Testamentary capacity and undue influence in criminal proceedings
By Saul Elnadav
2009 06 24
An article in Monday’s New York Law Journal raised the interesting question of whether a criminal trial is the best place to get to the bottom of issues surrounding Brooke Astor’s estate.
The case has all the hallmarks of a classic will contest. Anthony Marshall, Brooke Astor’s son, is accused of taking advantage of his mother’s dementia to divert assets from her estate to himself by influencing her to amend her will. The matter is now the subject of a criminal trial in State Supreme Court in Manhattan, but the issues – testamentary capacity and undue influence, among others – are most often seen in Surrogate’s Court.
It’s not just a question of which forum the case is tried in. The issues involved can get very sticky when applied in the real world. Family dynamics are always nuanced. When elderly parents, particularly those with diminishing mental capabilities, rely on their children, are the children being helpful, are they being controlling, do the parents feel controlled? What goes on outside of the earshot of the lawyers preparing the will? In the Astor case, the lawyers themselves are alleged to be part of the problem.
I noted earlier that whether someone has testamentary capacity is not a simple yes or no. Someone can suffer with Alzheimer’s disease and lack testamentary capacity, but wake up one morning with a clear mind and sign a will. The will may be valid, but proving capacity is another matter entirely.
These issues frequently arise in will contests, and Surrogate’s Court has the expertise to deal with them. A criminal fraud and conspiracy trial, on the other hand, may not be the best way to untangle what exactly was or was not on Brooke Astor’s mind when she signed the amendment to her will. In this particular case, the drama involving the so-called “doyenne” of New York society and her son, the cameo appearances of famous people like Henry Kissinger and Barbara Walters as witnesses, and news, blog and tabloid coverage (in no particular order), will certainly compound the difficulties of a careful analysis of the issues.
But there’s another important consideration. Unlike Supreme Court, Surrogate’s Court can’t impose criminal sanctions. It can order Anthony Marshall to return assets, but it can’t send him to prison for committing fraud. According to a former prosecutor quoted in the Law Journal article, “as the problem of elder financial abuse has gotten more serious, the courts have recognized that the penal law must be read more broadly to fully fulfill its purpose.”
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