Mile High Litigation

Pat Bowlen was the long time owner of the Denver Broncos. He died this past June of Alzheimer’s Disease. He created a trust in 2009 to hold and operate the Broncos.  In 2013, he stepped away from the team and turned control of it to the three trustees.

The trust provides that the trustees will pick one of his 7 children to operate the team. The trustees are reported to have selected his 29 year old daughter, Brittany. Meanwhile, his two daughters from his first marriage have filed suit challenging his competency to execute a trust in 2009 when he was allegedly exhibiting signs of Alzheimer’s in 2006. The trust has a no contest provision which would cause the eldest daughters to lose their entire share of the trust by contesting it.

Several points:

1. Bowlen could have been suffering from Alzheimer’s while still having the required capacity to sign a will and trust i.e. know his assets, his heirs, and what his planning accomplishes.

2. Call it a hunch, but if Bowlen was incapable of managing his affairs, the NFL would not have permitted him to run the Broncos until 2013.

3. It is hardly a news flash that a trust dispute pits children from a first marriage against children from the second marriage.

4. If Bowlen’s daughters wish to show their father was incompetent in 2009, they should point to the drafting of Tim Tebow in the first round by the Broncos.

Photo Credit:  Joe Amon for the Denver Post
License:  Fair Use/Education (from linked article)

(Not) Gentle on His Mind

After Glen Campbell died last year of Alzheimer’s disease, his fourth wife of 35 years presented a will to the probate court which excluded his 3 children from his second marriage. The will, which was executed in 2006, did provide for his wife and all of his children from his first, third, and fourth marriages. Naturally, his excluded children are contesting his mental capacity to execute the will.

Several brief points:

1. Campbell’s disinherited children will have to prove that Alzheimer’s caused him to forget that they were his children, or to harbor animus to them.

2. Their case will be difficult to prove because the will was executed five years prior to him telling the public that he was suffering from Alzheimer’s.

3. Their case will be doubly difficult because Campbell’s 2001 will also excluded them.

4. As a general rule, if you want to inherit from your father, do not sue him while he is alive (as they were alleged to have done over publishing rights).

Photo Credit:  Calli Shell for The Tennessean (in linked article)
License:  Fair Use/Education

#MeToo (#SheWasFirst)

William Agee was a boy wonder corporate exec in the late 70's and early 80's when he helmed Bendix Corporation. Mary Cunningham was a Harvard MBA grad voted most likely to be CEO of a non-cosmetics company. She spurned job offers on Wall Street to work for Bendix as Agee's personal assistant before being promoted to Vice President. They eventually divorced their spouses and married each other while ignoring rumors that Cunningham had "slept her way to the top."

After Agee's several failed business deals reportedly undertaken under Cunningham's advice, Cunningham became known as the Yoko Ono of finance. They settled in Napa Valley where Cunningham acquired the moniker of "Tomato Lady" for growing special tomatoes.

Six weeks before he died, Agee, reportedly suffering from dementia, changed his will to leave half his assets to his children from whom he had been estranged for 35 years. He also filed for divorce from Cunningham and named his daughter as his health care power of attorney. His last communication with his wife was via Face Time from Seattle. Cunningham is challenging the will although it does not matter because most of his assets were in his trust which was unchanged before his death.

A few points:

1. A will change six weeks before death to benefit children who have been estranged for 35 years will always generate questions of competency..

2. If Agee changed his will prior to his death, he should have also changed his trust if his assets were titled in the name of the trust.

3. Yoko Ono of finance? Tomato Lady? Music fans could only wish that Yoko Ono had grown tomatoes instead of creating unlistenable music and breaking up the Beatles.

Photo Credit:  Mary Moritz for the New York Times

License:  Fair Use/Education

Bad Mom

Ken Thompson was the Brooklyn District Attorney who died of cancer in October.  Two weeks prior to his death, he allegedly changed his will to omit any bequest to his mother and instead left his estate in trust for his wife and 2 young children.  

His mother is contesting the will alleging that he did not know what he was doing due to his illness.  As support for her theory, she argues that Thompson was unhappy with his marriage because of the amount of money his wife was spending.

Three quick points:

1.  It is anything but unusual for a man with young children to leave his entire estate to his wife and children.  Providing for a mother is what would be unusual.  

2.  The creation of trusts to assist his wife with financial management of the inheritance shows mental clarity not lack of mental capacity.

3.   If Thompson was unhappy with his wife’s spending, he is in the majority of husbands.

                                         License:  Fair Use/Educational Purpose
                                         Copyright Alex Rudd/NY Daily News

One Disinherited Ex-Girlfriend

The reports of a settlement between Sumner Redstone and Manuela Herzer over her replacement as his health care proxy were premature. There actually was a brief trial over the dispute which ended with the judge dismissing Herzer's suit to remain as his health care decision maker. The judge relied on a 7 minute deposition of Redstone in which the few intelligible sentences he uttered were "Manuela is a ****ing bitch" (twice) and "I want Manuela out of my life. Yeah." Of course Herzer's attorneys have vowed to appeal.

Several points:

1. This case remains about Redstone's will which he changed at the same time as his health care power of attorney. Herzer was reportedly to receive $70 million at his death.

2. Herzer, who smartly declined an offer of marriage from Redstone, has reportedly received $75 million in gifts from him while the woman who did become his second wife only received $10 million because she signed a pre-nup.

3. While Redstone, like the recently deceased Prince, believes he will live forever, at least he has planned for his death by having a will and various trusts.

Daddy Knows Best (And His Daughters Are Resentful)

Following up on the most recent post.  The 21 and 17 year old daughters of Maurice Laboz, who left them each $10 million in trust but provided that they can receive the funds earlier if they meet certain conditions, are reportedly going to court this week to challenge the list of conditions. Their mother is also set to contest the will of her estranged husband.

Several quick points:

1.  As stated ad nauseam here, the grounds for contesting a will or trust are two:  lack of mental capacity or undue influence.  The detailed conditions imposed by Mr. Laboz show a clarity of thought which rules out lack of mental capacity.

2.  Infrequently, the terms of a trust can be challenged because they are against public policy such as when a trust prohibits a beneficiary from marrying a person from a different faith or race.

3.  Rather than being against public policy, some would argue that it is good public policy to keep millions out of the hands of 21 and 17 year old beneficiaries.

4.  Others would also argue that it is good public policy to prohibit teens and 20-somethings from adding to the national tattoo epidemic.

Let's Litigate Two!

In playing his entire Hall of Fame career for the Chicago Cubs, Ernie Banks became the most famous and beloved player in Cubs history.  At the time of his death last month, he had been estranged from his third wife for 7 years.  He revised his will several months before his death to leave all of his assets to his caregiver of several years and to nominate her as his executrix.  His sons are questioning the validity of his will while his ex-wife has gone to court to prevent the caregiver from cremating his body and spreading his ashes in Wrigley Field.  His sons and estranged wife both allege he was suffering from dementia prior to his death.  The funeral home which handled his funeral and the cemetery where he was supposed to be buried both state that they have no knowledge about the location of his body.

Three quick points:

1.  A will revised by an individual immediately prior to death which leaves assets to a care giver instead of children is ripe for contesting on the grounds of both lack of mental capacity AND undue influence.  I doubt this will work out in the favor of the care giver.

2.  It is possible that the body of Mr. Banks is located with the head of Ted Williams.

3.  Steve Bartman wishes he could have vanished as effortlessly as the body of Mr. Cub.

The Big Messy (Part Deux)

As I posted the other day, Tom Benson, the owner of the New Orleans Saints and the New Orleans Pelicans, recently changed his estate plan to leave his ownership interests in his teams to his 3rd wife instead of his granddaughter. His granddaughter and other relatives filed suit alleging that he is incompetent and that his changed plan should be barred by the court. Among other allegations, his family claims that when questioned he thought the current U.S. President was Reagan or Truman. He also allegedly lives on "candy, ice cream, sodas, and red wine" and forgot his daughter's birthday. The lawsuit portrays his wife, Gayle Benson, as a gold digger. She allegedly has removed all photos of his daughter and grandchildren from their house while he has changed all of his previous medical care providers. 

Several points: 

1. Grounds for contesting a will/trust are absence of mental incapacity (not knowing what one is doing and who one's heirs would usually be) and undue influence (one person convinces another to leave assets to him/her due to proximity to that person). 

2. On the surface, it seems like there is some evidence of both a lack of mental capacity and undue influence in this matter. 

3. Don't we all wish that we could live on "candy, ice cream, sodas,and red wine" and that Ronald Reagan was still president? 

4. It would be more appropriate if Gayle Benson were in line to inherit the 49'ers because they are named after real gold diggers.

Out of Sight, Out of Mind

The NYT blogged about a woman who left her estate to her daughters while disinheriting the children of her son who predeceased her.  Although she was suffering from dementia, two weeks before her death she re-affirmed a prior will which included the grandchildren from her dead son.  She then changed her mind five days later and excluded the grandchildren.  The grandchildren challenged the will and eventually settled for a small amount to be shared among them.   The protagonist granddaughter decried that she wished her grandmother had conversed with her about the will and that she wished her grandmother had left her wishes in a letter.

Several points:

1.   Wills may be challenged on the grounds of undue influence ("Mom, leave it to us, our dead brother's kids are never around") and lack of mental capacity (i.e. dementia).  Both grounds seem to be present in this case.  It seems that they could have fought longer for their father's share.

2.  When one's parent dies and one wishes to inherit the deceased parent's share of a grandmother's estate, constant contact, e-mails, visits, thinking of you cards, and holiday gatherings are time well spent.

3.  Contrary to the granddaughter's naive wishes, clients never tell someone they are are being disinherited much less express those wishes in a writing.  The will serves as that written document.  The woman, Kate, was smart to not use her last name lest she and her naivete be subject to ridicule by those who met her.

Going for a Touchdown When a Field Goal Would Have Sufficed

Jim Carlen was one of the winningest football coaches at the University of South Carolina.  His children from his first marriage, which ended in 1980, are suing his 2nd wife of 29 years alleging that she influenced him to leave all of his estate to her. 

His 2007 will and all prior wills had included the children from his first marriage.  The 2010 will, executed one year after he was diagnosed with dementia, left everything to his widow.  In 2011, he executed a power of attorney in favor his wife which she purportedly used to transfer assets to herself prior to his death 

Several points:

1.  A will executed by an individual diagnosed with dementia that substantially changes his estate plan will always be challenged by the beneficiaries of the prior will.

2.  The coach could have provided for both his widow and children by leaving assets to her in a trust and having them distributed to the children upon her death.

3.  Proving that pigs get fat and hogs get slaughtered, the widow would have been better off ensuring that the children received something rather than seeing them disinherited entirely.

4.  45 wins constitutes the third most wins at South Carolina?  That might explain the one conference championship it its history.