Elder Abuse is a Family Issue

People v. Marshall highlights issues in probate litigation

I’ve been following People vs. Anthony D. Marshall which is currently in trial in a Manhattan courtroom.  The case so far has been a classic illustration of allegations of elder abuse and dysfunctional families which seem to be universally present in probate litigation cases.

The National Center on Elder Abuse has estimated that two-thirds of all cases of elder abuse are perpetrated by family members.   My practical experience as a probate litigator has taught me that when there are personality conflicts among family members, especially later in life, retaliation by and between family members often manifests itself in the form of elder abuse and irregular changes to a will and/or trust.  These problems typically intensify in direct proportion to the amount of wealth at stake in the inheritance, although some of the most egregious cases occur over modest amounts of wealth.

A great example of what can happen when wealth meets the dysfunctional family later in life can be seen in the allegations and testimony thus far in the Marshall trial.  A good background of the family’s legal battles can be found in Meryl Gordon’s recent book Mrs. Astor Regrets: The Hidden Betrayals of a Family Beyond Reproach. 

Brook Astor inherited over $60 million when her husband died in 1953.   Amazingly, between then and 2003, she changed her last will and testament no less than 38 times.   Evidently, Ms. Astor detested her son, Anthony Marshall’s third wife, Charlene, and began making changes to her will at the end of her life to ensure that Charlene did not inherit any of the family fortunes. 

Prosecutors have charged that Anthony and his lawyer made changes to Ms. Astor’s last will and testament long after she had the mental capacity to understand what was happening.   There has also been evidence introduced in the trial suggesting that Marshall and his lawyer forged Ms. Astor’s name on the last will and testament so as to shift almost $200 million to Marshall and Charlene.

The defense lawyers for Marshall have tried to discredit the prosecution's case by suggesting that it was not certain that Ms. Astor was incapacitated by dementia or Alzheimer’s disease.  Some of the explanations, according to the questions presented by the defense lawyers, include the possibility that some of Ms. Astor’s apparent mental lapses were caused by dehydration, sleeping pills, or alcohol consumption. 

The trial also included testimony by an expert, who concluded in April 2001 that Ms. Astor had moderate dementia during her first visit with him, and had formally upgraded that diagnosis to Alzheimer’s by her final visit in August 2004. Another doctor had concluded in 2000 that Mrs. Astor had Alzheimer’s.

The medical testimony also included evidence confirming that dementia, generally, worsens with time.  This is almost universally true in the cases I have handled in Florida.  The key is to examine the medical records, talk with persons who interacted with the decedent, and solicit the opinion, if necessary, of a qualified medical professional to render an opinion as to whether the decedent possessed testamentary capacity at the time the last will and testament were executed.

In cases where there are allegations that a will signature was forged, it is helpful to engage the expertise of a forensic handwriting expert to examine the original document; however, courts sometimes disregard dueling handwriting experts as hired guns who will testify predictably in favor of their client’s position.

This fascinating trial and the background of the family can be found at www.nytimes.com and the bulletins posted by the American Association of Retired Persons (AARP) at www.bulletin.aarp.org.

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