The continuing saga of the criminal trial of New York socialite Brook Astor’s son, Anthony Marshall, and co-defendant/attorney Francis X. Morrissey Jr., sheds light on some issues that exist when wills or trusts are attacked after the death of the creator of the documents (who is called, among other things, a “testator” or “trustor”).
One of the key witnesses in the Astor trial was the long time attorney of Mrs. Astor. That attorney reportedly testified that while Mrs. Astor had been under intense pressure from her son at the time she executed the last estate planning documents the attorney prepared for her, he believed she understood what she was doing.
While the Astor trial is a criminal trial – and it is very unusual for a criminal trial to flow from good or bad estate planning – the capacity of the testator is at issue in many trials involving a challenge to a will or trust. If filed as a probate case, some parts of the Astor trial would be said to involve allegations of what is known as “undue influence,” which essentially means that some person (an “influencer”) had such influence over the testator that the influencer influenced the testator to substitute the influencer’s judgment for that of the testator. This happens with some regularity in family situations, but never before have I seen it rise to the level of a criminal trial as is happening in New York with the Astor estate.
What the testimony of Mrs. Astor’s attorney highlights for our purposes is the issue of whether a testator has “testamentary capacity,” which also can be relevant to whether a testator can resist undue influence. This is not the forum for an extensive discussion of how capacity is determined in California, but in general, every person is presumed to have capacity. Only if a person contesting a will or trust can show that a testator suffered from one or more mental deficits listed in the Probate Code, and that there is a correlation between the deficit(s) and the decision or act in question, can a court determine (if the court follows the law, instead of just deciding which side it likes better) that the testator lacks capacity.
Although the statute governing the presumption of capacity is relatively new and based on modern psychiatric thought, there is a long line of old cases, likely with no clinical support whatsoever, that also can influence how a judge decides a case.
One of the long standing doctrines which is highlight by the Astor trial is that under California law, the testimony of the drafting attorney as to the testator’s capacity, while not definitive, is given great weight by the courts. The court’s view is that since the lawyer saw the testator, presumably spoke with the testator, presumably received directions from the testator as to what he or she wanted the attorney to write, and is an officer of the court, the attorney’s testimony is presumed to be valuable to the determination of capacity
In reality, it will be a rare case, if ever, that the drafting attorney gets on the witness stand and says “My client had no clue what I was saying or what he was signing, but I had him sign it anyway because his daughter told me that’s what he wanted.” That type of testimony would impugn the drafting attorney’s integrity. Moreover, even if the attorney rarely does estate planning as part of his or her practice, and never has studied issues related to testamentary capacity, his or her testimony still is entitled to great weight. I also question whether most attorneys would get up on the witness stand and admit that “this was the first will I drafted in twenty years.”
I do not know Mrs. Astor’s long-time attorney, I have no reason to believe that he was not being truthful in his testimony, and I know nothing about the case other than what I have read in the media. However, from a very practical standpoint, in my opinion, the testimony of a drafting attorney is inherently suspect. I am not saying that attorneys routinely will lie under oath on a witness stand, but I am saying that an attorney who should not have had a client sign a will or trust because of the client’s lack of capacity is not likely to admit that, even under oath. Thus, although judges should hear the testimony of a drafting attorney, they should view it with some suspicion, and not give it as much weight as it seems to have received in the past.