations are the sources of emotionally charged arguments staged at your neighbors kitchen table, exaggerated by rumors and innuendo at your friends wedding reception or exchanged in a string of harsh emails, stored on a jump drive, just waiting to be introduced into evidence. We must learn from the woes of souls passed that we can shape our destiny, build our legacy and protect our aura, or in absence thereof risk the carnage of probate litigation where a fractured family seeks to right the obvious wrong.

Where theres smoke theres fire, and it generally doesnt take long after ones demise for the smolder to burst into flames. It may start with a disagreement over the planning of the funeral service, the location of the burial, a church or synagogue, open casket or closed, the wording of the obituary, or a missing goblet, but make no mistake, such disagreements stand as a beacon of things to come. Expect thereafter, a surprise Will, a newly inked Will, a missing Will, or an outdated Will being offered for probate. A recently changed beneficiary designation form, odd financial transactions or alleged gifts will follow.

Allegations of promises made and promises broken are proffered as a new lawyer enters the scene, and family members scramble to fight fire with fire. A caveat blocking the Will from being admitted into probate may be filed, and an order to show cause seeking to vacate the Caveat then docketed by the Courta lifes journey on Trial subject to a discovery schedule, expert reports, motion practice, briefs, mediation and a Trial, all seeking to find the truth which now lies buried – a treasure never to be found but judicially constructed.Attorneys

will argue before a Chancery Judge that undue influence existed because the loved one, in their waning days, lacked free will and was subject to the stronger will of a second spouse or a child. That the now deceased family member yielded to the will of another for the sake of peace, or lacking the energy to push back, or was coerced into changing his or her Will.

A word of caution, Anthony Marshall, who was accused of influencing his late philanthropic mother, Brooke Astor, into changing her Will in his favor, now awaits sentencing for his part in pilfering the Astor fortunes. Respect the Will of another, but should you smell smoke, act promptly as the fire spreads quickly.

Russell J. Fishkind, Esq. is a partner at the Law Firm of Saul Ewing, LLP and an Associate Adjunct Professor at New York University where he teaches estate planning. He is the author of Legacy of a Lifetime, a layman’s guide to understanding estate matters and is co-author of J.K. Lasser Pro’s Estate & Business Succession Planning A Legal Guide to Wealth Transfer.

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