Guilty of attempted theft of more than $200,000. That’s the verdict rendered today by a Dallas County jury of 10 women and two men on the eighth day of the Mark McCay trial. The Dallas antique dealer faced the charge in conjunction with the estate of Mary Ellen Bendtsen, the late socialite who resided at 4949 Swiss Ave. in Dallas. The conviction could bring up to 20 years in prison. A hearing to begin the trial’s sentencing phase is scheduled in late July.
The verdict indicates the jury’s agreement with prosecutors that McCay acted with specific intent to commit theft by first having the 88-year-old Bendtsen execute a will on Feb. 22, 2005, as she lay in an ICU ward just hours after being brought to the hospital with a stroke diagnosis and later by filing that will for probate at 8:04 a.m. March 2, about seven hours after she died.
Probate abuse targets often think their cases are unique. Usually, they’re not. Significant patterns show themselves repeatedly. The McCay trial focused on 4949 Swiss Ave., Bendtsen’s notable yet decaying home. The house certainly provided a dramatic backdrop, but the case mechanics followed a familiar non-unique pattern. This case is, however, rare in that McCay and two others, his partner Justin Burgess and now-disbarred attorney Edwin Olsen, all face criminal charges for attempted theft – namely of Bendtsen’s interest in the Swiss Avenue house.
This case has received significant local and national media attention. Its newsworthiness is valid though points coming from knowledge of probate instruments’ (wills, trusts, guardianships and powers of attorney) growing abuse are often missed or not truly addressed.
Probate instruments abused
The 4949 Swiss Ave. estate case involved a questionably-executed will used to divert Bendtsen’s assets from her only child, Frances Ann Giron, and instead position McCay and Burgess to inherit the bulk of the elderly woman’s estate which included her one-third interest in the Swiss Avenue property.
Powers of attorney also were at issue as Giron became her mother’s POA only after a January 2005 fall and subsequent diagnosis of “brain bleed.” Four days later, Giron was out exploring doctor-directed rehab facilities for Bendtsen and McCay used the opportunity to convince Bendtsen to sign a new POA diverting authority previously granted Giron to him.
During this timeframe, Giron also petitioned for a guardianship of her mother’s person and property. While guardianships can (and are!) used as vehicles for probate abuse, taking such action in this case seemed exactly what guardianships are theoretically designed to accomplish. Despite defense efforts to cast doubt on Giron’s motivations, a stronger argument explaining prior restraint and the timeliness of her protective action effort was easily made.
Minimal risk of consequences heightens threat
Steal from a bank, the world gets upset. Steal comparable assets from an estate and aggrieved parties are directed to the civil courts where the pursuit of “justice” is often cost prohibitive. As more people come to understand this reality along with low instance of criminal prosecutions, the perpetration of Involuntary Redistribution of Assets (IRA) cases becomes more appealing. With this, the 4949 Swiss Ave. prosecutions take on additional importance that probate-oriented property poaching can indeed bring criminal consequences.
The overwhelming numbers of legitimate cases which district attorneys’ offices see on a daily basis is understood. The most well-intentioned prosecutor doesn’t have the resources to pursue every meritorious case that comes their way. One has to hope, however, that prosecutors demonstrating increasing intolerance to these assaults on an unsuspecting public’s individual liberties and property rights will ultimately become a strong deterrent for diminishing the current appeal IRA actions invoke for the grave robbers, property poachers, asset looters and walker stalkers operating among us.
Only estates of the “rich” are targeted
It’s easy to dismiss probate abuse as only targeting high-dollar estates, something the average American thinks they’ll never face. That view, however, is a major misconception. While estates of the “rich” may indeed be susceptible to estate looting attempts, those of $500,000 to $1 million or so can also be prime targets as they provide enough financial incentive to merit pursuit, but usually not enough to cost effectively defend in a civil venue – and remember, criminal prosecutions are increasing, but still uncommon.
In the 4949 Swiss Ave. case, the house – in its state of decay and disrepair – was worth well less than $1 million, likely closer to $500,000. Bendtsen only had one-third interest in the house. While her possessions and the house content had some value, her entire estate probably didn’t much exceed $300,000. One need not be “rich” to be targeted for probate abuse.
Proper estate planning provides protection
Unfortunately, not in this life. While proper estate planning is absolutely important to do, understand that anyone can contest “properly prepared” documents leaving heirs to defend their legitimate inheritance rights. Or, they can encourage production of new documents redirecting assets. Such efforts are often perpetrated by disgruntled family members, wannabe heirs and/or unscrupulous attorneys. And in this case, individuals from two of these three categories are being prosecuted.
Family conflict is often an entry point. With the Swiss Avenue case, 88-year-old Mary Ellen Bendtsen and her daughter were at odds over Bendtsen’s determination to remain in the historic mansion despite its major state of disrepair and her declining health.
Bendtsen had a valid will, but that did nothing to stop McCay’s asset-diverting efforts. Probate abuse patterns show themselves again and again.
Probate abuse impacts far more than the elderly
Elder abuse is often a component of many probate abuse cases, but to consider it the sole issue greatly diminishes the true and cross-generational impact these IRA actions create. The 4949 Swiss Ave. case well makes this point.
Indeed Mary Ellen Bendtsen suffered harm from the circumstances created with regard to control of her care and asset distribution. That should neither be ignored nor slighted. Sitting in the courtroom, however, two other generations of family members (and perhaps another at home with babysitters) reminded how the harm, expense and life-changing experience these cases bring is hardly limited just to the elderly. Family, even friends, who live through the distraction, the psychological paralysis that often occurs endure undeserved turmoil.
The elder abuse aspects of these cases certainly merits respect, but to view the harm rendered as strictly about the elderly diminishes the entirety of these bad acts.
Probate abuse and other threats to inheritance rights are realities in today’s world. They exist for people at all points on the income spectrum, in all walks of life. At this point, no action exists to ensure inoculation from attempted IRA actions. And with the aging Baby Boomers and ongoing economic downturn, it’s likely to get worse before better.
Understanding these threats to individual liberty and property rights is critical. And again, as proper estate planning doesn’t offer the fail safe protection your estate planning professional might purport, it’s still better to engage in that planning than not.
Should someone argue otherwise, look at the case of New York socialite Brooke Astor. She had access to the best estate planning that money could buy, but in her later years, it didn’t stop her son from attempting to change Astor’s estate plan to his own benefit thus diverting assets from long-intended beneficiaries.
The same goes for the family of J. Howard Marshall II. Despite legitimate documents specifying his designated heirs, the family spent nearly 15 years defending their position first from Anna Nicole Smith, Marshall’s widow for whom he generously provided during their 14-month marriage in lieu of including her in his estate plan, and later from her estate. Access to significant resources wasn’t enough to stop the relentless assault on Marshall’s estate and the family’s inheritance rights.
And when it comes to a more modest estate, Josephine Smoron, a now-deceased Connecticut dairy farmer, prepared an estate plan leaving her farm and livestock to her long-time caretaker. As the property is wanted by local developers for a sports complex, Smoron was targeted for a court-appointed guardianship under which an attorney then created two trusts leaving her farm to several churches. In short order, the property was under contract for development of the sports complex. Smoron’s heir, Sam Manzo, is fighting through the court system, the attorney involved was recently cited as violating ethics laws for his actions, but Manzo is no closer to gaining control of the property to which he is entitled – despite Josephine Smoron’s “proper estate planning.”
These things happen quietly and far more often than people realize. Additional information on these cases and more is available at EstateofDenial.com.
Meanwhile, thank you to the Dallas County District Attorney’s Office for a job masterfully done and an important community service effort. While indeed it sends a warning regarding an intolerance for elder abuse, a larger message educating an unsuspecting public as to potential threats at hand can well-serve multiple generations of Dallas County residents.
Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture. She is the Online Producer at www.EstateofDenial.com, a Policy Advisor with Americans for Prosperity – Texas and a Director of Women on the Wall. Lou Ann may be contacted at info@EstateofDenial.com.