Astor fortune distribution still to be resolved

Fate of Astor Fortune Remains Uncertain
A.G. Sulzberger
October 8, 2009
The New York Times
http://www.nytimes.com/2009/10/09/nyregion/09will.html
The spectacle of the Brooke Astor trial owed much of its public fascination to celebrity and circumstance — a son accused of greedily exploiting his aging mother, a beloved philanthropist who had dedicated much of her life to charity.

Yet the conviction of Anthony D. Marshall on charges that he stole from his mother, Brooke Astor, has done little to resolve the uncertain fate of the $180 million estate at the heart of the discord. So even as Mr. Marshall awaits sentencing and a possible appeal, another dramatic legal showdown looms.

As the public watched the criminal trial unfold over the last five months, a small army of lawyers, including those for a dozen charities, spent their time reading the tea leaves for some sense of how it could alter the jockeying over the Astor fortune. The Metropolitan Museum of Art and the New York Public Library, the two main beneficiaries of Mrs. Astor’s largess, even sent observers to the trial.

The expected contest — which could be sidestepped by a settlement — is in Westchester County Surrogate’s Court, and centers on whether Mrs. Astor’s assets should be distributed according to her most recent will, from 2002, or an earlier version, which directed more money to charity.

At the core of this issue is whether Mrs. Astor was mentally competent when she signed the 2002 will, which was amended in late 2003 and again in early 2004. Those revisions gave her son more control over her estate, and in the process she reduced the amount of money she left to the New York universities, libraries, parks and museums she had spent so much of her life supporting.

The sweeping verdict against Mr. Marshall may provide a significant boost to their push to have the recent will thrown out as invalid, lawyers say. “It’s very unusual and directly relevant to the issues before the surrogate because both cases concern her mental capacity,” said Paul C. Saunders, a lawyer for Annette de la Renta, who was Mrs. Astor’s court-appointed guardian and is a party in the surrogate case. “Clearly the jury believes she didn’t have the capacity to understand what she was doing.”

The maneuvering began almost immediately after Mrs. Astor’s death on Aug. 13, 2007, with a dispute over who should be named administrators of the estate (the court eventually named JPMorgan Chase & Company and a retired judge). The case began to move quickly toward a will battle, though no formal objection has yet been filed.

If the most recent will is upheld, many charities will lose millions of dollars, with the Met and the library — both of which declined to comment for this article — losing out on an estimated $10 million each. The Surrogate’s Court case was postponed pending the resolution of the criminal case, and it remained unclear whether it would resume if Mr. Marshall appealed his conviction, as he has pledged to do. The court is scheduled to discuss the civil case again on Nov. 4.

Because there is little precedent for criminal charges to be brought in a will dispute, legal experts said it was difficult to predict how the voluminous testimony gathered during 19 weeks in court or the criminal convictions of Mr. Marshall and Francis X. Morrissey, a lawyer who did estate work for Mrs. Astor, would affect the outcome. However, the standard of proof in criminal court (beyond a reasonable doubt) is higher than in civil court (a preponderance of the evidence), so a criminal conviction would appear to be unfavorable for Mr. Marshall. The jury found that Mr. Marshall had conspired to defraud his mother by tricking her into altering her will twice and that Mrs. Astor’s signature on one of those codicils was forged by her lawyer, Francis X. Morrissey Jr. While the criminal case did not include charges regarding the 2002 will or the first amendment, guilty verdicts on other charges not directly related to the will changes suggest that the jury believed that questions about Mrs. Astor’s competency predated them.

In the past, Kenneth E. Warner, a lawyer who is representing Mr. Marshall in both cases, has accused Robert M. Morgenthau, the Manhattan district attorney, of consciously influencing the civil case by bringing criminal charges — a decision that could swing the civil battle toward an outcome more favorable to some of the most influential institutions in the city.

Before the civil case was put on hold in late 2007, the judge overseeing the case said the dispute was close to being settled. However, participants in those discussions said no specific settlement offer was ever made, the criminal verdict on Thursday could significantly alter any previous negotiations.

One complicating factor complicating a challenge is that Mrs. Astor — who inherited her fortune after an acrimonious legal battle following the death of her husband in 1959 — included a provision aimed at discouraging any legal challenge to her will. The provision states that anyone who contests the will and loses will receive nothing.

Those who considered filing such a challenge waited for a resolution of the criminal case to get a sense of how it might be received. However, Attorney General Andrew M. Cuomo, who by statute represents charities in such disputes, is not bound by the provision.

Mrs. Astor’s court-appointed guardians — as well as her grandsons and a number of high-profile friends — have backed the charities in pressing the court to instead adopt a will that Mrs. Astor signed in 1997. The Met and the New York Public Library, for example, would each receive about $10 million more under that will.

Regardless of which will is adopted, Mr. Marshall will receive a considerable amount of his mother’s estate, including money and property. However, if the 1997 will is adopted, the bulk of the money will be locked up in a trust that will provide him payments to live on but go to charity upon his death. That would prevent Mr. Marshall from leaving the estate to his wife, Charlene Marshall, who prosecutors contend was behind his attempts to change the will.