Florida Probate Attorney and Florida Inheritance Lawyer Florida Probate Attorney Blog

Will Contest involving manager of the sex pistols. Lack of capacity claimed.

Malcolm Mclaren died in April of 2010. He had been the manager of the punk / alternative rock group the Sex Pistols and other bands, a performer, and businessman in the United Kingdom where he will be buried.  

He had a rocky and relatively absent relationship from his son Joe Corre although Joe was at his side upon his passing. Joe was not even given his name as he was unwanted and Joe's mom was told to have an abortion since Malcom did not want to be a father or think he would be a good one and his mother did not care for Viviene Westwood who would become a punk fashion designer and businesswoman and gave her money to abort who changed her mind on the way there then they named the child after his mother as a joke. 

For most of their lives they did not have much to do with one another according to articles although at times that changed. 

Malcom was in his 60s and had a girlfriend who was in her 30s that he was with for 12 years and lived with for 9. He did a deathbed will to provide for her. However his mental capacity while he was in the hospital dying of cancer was questionable and he had no prior wills so if that will was the product of undue influence it would pass intestacy which meant the girlfriend would receive nothing in his sole name without a beneficiary designation and it would pass to his son regardless of his intent. 

Joe Corre is a millionaire himself having been a part founder of agent provocateur a lingerie company but said he felt an obligation to bring the will contest and make it known whether his dad had capacity at the time the will was made. He said he was also acting on behalf of Malcom's brother who was also interested. 

A will can leave a persons property to anybody they want for any reason they want. However the person who makes the will must be of legal age being 18 or an emancipated minor, have the document properly executed for example 2 witnesses and a notary with the testator signing then the others watching them do so and being there and each paying attention to the others signing and witnessing. They must also be free of undue influence where another pressures them to make provisions they would not have otherwise have done and have mental capacity. 

While mental capacity also known as testamentary capacity is a reasonably low standard the will can be successful. The person must know who the natural object of their bounty are (their heirs such as their children) the approximate or general extent of the property in their estate not thinking they have $10 if they are a millionaire, able to understand their actions and its effect on their estate plan and related issues. 

While this case is outside the US the lesson is the same as if it would be in Florida that people should designate who they want to receive their property and if they do not have beneficiary designations hold property jointly with right of survivorship or provide early enough in their wills when they clearly have capacity it allow an opening for others to challenge the capacity and validity of the will. The state or country will decide who gets his property through intestacy if it is determined that there was no capacity. 

See Daily Mail UK Alison Boshoff September 17 2010

Manager of Sex Pistols will is contested.

Murder Suspects Dad opens Probate case - sisters of deceased plans to contest the will.

 
TMZ.com reported tonight that David Beresford-Redman has petitioned the probate court to open the probate case and validate the will of his murdered daughter-in-law. 

The probate petitioner his son Bruce Beresford-Redman is now charged with the murder of Monica -- is named in Monica's 2008 will as an executor of her estate also known as the personal representative of her probate estate.  

Monica's sisters have said they will challenge the validity of the will.

Under the will, David and his wife Juanita would inherit Monica's interest in a house she owns.  The remaining property goes to Bruce.

As previously reported by Probate Attorney Blog.com in Florida if a person is merely proved to have more likely than not intentionally and unlawfully brought about the death of another they are unable to inherit anything from the estate. However in California where the will contest is going to occur and the probate case was filed in the LA Superior Court Probate Division the standard is higher and requires a felony so there likely needs to be a conviction although it appears that the sisters are going to seek to contest the provisions going to the father as well or his being personal representative. As far as personal representative the position may be to argue whether he could be fair and impartial as the son is the primary beneficiary currently but that will be challenged but the provisions to him should pass to him unless either he was involved with the murder in some way which seems highly unlikely or there is another legal claim. She had mental capacity though and undue influence is not often made for a case of a woman of her age. While the evidence has appeared to show that the son likely did murder her and he will not receive his share if that is proven to be the case while the writer of this blog is a Florida Probate Attorney and not licensed to practice law in California most slayer statutes do not bar relatives of the slayer who are named in the document and had nothing to do with the wrongful act from inheriting so it will be interesting to see what the legal arguments are in this case. The father had told the children that their mom died in a car crash when they got them as temporary guardians instead of telling them the truth than barred them from going to the funeral and there is likely to also be continuing guardianship litigation regarding who gets the children and what is in their best interests given how their mom passed.

See June 4 2010 TMZ Murder Suspects Dad Opens Probate Case

Will Contest - Undue Influence and lack of capacity alleged in change of Billionaire Melvin Simon's estate and trust.

Melvin Simon was around the top 300 richest people in the Forbes 400 (# 278 when he was 79 years old). He died around 82 years of age. His estate was worth around $1.3 billion dollars.  

Dana Hunsinger of the Indystar.com provided an update of the probate and trust litigation. The judge dismissed part of the case in which his daughter Deborah Simon stated fraud as the claim but was not specific enough in nature. It is allowed it to be refiled. The Probate court Judge failed to dismiss the estate dispute claims against her stepmom Bren Simon which argued undue influence and lack of mental capacity.

While I am not familar with Indiana Probate case law or statutes in Florida can't really merely rely on presumptions to prove an undue influence case against a spouse however she appears to be seeking to prove it directly and using evidence of lack of capacity or diminished capacity.

She indicates that not only were the documents changed just months before he died and was a significant change from prior wills which then gave her stepmom hundreds of millions more while vastly reducing what was going to charity or to herself and her siblings she also indicated that her father Billionaire Mel Simon was suffering from significant neurological problems at the time which impaired his memory, understanding and communication. It is undisputed that he had difficulty even signing the documents although his spouse Bren says that is from Parkinsons and that he signed freely, voluntarily and knowingly.

As I tell clients who inquire about Florida Probate Litigation Information a person can leave there property to anybody they want for any reason they want. However, that is subject to them having mental capacity and there not being evidence of undue influence that they were coerced into doing so and the result was the other persons influence and not their own. The article does not provide many details of undue influence although based on the time line and the capacity issue along with the large change in disposition it seems questionable that he even formed an intent to change the document and undue influence is often combined with diminished capacity which was clearly present here so this will be an interest case to see where it goes. When discussing a potential challenge to contest a will or trust and dispute the intent I do like to see some of the facts that Deborah appears to have here he had a previous plan which she was provided significantly more for, then there is the alegation of significant neuroglogical problems and he was not even able to sign and he was somewhat elderly as well as died just months after signing the document so the timeline looks good. The facts will need to be established to prove the case though was it his intent to provide more for his spouse and did he know what he was doing and act voluntarily will ultimately decide the issue. However with this much money involved and a reasonably good timeline but with it being the spouse and difficult to win unless they can do so on the capacity issue or have direct facts proving undue influence they should settle it would seem in both sides best interests. While sometimes principle is important and it may be worth fighting until the end in a case like this both sides can be sufficiently provided for in a settlement and factoring in the time and saved expense in court costs and attorneys fees it may be a smart move. Anna Nicole Smith estate suing the estate of her deceased billionaire husband and opposed by the estate of his son shows how extended cases of this size can become if each side has a fight to the death mentality. All the initial participants literally did in that case and it is still going on after 15+ years and numerous appearances in multiple different types of courts. She has been awarded $474.5 million around around 89 million and most recently nothing but her side has said they may seek to be heard a second time by the US Supreme Court on a different issue.

On a final note back to the Melvin Simon case it is best that his daughter brings the challenge regarding lack of capacity or diminished capacity and potential undue influence since frequently talking with and seeing her father she could likely present any facts which existed to the court more easily than a charity who may not have had much contact with him. However if a representative of the charity were to know of his condition at the time of execution and chose to join the suit they would be an interested party given the millions of dollars less they would be receiving under the revised will and trust.

Anna Nicole Smith Probate Litigation Video - Trust and Estate Litigation may continue.

Anna Nicole Smith Estate Litigation Video from the AP. 

Her Estate lost the latest round in the probate and trust fight but the estate dispute may continue as her probate litigation attorneys have said they may appeal back to the US Supreme Court on a different issue than was heard in 2006. 

Marshall Estate wins latest round of Litigation. Anna Nicole gets nothing. Probate Court had jurisdiction.

A federal Judge has denied the estate of Anna Nicole Smith $300 she claimed her ex husband who died at the age of 90 an oil billionaire had promised her. J. Howard Marshall who had a $1.6 billion dollar estate and gave her millions in gifts during his lifetime has been contested for 15 years. The trust and estate litigation has been disputed by each side in probate court, bankruptcy court, the Supreme Court and numerous venues with a series of conflicting results with a bankruptcy court awarding as much as $474.5 million another court cutting it back to $89.5 million. 

The federal judge essentially determined they had been wasting their time the past decade. He cited that a 2001 Texas jury verdict said that the money was not intended as a gift and there was no undue influence or fraud. During that court fight as both parties were present and had the opportunity to present their case then the jury spoke the district court should have held to the findings of the Texas Probate Court and that should have precluded other courts (such as the bankruptcy speaking to the factual findings or legal conclusions). Although the bankruptcy court had made their ruling first in 2000 and Anna Nicole's attorney sought to argue federal court should therefore control the courts found the case was initially in probate court and their was a full trial at the probate court level and the bankruptcy decision did not have jurisdiction but was merely an advisory opinion. 

In 2002 a district court cut back the 2000 bankruptcy verdict in favor of Anna Nicole but this federal court ruled that given the 2001 probate court case the 2002 judge should have dismissed the case instead of merely cutting the amount to $89.5 million. 

His family said that lies about E Pierce Marshall have finally been put to rest. 

In 2006 the US Supreme Court had ordered a federal appeals court to reconsider its ruling against Smith. 

It is an important decision from a jurisdictional issue. Had the bankruptcy court been able to prevail and take precedence over the probate court it would have provided a 2nd chance to rush off to another venue when it appeared a case was going poorly and create jurisdiction shopping. Here there was already a probate case going but then she went to a different jurisdiction and was able to get them to take the case on different grounds of a supposed bankruptcy but essentially just a tactic to retry the case in a different context and court. This decision sends the message to determine facts regarding the probate and trust issues in the probate court and to then go with the factual finds of that court and not drag it through to numerous other types of courts to get another shot on the same factual determinations. 

Anna Nicole was 26 when she married the 89 year old J. Howard Marshall who was 89 after meeting her a couple years earlier when she was a stripper. They were married for only 14 months.  

One of her attorneys Howard Stern who was also a past boyfriend was to be paid a contingency fee and will now also receive nothing absent another reversal. She had been his only client and he had made no money for years as mentioned during her estate. At this point the son of J. Howard Marshall who was initially litigating against Anna Nicole died and his estate continued to fight then she did as well and even her son died so the only heir was her daughter who is a minor but she will receive nothing based on the decision. The son's family hopes this finally concludes 15 years of disputes regarding the estate. It has been an interesting case to follow for jurisdictional and other reasons.  An article discussing his not receiving anything can be found here.  

To avoid will disputes & achieve intent intestate succession law revised

In the article Spouses automatically inherit under new law it was mentioned that New South Whales Australia changed their intestate succession laws. While it will not impact my clients the article was of interest to compare how things are there versus Florida and the US and the reason for acting.

The state attorney General John Hatzistergos said "When people die without leaving a will, there is the potential for legal dispute as relatives fight over the estate". In Florida and most US states while there is typically the chance for a dispute whether or not there is a will or trust it cannot be solely because there was no will in the sense that the intestate succession law is clear it would either go one half to the children and one half to the spouse or if they were the children of both parents the first $60,000 goes to the spouse and then half and half. I do not see where it would cut down any disputes as reasons to dispute of lack of capacity, or undue influence, fraud or issues that may be asserted in a will are no present and with the change they proposed it would still not change the most likely disputed situations when there are spouses who are not the surving childrens parents.

It is interesting to note however that they had a poll which showed that 75% of the time people who had a first marriage situation wanted there property to go to the spouse then to the children. When estate tax is not an issue I have found that to be typically the case as well that the parent wants it to go first to the spouse then to her kids and which is why Florida makes the distinction in the amount that the spouse gets depending on whether there are kids from someone other than the surviving spouse or not.  

Likewise their poll showed just 30% percent want all to spouse if there are kids from a prior marriage. Those numbers sound consistent with numbers I have dealt with practicing in both Florida and Illinois.

It is a good idea to have the Intestate succession laws reflect the likely intent of the testator.

An additional issue mentioned in the article was that 45% of people in the survey did not have wills. For clients that I deal with as an estate planning attorney will all have documents in place and almost always avoid probate although from clients in general throughout the US it would be interesting to hear the latest stats the last I had read the ABA at one point had done a survey which showed nationally well above half of adults did not have a will.