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2024
Freedom to Give, Devise, and Bequeath Freedom to Give, Devise, and Bequeath
Raymond C. O'Brien
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QUINNIPIAC PROBATE LAW
JOURNAL
VOLUME 37 2024 ISSUE 2
FREEDOM TO GIVE, DEVISE, AND BEQUEATH
RAYMOND C. O’BRIEN*
ABSTRACT
The ability to freely give, devise, or bequeath property is commonly
thwarted by persons granted standing to contest formalities and intentionalities of
wills, tortious interference with an expectancy, and expanding concern over inter-
vivos gifts and trusts due to increasing elder financial abuse. Nonetheless, there
is an expanding class of older, wealthy, and independent-minded donors who seek
an effective means by which they may give their wealth to whomever they wish and
bypass expensive legal fees, protracted litigation, loss of privacy, and the emo-
tional drama of court proceedings. This Article offers a suggestion of how to re-
strict the possibility of contest by utilizing the tools of modern estate planning,
such as inter-vivos trusts, directed trusts, and selecting an advantageous trust si-
tus.
The donative histories of three persons are offered as illustration: Seward
Johnson, Huguette Clark, and Sumner Redstone. Each one was wealthy, older,
exhibited a history of giving to those they liked, and possessed professionals to
assist with giving, devising, or bequeathing their wealth to any person each chose.
However, each of their estates endured contest and expense, ultimately suffering
disappointing consequences. This Article discusses the challenges they all faced
and the options available to them and to those in similar circumstances. Ulti-
mately, it will ask what could have been done differently, and offer a suggestion.
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TABLE OF CONTENTS
I. Introduction ...............................................................................................
II. The Enticement of Giving .......................................................................
A. J. Seward Johnson, Jr. ......................................................................
B. Huguette Marcelle Clark ..................................................................
C. Sumner M. Redstone ........................................................................
III. The Challenge of Giving ........................................................................
A. Age ...................................................................................................
B. Thicket of Mental Incapacity ...........................................................
1. Last Will and Testament ......................................................
2. Inter-vivos Trusts .................................................................
3. Gifts .....................................................................................
C. Elder Financial Abuse ......................................................................
IV. Options for the Giver .............................................................................
A. Statutory Limitations on Trust Contest ...........................................
1. UTC Section 604 ......................................................................
2. South Dakota ............................................................................
3. Massachusetts ...........................................................................
B. A Suggested Strategy .............................................................................
1. Trust Situs .................................................................................
2. Disclaimer .................................................................................
3. Trust Protector ..........................................................................
V. Conclusion ...............................................................................................
I. INTRODUCTION
The words of Plato remain true, that monetary wealth is the parent of lux-
ury and indolence.
1
Objectively too, luxury and indolence include giving it all—
or a substantial part of it—to whomever whenever one wishes. Ostensibly, the
wealth transfer system seems amenable: “The multi-millionaire has countless cus-
tomizable trust products to minimize income, capital gains, and transfer taxes, as
well as multiple probate-avoidance devices, from life insurance to payable-on-
death provisions to beneficiary designations in securities and bank accounts.”
2
These products, available because wealth can purchase professional advice, seem-
ingly illustrate “the law’s solicitude for the wealthy.”
3
Indeed, it is arguable that
the states’ near elimination of the Rule Against Perpetuities, and the concomitant
proliferation of what are termed dynasty trusts lay the groundwork for a new
Gilded Age, whereby wealth may be prudently managed for endless generations
of any family, resulting in a dynastic lineage of managed wealth. Until recently,
*Professor of Law Emeritus, Columbus School of Law, The Catholic University of America; Visiting Pro-
fessor of Law, Georgetown University Law Center. The author is grateful to Isabelle Colaiezzi for her pro-
fessional editorial assistance.
1
PLATO, THE REPUBLIC book IV, at 422.
2
Danaya C. Wright, Trapped Between the URPTODA and the UPHPA: Probate Reforms to Bridge the
Gap and Save Heirs Property for Modest-Wealth Decedents, 127 PENN ST. L. REV. 749, 754 (2023) (criti-
cizing the cost of probate for those of modest means unaware of the availability of far less expensive nonpro-
bate transfers).
3
Id. at 804.
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the Rule stood as a hurdle to wealthy scions, precipitating a rough-and-tough test
of intergenerational mobility.
4
Overall, judged by the professional options availa-
ble to the wealthy today, the affluent “have broad testamentary freedom to dispose
of their estates as they see fit.”
5
But appearances are deceiving, and freedom is not unbridled. During life-
time, significant gifts generated by a donor to all manner of donees suffer chal-
lenges by persons with judicial standing, usually disgruntled children, but other
descendants too, most often based on persnickety causes of action alleging undue
influence, lack of testamentary capacity, elder abuse, theft, duress, conversion,
unjust enrichment, fraud, or a perennial favorite, unjust enrichment. Disappointed
descendants file suit against donees, often coupled with the nascent tort of tortious
interference with an expectancy. Each side assembles a phalanx of attorneys, cost-
ing ever-increasing fees, most likely gauged in billable hours.
When a legal complaint is filed, sometimes the donor is living and, thus,
able to respond with observable mental capacity at that time, sufficient donative
intent, and rationality. At death, the donor is unavailable, yet significant wealth
may pass through a validly executed Last Will and Testament, a payable-on-death
contract, or joint tenancy. And too, increasingly persons with access to profes-
sional estate planners—the wealthy—utilize inter-vivos trusts, which are inher-
ently revocable by the settlor/donor, but become irrevocable and payable at the
donor’s death to named beneficiaries, either outright or in a continuing trust fash-
ion.
Is it possible for the wealthy to gift or bequeath property to another and
foreclose the possibility of litigation by his or her heirs? What is the value of lux-
ury and associated indolence if you cannot do with your wealth what you wish?
And be mindful of the fact that the merits of any case have little to do with the
economic consequences of litigation. Every lawsuit necessitates attorney fees, ex-
pert witness fees, the lengthy process involved, and the inestimable cost of emo-
tional confrontation. And, as will be detailed in this Article, the costs are myriad,
illustrating the expectations of heirs and the truth of Shakespeare’s line that, “Men
prize the thing ungain’d more than it is.”
6
This Article addresses the issue of whether today’s wealth management
tools are sufficient to permit persons with monetary wealth the ultimate in luxury
and indolence, to give, devise, or bequeath to others property that persons with
legal standing may covet for themselves. Obviously, donors may do what they
wish and deal with the consequences of future litigation; more often than not this
reckless disregard of consequences is how the wealthy got wealthy in the first
place. Reckless abandon is illustrated whenever a donor dies intestate, without a
will or will substitutes, causing his or her property to pass intestate to the very
4
Jack H.L. Whiteley, Perpetuities in an Unequal Age, 117 NW. U. L. REV. 1477, 1500 (2023).
5
Kaiponanea T. Matsumura, Beyond Polygamy, 107 IOWA L. REV. 1903, 1944 (2022) (citing John H.
Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489, 491 (1975)).
6
WILLIAM SHAKESPEARE, TROILUS AND CRESSIDA, Act I, sc. ii, I. 313.
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104 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
persons with legal standing likely to contest. Alas, even then, not everyone will be
happy, but certainly legal expenses will be minimal. But other than unabashed
abandon, how may a donor give ownership to others during life or at death and
minimize litigation by disappointed heirs?
This Article suggests that unabashed freedom of donation may be accom-
plished today if the donor selects a favorable state situs for the management of the
financial assets involved, and is perspicacious in choices of trustees and trust pro-
tectors. Ever since Professor John Langbein recognized the nonprobate revolution
generated in wealth transfers, possibilities continue to expand.
7
Devising a means
by which the wealthy may experience the utmost in luxury and indolence, giving
it to whomever they wish without litigious consequences, is addressed in this Ar-
ticle.
To better appreciate the dilemma of the wealthy giving, devising, or be-
queathing, we illustrate the unique gifting history of three individuals: J. Seward
Johnson, Jr., Huguette Marcelle Clark, and Sumner Redstone. Johnson hired the
best attorneys and had ample planning time to give his estate to the woman he
undoubtedly loved. Huguette Clark sought to benefit her faithful companion, her
nurse for many, many years. And as Sumner Redstone grew older, he took great
solace in the company of certain women, especially in gifting them whatever they
desired. These three illustrate the pitfalls of wills, nonprobate transfers, and abso-
lute gifts. As such, they provide a backdrop to the wealth management opportuni-
ties now existent.
II. THE ENTICEMENT OF GIVING
There is a prayer attributable to St. Francis of Assisi, which acknowledges
that it is in giving that we receive.
8
While this may be solace for the prayerful, it
is reality for the secular. To illustrate, we will review the gifts made by three mon-
etarily wealthy persons, some made during life, some made at death, yet all illus-
trating the allure inherent in giving wealth to others.
9
Each of the three individuals
were affluent by the standard of their times, neither secretive nor stingy with fam-
ily members, but each suffered legal challenge from descendants who had no legal
7
See generally John H. Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489
(1975).
8
See Dr.Christian Renoux, The Origin of the Peace Prayer of St Francis, http://www.franciscan-ar-
chive.org/franciscana/peace.html (last visited Feb. 15, 2024).
9
But consider gifts made by others. Warren Buffett is the “biggest philanthropist of all time,” giving
away $48 billion by 2022, outpacing Bill and Melinda Gates by just over $10 billion. Matt Durot, Warren
Buffett Has Now Given Record $48 Billion to Charity, FORBES (June 14, 2022),
https://www.forbes.com/sites/mattdurot/2022/06/14/warren-buffett-just-gave-another-4-billion-to-char-
ity/?sh=4dbadbce2f9e. Also, for example, George Soros ($18.1 billion), Michael R. Bloomberg ($12.7 bil-
lion), Mark Zuckerberg and Priscilla Chan ($3 billion). Maximo Tuja, America’s Top Givers 2022: The 25
Most Philanthropic Billionaires, FORBES (Jan. 19, 2022),
https://www.forbes.com/sites/forbeswealthteam/2022/01/19/americas-top-givers-2022-the-25-most-phil-
anthropic-billionaires/?sh=1ca0ed2e3a6c.
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right to the gifts made other than being consanguineous relatives, which gave them
standing to contest gifts or assert financial abuse.
Common among all the givers illustrated is the perception that they were
mentally incapacitated because of sickness and advanced age, suggesting thereby
they were more easily unduly influenced, defrauded, abused, or victimized by theft
or duress. Although the law presumes that every person possesses capacity at the
time of a gift or the execution of a will,
10
which presumption requires at least clear
and convincing evidence to rebut,
11
children or more distant relatives with whom
the giver had infrequent or no contact, were able to precipitate expensive litigation
lasting for lengthy periods of time. Yet, when examining the facts, it seems incon-
trovertible that the giver had a long history of gift-giving to the ultimate donees
and intended the gifts as further largess. What could each of the following persons
have done to avoid costly litigation by his or her heirs?
A. J. Seward Johnson, Sr.
Seward Johnson was the heir to a major corporation founded in 1887 by
his grandfather, Robert Wood Johnson, with the help of his two brothers.
12
They
called the new company Johnson & Johnson, and following the 1906 San Fran-
cisco earthquake, the company shipped eighty percent of the surgical supplies used
there, and “prospered during World War I, the largest mass infliction of wounds
in human history.”
13
Seward was born in 1895, married his first wife in 1924, and
together they had four children,
14
but by 1937 they divorced, the wife alleging her
husband’s adultery as the cause.
15
He married for a second time in 1939, and to-
gether they had two children, which brought his total to six.
16
Although he pro-
vided for his children, his attitude towards them was that, “[m]aking children was
fun; rearing them was not.”
17
Seward did provide for his children during his lifetime. He established
trusts for each of them, which soon became “worth tens of millions of dollars,”
believing that “he had satisfied his obligation to his children,” and “in the thirty-
two wills and codicils he signed from 1966 on, he left virtually nothing further to
any of them.”
18
However, their relationship was fraught with discord, as, “[h]e had
10
See, e.g., Holmes v. Burchette, 766 So. 2d 387, 388 (Fla. Dist. Ct. App. 2000).
11
See, e.g., In re Guardianship and Conservatorship of Hartwig, 656 N.W.2d 268 (Neb. Ct. App. 2003).
12
DAVID MARGOLICK, UNDUE INFLUENCE: THE EPIC BATTLE FOR THE JOHNSON & JOHNSON FORTUNE 24
(1993).
13
Id.
14
Id. at 27.
15
Id. at 29.
16
Id.
17
Id. at 33.
18
MARGOLICK, supra note 12, at 33. (By the time of Seward’s death, these trust assets had matured to $600
million. Id. at 235).
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given his children little but money, and they had brought him little but embarrass-
ment.”
19
By 1969, Seward was increasingly dissatisfied with his marriage to his
second wife and took an interest in a young woman named Basia, an immigrant
from Poland, hired as a cook and then a maid in his household.
20
One of Seward’s
daughters recounted that her father “had very nearly run his boat aground once
when he spotted [Basia] walking along the shore” on Cape Cod.
21
Then, on No-
vember 3, 1971, his thirty-two-year marriage ended, but his third marriage to Basia
was scheduled a week later, on November 11.
22
Even as early as the 1970s, Seward
had his attorneys prepare a prenuptial agreement, which specified that if Basia
remained married to Seward until his death she would receive $10 million, a val-
uable art collection, and properties in Ansedonia, Italy.
23
They signed the agree-
ment and were married, but none of Seward’s children were present for the cere-
mony; he was seventy-six and she was thirty-four at the time.
24
By 1973, Seward revised his will to increase Basia’s trust to $100 million,
included within was his bequest to her of half of his estate.
25
Consistent with all
of his estate modifications, his children inherited nothing; “they hadn’t been in his
wills since the mid-1960s.”
26
In that same year, 1973, Seward severed ties with
his long-time attorney and retained a sixth-year associate at his traditional firm,
Shearman & Sterling, named Nina Zagat.
27
She “was roughly Basia’s contempo-
rary, and was kind and unthreatening enough to keep [Basia] company without
crowding or upstaging her.”
28
Gradually, Nina concentrated on the legal chores
arising from Seward’s many ventures, yet in spite of the fees Nina generated for
Shearman & Sterling in 1975, she was not offered a position as partner in the firm;
nonetheless she remained there as a permanent associate.
29
Undeterred, she re-
mained an attorney for Seward and Basia.
30
Eventually, Seward would provide her
19
Id. at 41.
20
Id.
21
Id. at 45.
22
MARGOLICK, supra note 12, at 53. Throughout their marriage, “Basia’s English was treacherous: not
quite good enough to forgo an interpreter in a case [involving the validity of Seward’s will] of this magni-
tude, more than good enough for her to think she could.” Id. at 351.
23
Id. Seward’s worth at the time of the wedding was $328,575,040.00, mostly in Johnson & Johnson stock;
Basia’s worth was $500,359.06, mostly in gifts that Seward had given to her. Id. at 54. The premarital
agreement would be revoked by both of the parties shortly before Seward’s death. Id. at 155.
24
MARGOLICK, supra note 12, at 53-54.
25
Id. at 73.
26
Id. at 74.
27
Id.
28
Id. at 75.
29
MARGOLICK, supra note 12, at 121-22.
30
Id. at 122.
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with millions of dollars of legal fees associated with being his executor and trustee
of various trusts he created.
31
After Seward married Basia, his son, known as Junior, “was really the
only one of Seward’s children to keep in touch with him regularly.”
32
The other
children “went their own unremarkable ways.”
33
Jimmy “dabbled in painting and
farming in New Jersey. Jennifer divorced race-car driver Peter Gregg” and “dab-
bled in the arts in Jacksonville[,]” Florida. His second daughter “continued to live
a dilettantish life in Boca Raton[,]” Florida.
34
And Diana’s marriage ended soon
after she and her husband had two children; she quickly married a horse enthusiast
thereafter.
35
As far as Seward was concerned, his children “ha[d] nothing to worry
about for the rest of their lives,” because he had provided for them with trust assets,
of which they knew very little, and they knew nothing of Seward’s evolving estate
plans.
36
By 1983 Seward’s health declined significantly. One of his doctors con-
firmed that, “Seward’s ribs . . . were riddled with cancer. Alert as Seward might
be, the disease was eating him alive. His condition was terminal.”
37
As he was
prone to do, Seward continually updated his testamentary plans, modifying the
amounts his wife, eldest son, and his favorite charity, Harbor Branch, would re-
ceive.
38
Not surprisingly, Nina explained to Seward the various ways that his chil-
dren could contest his will, suggesting issues of execution, competency, duress,
and undue influence.
39
And she had thought of ways to preempt litigation, such as
“no contest clauses,” phrases that listed how much Seward had given his children,
and personal praise for the children’s limited accomplishments.
40
These precau-
tions were in place when Nina prepared a final will for Seward to sign, which he
did in April, 1983.
41
Seward’s final will left Basia almost everything tangible, about $225 mil-
lion went into a trust for her from which she could draw income and up to $1
million annually of principal for herself, plus up to $20 million during Basia’s
lifetime for her relatives, and approximately $75 million in trust to provide income
to Basia for life and at her death for Basia to choose among his charity, Harbor
31
Id. at 388. Nina would receive $6 million as executor and $750,000.00 annually as trustee of Basia’s
trust. Id. Between Seward’s 1976 will and his 1983 will Nina’s fees rose from $225,000.00 to $6.2 million.
Id. at 418.
32
MARGOLICK, supra note 12 at 95.
33
Id.
34
Id. at 95-96.
35
Id.
36
Id. at 123.
37
MARGOLICK, supra note 12, at 134.
38
See id. at 192, 209, 261.
39
Id. at 141.
40
Id. at 142. At the time of the probate trial, the trusts that Seward had established for each of his children
would have been worth $110 million each if left intact. Id. at 407.
41
Id. at 157.
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Branch, or his relatives.
42
Seward’s children, with the exception of Junior who got
the house in Chatham plus $1 million, received nothing.
43
The witnesses to his
will, Jay Gunther and James Hoch, who were also attorneys at Shearman & Ster-
ling, signed as witnesses and executed a self-proving affidavit testifying that the
formalities were met at the request of the testator.
44
Also, within hours of signing,
Seward’s doctor arrived and, after examining his patient, signed a paper stating
that “Seward was ‘of sound mind and memory and aware of his acts.’”
45
Nina did
her best to avoid contest.
By May 1983, Seward was dead, and his estate value totaled $
402,824,971.59.
46
He was eighty-seven years-old and had served as a director of
Johnson & Johnson for fifty years, his death precipitating the start of the legal
probate of his estate.
47
Nina was a co-executor, with Basia and Junior, and she
initiated the process in New York Surrogate Court, hoping that Seward’s children
would avoid contest.
48
Nonetheless, within days the children retained Alexander
Forger of Milbank, Tweed, Hadley & McCloy to represent them in a will contest.
49
Harbor Branch also retained the Milbank firm, dismissing their former firm of
Shearman & Sterling.
50
It is difficult to prove that a testator lacked testamentary capacity at the
time of will execution, or that he or she was “unduly” influenced by a spouse, so
the goal for Milbank was to settle the Will contest with a “scorched-earth brand of
litigator, someone who could make life so miserable for Basia and Nina that they
would eventually have to surrender,” which meant that they would agree to a set-
tlement with the heirs.
51
Milbank hired Edward J. Reilly, who was a “driven, tor-
tured, angry man.”
52
The firm filed a contest to Seward’s Will by September, al-
leging first, that Seward lacked capacity to execute the Will; “second, that the will
had been procured ‘by fraud, duress[,] and undue influence’ on the part of [Basia]”
and others acting in concert with her; and “third, that the document had not been
42
MARGOLICK, supra note 12, at 156.
43
Id. at 156-57. Between 1962 and 1983 Seward executed twenty-nine wills and codicils. Id. at 261.
44
Id. at 157-58.
45
Id. at 158. The trial to establish the validity of Seward’s will would begin three years after his death. Id.
at 376.
46
Id. at 171.
47
MARGOLICK, supra note 12, at 172.
48
Id. at 181-83.
49
MARGOLICK, supra note 12, at 186. “Everything about him, right down to his aviator-type eyeglasses,
exuded elegance, boldness, vigor, and strength.” Id. at 187. “He had the peculiar arrogance of someone who
knew he could treat people both with contempt and with impunity.” Id. at 190.
50
Id. at 185, 191.
51
Id. at 198.
52
Id. at 199 (“[m]ore often than not, Reilly destroyed his adversaries surgically, without splattering any
blood on himself.” Id. at 552.).
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executed properly.”
53
Harbor Branch did not file a contest, relying on Seward’s
children to wage the battle, from which they would benefit too.
54
Basia and Nina of course relied upon Shearman & Sterling, but that firm
decided to retain outside counsel, specifically Donald Christ, a partner at Sullivan
& Cromwell.
55
Milbank proved a formidable foe, “casting about wildly for any
legal hook into Seward’s estate, any cloud on Basia’s title,” yet, at the start of the
litigation, Christ had bragged to his partners at Sullivan & Cromwell that the John-
son case was “open and shut.”
56
In part, Christ may have believed this because he
was aware that Seward’s children, the plaintiffs, were vulnerable because their
lives were viewed as frivolous and indolent. But when the Surrogate Judge, Marie
Lambert, refused to admit evidence of the children’s “crackerbarrel psychoanaly-
sis,” Christ needed another approach to represent the interests of Basia and Nina.
57
By December 1985, after months of interrogatories and depositions, the
law firm representing Basia and Nina had now charged Seward’s estate $2.9 mil-
lion since Seward’s death, and the actual trial had yet to begin.
58
Preliminaries
indicated that the case would evolve around the undue influence of Seward by
Basia, but also testamentary capacity, “whether Seward Johnson had acted freely,
not whether he’d acted wisely or well.”
59
The Milbank attorneys offered as proof
of Seward’s incapacity and Basia’s manipulation the disinheritance of Harbor
Branch in Seward’s estate plan.
60
“Was it believable that a man who wanted to die
on the premises of his proudest creation, contemplating his beloved boats,
wouldn’t leave it a penny?”
61
Perhaps sensing they had a good case, Milbank pro-
posed settling the case for $200 million, but their offer was rejected by Basia’s
attorneys.
62
Similarly, attorneys for Harbor Branch offered to settle for between
$25 to $30 million, but this offer was rejected too.
63
The attorney for the children, Ed Reilly, described for the jury the ele-
ments of undue influence,
64
And argued that Basia unduly influenced Seward with
53
MARGOLICK, supra note 12, at 215.
54
Id.
55
Id. at 218-20.
56
Id. at 234, 250.
57
Id. at 292-93. Marie Lambert, the Surrogate Judge, “didn’t want any settlement in this, the biggest and
most highly publicized case of her judicial career. . . and she would not be a party to any eclipse.” Id. at 375.
58
MARGOLICK, supra note 12, at 363. Fees continued to grow as the trial continued. “Sullivan and Crom-
well had submitted bills for $750,000 in February and for another $900,000 in April.” Id. at 580.
59
Id. at 367, 384. (“It was hard enough for a healthy man to comprehend forty-eight pages of legalese . . .
how could it have ever been understood by an old and cancer-ridden man, unable to read a newspaper,
receiving round-the-clock nursing care, given to hallucinations and talking to people who weren’t even
there, who, the nursing notes confirmed, had been confused only a few hours before?” Id. at 368.).
60
Id.
61
Id. (Seward had endowed Harbor Branch during his lifetime with $150 million. Id. at 387.).
62
Id. at 372.
63
MARGOLICK, supra note 12, at 373. (The charity remained in the cases, allied with the children. Id. at
374.).
64
Id. at 390.
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110 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
threats of abandonment.
65
She “threatened him with public humiliation. She
threatened him with the most common of fears of all elderly and infirm people
regardless of their wealth: isolation, loneliness, and embarrassment in front of oth-
ers.”
66
Very quickly, the trial became centered around Basia and the control she
had over her husband, illustrated by her well-documented behavior. Reilly “con-
cocted a grand conspiracy. He had turned Basia’s temper tantrums and profligacy
and Nina’s casualness and naivete into indictable offenses.”
67
For Reilly, “[i]t was
his right to tell the jury how ‘obscene’ and ‘disgusting’ Nina’s fees were, about
how she had effectively written into Seward’s will a $900,000-a-year ‘pension
plan’ for herself.”
68
In a particularly strange turn of events, there was growing evidence that
the Judge, Marie Lambert, increasingly acted in a biased fashion towards Reilly,
who represented the children.
69
Jurors watched her “pampering Reilly and his wit-
nesses, then barking at Christ like a chihuahua, her mouth crinkling with contempt,
her bottom teeth exposed.”
70
Sensing failure, Christ’s client, Basia, demanded that
another attorney replace him for the rebuttal.
71
Sullivan & Cromwell offered
Marvin Schwartz, known as the firm’s “smartest and scrappiest litigator.”
72
But
here too, the Judge, “repeatedly cut off Schwartz to conduct mini-inquisitions of
her own.”
73
As the trial continued, seemingly in favor of the children, there was
worry that “Basia was getting ready to sue both Shearman & Sterling and Sullivan
& Cromwell for malpractice.”
74
After seventeen weeks of trial a settlement
seemed inevitable.
Multiple lawyers were involved in the settlement talks, including: Sulli-
van and Cromwell, Shearman and Sterling, Milbank, Dewey, and LeBoeuf.
75
Eventually, they agreed that each of the children would receive approximately $6
million tax-free, with the eldest, Junior, taking an additional $7 million to make
up for lost commissions.
76
Basia would be responsible for any unexpected tax lia-
bilities, and Harbor Branch would take $20 million, minus its attorney fees of $1
million owed to Dewey Ballentine.
77
And Basia would be responsible for $10 mil-
lion in attorney fees paid to Milbank, the attorneys for the children, plus she would
65
Id. at 392.
66
Id.
67
Id. at 397.
68
MARGOLICK, supra note 12 at 417.
69
Id. at 510.
70
Id. at 547. The New York Judicial Conduct Commission had a file on Judge Lambert “thick with com-
plaints that never got anywhere.”
71
Id. at 534.
72
Id. at 535.
73
MARGOLICK, supra note 12, at 541.
74
Id. at 582.
75
Id. at 584.
76
Id. at 586.
77
Id.
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be responsible for her own attorney fees from Sullivan & Cromwell and Shearman
& Sterling.
78
In total, the case would cost Basia $25 million.
79
Five years after Seward signed his final will that precipitated the fracas,
the litigation continued.
80
“Basia sued Shearman & Sterling, all of its partners, and
Nina Zagat for $115 million,” and throughout the next year the parties hired even
more law firms and lawyers.
81
Eventually Basia capitulated and paid both Nina
and Shearman & Sterling what she owed them.
82
“Once more, New York’s great
law firms had a feeding frenzy.”
83
Eventually, Basia resettled in Monaco, her
wealth estimated to be $3.6 billion at the time of her death in April 2013, making
her one of the world’s richest women.
84
Reflecting on the saga of Seward Johnson’s estate plan, inevitably the
question arises as to what could have been done differently to quash contest. Spe-
cifically, how could the expensive and time-consuming ordeal of litigation have
been avoided? Of course, this begs the question as to whether he had testamentary
capacity at the time he executed the Will, and whether undue influence was ex-
erted by Basia, in tandem with Nina Zagat. The case illustrates how it would be
far better to avoid these contests altogether. Perhaps it would be better to give it
all—or a substantial portion—away during lifetime. Would this work? The next
illustration explores inter-vivos gift-giving as a means to avoid a will contest.
B. Huguette Marcelle Clark
Huguette Clark, born in 1906, “was the heiress to one of America’s great-
est fortunes, dug out of the copper mines of Montana and Arizona.”
85
Her father,
William Andrews Clark, born in 1839, was a railroad and a copper baron, and a
United States Senator, until he was forced to resign because he paid bribes to get
the seat.
86
When he died, he “left an estate estimated at $100 million to $250 mil-
lion, worth up to $3.4 billion today,” of which Huguette received one-fifth.
87
Throughout her life these assets were managed for her by others, which permitted
her to live a reclusive existence until she died in May 2011 in Beth Israel Medical
Center in Manhattan, New York at the age of 104.
88
For the last twenty years of
78
Margolick, supra note 12, at 606. After the settlement was concluded, Sullivan & Cromwell “demanded
an additional $5 million in fees, on top of the $5 million it had already collected,” but Basia gave them only
$2.3 million plus a promise not to sue them for malpractice.
79
Id. at 586-87.
80
Id. at 607-08.
81
Id.
82
Id. at 609.
83
MARGOLICK, supra note 12, at 609.
84
BLOOMBERG News, Barbara Piasecka Johnson Dies at 76; Heiress to Johnson & Johnson Fortune,
L.A. TIMES (April 4, 2013), https://www.latimes.com/local/obituaries/la-me-barbara-piasecka-johnson-
20130405-story.html.
85
BILL DEDMAN & PAUL CLARK NEWELL, JR., EMPTY MANSIONS, at xvi -xvii (2013).
86
Id. at xvii.
87
Id.
88
Id. at xxii.
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112 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
her life, Huguette lived in a small hospital room, even though she owned a 25,000
square-foot summer estate in Santa Barbara, California,
89
a gray French mansion
with sweeping views of the Pacific. It was here that she was married on August
18, 1928, the groom was twenty-three and she was twenty-two, but the marriage
lasted only nine months before they were divorced.
90
Huguette and her husband moved into another one of her homes, Apart-
ment 12W, 907 Fifth Avenue, Manhattan, which contained five thousand square
feet, 17 rooms scrumptiously decorated, with a staff of ten.
91
After her Reno, Ne-
vada, divorce Huguette concentrated on collecting exquisitely made doll houses:
“These one-of-a-kind tabletop models were story houses, theaters with scenes and
characters painted on the walls. . . [and] the houses had to be in proportion to the
dolls that went with them.”
92
One of these unique structures cost $80,000 and took
two to three years to construct.
93
Huguette also had a country refuge in the leafy
suburbs of New Canaan, Connecticut “in case of a Russian attack on New York.”
94
The house had twenty-two rooms and fourteen thousand square feet, but Huguette
never furnished it with furniture; it remained empty for the six decades that she
owned it.
95
In spite of owning three very spacious homes, Huguette moved into Doc-
tor’s Hospital in Manhattan in 1991, and was assigned private nurses to care for
her twenty-four hours a day.
96
She was eighty-five years-old at the time and had
been admitted in order “to remove basal cell tumors and to reconstruct her lip,
right cheek, and right eyelid.”
97
The plan was that she would leave the hospital to
recuperate, but she never did, eventually paying $400,000.00 a year to live there.
98
Her internist commented that, “She was a lovely woman, and we would talk. Her
mind was clear. There was no confusion about her. Very warm, gracious, sweet,
gentle, interested in other people, independent, guarded.”
99
Indeed, “from age
eighty-five to well past one hundred . . . Huguette was remarkably healthy, requir-
ing no daily medications other than vitamins.”
100
89
Id. at 193.
90
Id. at 139. Huguette obtained a divorce in Reno, Nevada, on August 11, 1930. Id. at 141.
91
Id. at 126, 223. Eventually the apartment grew to fifteen thousand square feet. Id. at 149-51. The NY
apartment expanded to forty rooms, but only Huguette’s Aunt Pauline resided there until her death.
92
Id. at 177.
93
Id. at 182. At one point Huguette had 1,157 dolls in her Manhattan apartment, including: 600 antique
Japanese dolls, more than 400 French and German dolls, and dozens of the highly prized mechanical auto-
mations: a nurse, a dwarf, clowns, giraffes, parrots, marionettes. Id. at 244.
94
Id. at 213.
95
DEDMAN & NEWELL, supra note 84, at 214.
96
Id. at 229.
97
Id. at 230.
98
Id. at 230.
99
Id. at 231.
100
Id.
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While living at the hospital, Huguette was assigned a private nurse named
Hadassah Peri, who was married and had three children.
101
For “many years
Hadassah worked for Huguette from eight A.M. to eight P.M., twelve hours a day,
seven days a week, fifty-two weeks a year.”
102
Huguette also had a personal assis-
tant, Chris Sattler, who refurbished the Manhattan apartment, maintained her art
collection, and kept her financial records in order.
103
She also had an attorney, Don
Wallace, who scolded her for maintaining properties and personal possessions she
no longer needed, and for writing endless checks that required funds to be trans-
ferred so that the checks would not bounce.
104
It was he who hired Irving Kamsler,
a certified public accountant, to manage her finances.
105
Later, Wallace Bock be-
came her attorney after Don Wallace had a heart attack in 1997 and passed away
in 2002.
106
Huguette made very generous gifts to her nurse, Hadassah. In 1993, she
gave her $450,000.00 to purchase a home for her, her husband, and her three chil-
dren.
107
In addition, she paid for twenty years of schooling for Hadassah’s three
children, including college and graduate school.
108
She paid for the children’s
medical bills, piano lessons, violin lessons, and Hebrew lessons, their basketball
and summer camps, and she even paid back taxes owed by Hadassah’s husband.
109
In total, Huguette gave Hadassah $4.3 million for various homes, some money
characterized as loans, but quickly forgiven by Huguette.
110
There were gifts of
cars and minivans, including a rare Bentley automobile. There were also personal
checks made to each of Hadassah’s three children: Abraham for $628,250.00;
Geula for $621,250.00; and David for $706,550.00.
111
Another nurse, Geraldine Lehane Coffey, was given an apartment near
the hospital, a salary equal to Hadassah ($131,040.00), and $1 million in gifts,
112
but these gifts paled in comparison to what she gave to Hadassah. In 1999, she
101
Id.
102
Id. at 232. Hadassah was paid $30 an hour, $2,520 a week, $131,040 a year.” Id.
103
Id. at 240-41. Huguette paid Chris $90 an hour, and in 2006 he was paid $187,920, plus $18,000 for
health insurance, $9,000 for his two daughters’ tuition to Catholic schools, and a $60,000 Christmas gift.
Id. at 245.
104
Id. at 251. Huguette “had a fairy-tale checkbook, one that was refilled whenever it ran out of magic
beans.” Id. She gifted this attorney with antique dolls worth $130,000. Id. at 272.
105
DEDMAN & NEWELL, supra note 84, at 251. In 2009 Kamsler pleaded guilty to a single felony of at-
tempting to disseminate indecent material to minors, but he received no jail time, five years of probation, a
$5,000 fine, one-hundred hours of community service, and a listing on the state’s registry of sex offenders.
He was able to continue working as an accountant. Id. at 313.
106
Id. at 266.
107
Id. at 260. In 1999 Huguette bought an apartment for $149,589.00 for Hadassah’s older son and in 2000
paid $775,000.00 for a house for Hadassah’s brother so his family would have a place to stay when they
visited. Id. at 261.
108
Id. at 260.
109
Id. at 267. Hadassah’s husband Daniel received $1,503,813.00 from Huguette.
110
DEDMAN & NEWELL, supra note 84, at 262.
111
Id. at 263. In 2003 Huguette wrote 35 checks to Hadassah and her family in addition to her salary,
totaling $955,200. Id.
112
Id. at 265-66.
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114 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
“gave Hadassah two checks for $5 million each—along with an IOU, in the form
of a third check, also for $5 million, undated.”
113
Hadassah also received eighty-
four pieces of jewelry, appraised at $667,300.00, as well as two antique harpsi-
chords, a clavichord, and fifteen antique dolls, plus Hadassah’s son received a
Stradivari violin worth $1.2 million. “Counting all the gifts, Hadassah and her
family received at least $31,906,074.81 in cash and property from Huguette while
she was alive.”
114
By the time that Huguette died, she owed federal taxes of $82
million, including penalties and interest.
115
Huguette began selling some of her assets to pay for her accelerating gifts.
In 2001, she sold her best Stradivarius violin for $6 million, then in 2003 sold a
Renoir painting for $23.5 million, then her Connecticut home in 2005.
116
Huguette
needed the money, in part, because by then the hospital where she lived became
very active in seeking solicitations from her.
117
In 2000, she gave the hospital a
painting by Edouard Manet, which was sold for $3.5 million, but in March 2004
the hospital “proposed to Huguette that she transfer $106 million of her wealth to
the hospital.”
118
Huguette demurred, and never acted upon their proposal.
119
But
then, the hospital then told Huguette of rumors that the hospital would be sold, the
building demolished to make room for a high-end apartment complex, and there-
fore she would have to move someplace else.
120
Nonetheless, the hospital prom-
ised, “if she gave the hospital $125 million, or bought the building for that amount,
she could stay.”
121
Huguette resisted the hospital’s solicitation—shake down—
and agreed to move downtown to the main Beth Israel hospital. She moved to her
new home on July 27, 2004.
122
In 2006, Huguette passed her hundredth birthday and even though she
was in a new hospital, she became less of a recluse, writing checks for her
nurses.
123
Sadly, during this period of her life, many of the items of jewelry and
rare art that she owned began to disappear. However, Huguette, ever fearful of
publicity, never pursued the culprits, relying instead on compensation from those
responsible, which was far less than the items’ fair market value.
124
And at least
twice during this period of time her physician, Dr. Henry Singman, signed state-
ments attesting to her competence to make financial decisions.
125
113
Id. at 268. In 2009 Hadassah received payment of the promised $5 million. Id. at 315.
114
Id. at 269.
115
DEDMAN & NEWELL, supra note 84 at 333.
116
Id. at 274-76.
117
Id. at 282.
118
Id. at 283.
119
Id. at 285.
120
DEDMAN & NEWELL, supra note 84, at 285.
121
Id.
122
Id. at 288.
123
Id. at 289.
124
See id. at 290-93.
125
DEDMAN & NEWELL, supra note 84, at 291.
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In spite of her age, Huguette never signed a will until March 7, 2005.
126
The then three-page document left her estate to her intestate heirs, the very people
who would inherit if she had not made a will.
127
But the document also bequeathed
$5 million to Hadassah.
128
Her attorney, Wallace Bock, and her accountant, Irving
Kamsler, were to become her executors, each receiving commissions under state
law of roughly $3.1 million each.
129
Then, on April 19, 2005, Huguette signed a
second will, which was radically different from the first, since this second will
excluded any members of her family, “having had minimal contacts with them
over the years.”
130
Instead, the will created the Bellosguardo Foundation, a charity,
to which she left “all but one of her paintings, including her own works and the
masterworks she still owned, and her books and musical instruments.”
131
Her at-
torney and accountant received modest specific bequests, but they also were
named as trustees of the Bellosguardo Foundation, which would generate fees for
them in perpetuity. There were others who received modest bequests, but Hadas-
sah received all of her dolls and dollhouses,
132
and sixty-percent of the remainder
not given away to others.
133
By 2008, three years prior to her death, Huguette’s relatives began to
“mobilize,” seeking information on their reclusive distant relative.
134
By Septem-
ber 2010, three of Huguette’s relatives petitioned the court to have a guardian ap-
pointed to oversee her financial affairs but the Judge denied the petition without a
hearing, determining there was no evidence of financial impropriety.
135
No other
petitions were filed, and then Huguette died on May 24, 2011, two weeks short of
her 105
th
birthday.
136
Her wish was that there be no funeral, and her casket was
placed on a shelf built under her mother’s crypt located in Woodlawn Cemetery,
New York.
137
By 2012, nineteen of Huguette’s relatives, her half-grandnieces and
grandnephews, plus her half-great-grandnieces and grandnephews, filed suit to
contest her Will, alleging that she had been defrauded by her attorney, her account-
ant, and her nurse.
138
If the Will was successfully challenged, Hugette’s relatives
would each receive a share of approximately $300 million, which meant that they
126
Id. at 294.
127
Id. at 295.
128
Id. at 294.
129
Id. at 297. The attorney, Wallace Bock, referred to this will as a “stepping stone,” meaning that others
were meant to follow. Id.
130
DEDMAN & NEWELL, supra note 84, at 298-99.
131
Id.
132
Id.
133
Id. at 298-300.
134
Id. at 310.
135
DEDMAN & NEWELL, supra note 84, at 318-19.
136
Id. at 322.
137
Id.
138
Id. at 326.
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116 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
would inherit Bellosguardo, the jewels, the paintings, and the dolls.
139
The people
and institutions that had been a part of Huguette’s life would receive nothing. In
addition to fraud, the family also argued that the Will was not executed properly,
that Huguette was unduly influenced by the persons who would benefit most by
the Will, and that Huguette lacked the testamentary capacity to execute the Will.
140
Prior to the start of trial, the state surrogate Judge appointed a public ad-
ministrator who, upon appointment, dismissed Huguette’s attorney, Bock, and her
accountant, Kamsler, because it was discovered that they had not filed gift taxes
due on all of the gifts made by Huguette during her lifetime.
141
As a result, “[o]ne-
quarter of her estate could be eaten up by the bill from the Internal Revenue Ser-
vice.”
142
This same judge also sought to recover gifts made during Huguette’s life-
time to persons whose financial or medical roles placed them in a confidential
relationship with the donor.
143
“Under New York law, any gift to a person in a
confidential relationship is presumed to be the result of undue influence . . . [and]
the recipient has the burden of proving that the gift was proper.”
144
Settlement negotiations began in 2012, with the family on one side and
all of the beneficiaries on the other, to include the New York Attorney General,
who sought to protect the interests of the charities involved.
145
“There was strong
reason for all sides to settle: It would ensure that the lawyers got paid.”
146
To meet
the demands of estate administration, the public administrator began selling prop-
erty during settlement talks, which included valuable pieces of jewelry held in
storage since the 1930s, her Fifth Avenue apartment, and her Connecticut man-
sion, which she never occupied.
147
By September 2013, a settlement agreement
was reached and accepted by the Surrogate Court judge just as jury selection was
about to resume.
148
The agreement provided that: first, the relatives would receive
$34.5 million, even though the Will excluded them; second, the Bellosguardo
Foundation would be established, with the New York Attorney General forming
the first board of directors, even though the charity is located in California; third,
the Estate would pay all taxes and legal fees, including about $25 million in legal
fees; fourth, Hadassah would receive nothing from the will and would be required
139
Id. at 325. “Fourteen of the nineteen acknowledged in court papers that they had never met Huguette.”
Id. at 326.
140
DEDMAN & NEWELL, supra note 84, at 337-38.
141
Id. at 333.
142
Id. The judge filed malpractice claims against them on behalf of Huguette’s estate and they lost $6
million in fees.
143
Id. at 336.
144
Id.
145
DEDMAN & NEWELL, supra note 84, at 343. By 2013 the Attorney General focused on supporting the
will, but excluding bequests to the nurse and others in confidential relationships with Huguette.
146
Id. at 346. (“At least sixty-two attorneys were named in court papers in this case, with dozens of others
working behind scenes.”). Id.
147
Id. at 348-49.
148
Bill Dedman, Huguette Clark’s $300 Million Copper Fortune is Divided Up: Here’s the Deal, NBC
NEWS (Sept. 24, 2013), https://www.nbcnews.com/news/world/huguette-clarks-300-million-copper-for-
tune-divided-heres-deal-flna4b11244681.
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to return $5 million to the Estate, but was allowed to retain the other gifts she
received throughout the many years she served Huguette.
149
Attorneys for the relatives received $11.5 million in fees, while attorneys
hired by Huguette’s attorney, Wallace Bock, to support probate of the Will, re-
ceived $11.5 million in addition to $2 million already paid.
150
In a statement pub-
lished by Holland & Knight, the law firm representing the probate of the Will
asserted that, “Holland & Knight. . . provided strategic counsel to navigate both
interpersonal relationships and probate court considerations.”
151
The firm speci-
fied, “The case was complicated because while few people outside of the hospital
saw Ms. Clark, there were many people with whom she had contact by phone and
correspondence.”
152
The firm offered specifics, “Beginning in November 2011,
Holland and Knight attorneys from the firm’s offices in Los Angeles, New York,
San Francisco and Tampa worked through the necessary discovery in such a large
case.”
153
Discovery covered Huguette’s entire 104-year life, and “during the sum-
mer of 2012, Holland & Knight conducted 54 depositions taken in three countries
as well as in New York City and throughout California.”
154
The relatives of Huguette claimed they were seeking redress from, among
other claims, the elder abuse perpetrated upon Huguette by her hospital, nurses,
attorney, and accountant,
155
but it was universally accepted by those who knew
her the longest that she “was a remarkable woman who knew her own mind.”
156
What could she have done differently to dispose of her assets in the manner that
she indicated she desired?
C. Sumner M. Redstone
In August 2020, Sumner Redstone died at his home in Beverly Park, Cal-
ifornia. He was ninety-seven years-old, a self-made billionaire, and for decades a
titan in the media industry.
157
He coined the phrase “Content is King,” acquiring
a cinema chain founded by his father in 1954, then he acquired control of Viacom
in 1987 and spun off CBS in 2006, but the two companies reunited in a merger in
2019.
158
At the time of his death, Sumner was the Chairman Emeritus of
149
Id.
150
Id.; see also HOLLAND & KNIGHT, Heiress’ $300 million Estate Dispute Settled,
https://www.hklaw.com/en/case-studies/heiress-300-million-estate-dispute-settled (last visited Sept. 14,
2023).
151
HOLLAND & KNIGHT, supra note 150.
152
Id.
153
Id.
154
Id.
155
Id.
156
DEDMAN & NEWELL, supra note 84 at 355.
157
Nicole Bitette, Sumner M Redstone, Chairman Emeritus of ViacomCBS, Dies at 97, PARAMOUNT (Au-
gust 11, 2020), https://www.paramount.com/news/company-news/sumner-m-redstone-chairman-emeritus-
of-viacomcbs-dies-at-97#:~:text=He%20was%2097.,serving%20as%20CEO%20since%201967.
158
FORBES, Sumner Redstone, https://www.forbes.com/profile/sumner-redstone/?sh=54b64ef64dcb (last
visited Sept. 14, 2023).
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118 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
ViacomCBS, the Chairman and CEO of National Amusements, the controlling
shareholder of ViacomCBS, and at one time an investor in Twentieth Century Fox
and Columbia Pictures.
159
He was raised in a modest household, but he was exceptionally bright,
graduating from the prestigious Boston Latin School, winning a scholarship to
Harvard College, and later graduating from Harvard Law School.
160
When he was
twenty-four years-old he married Phyllis Raphael, and together they had two chil-
dren, Brent and Shari.
161
But from early in his life, Sumner was involved with
multiple women at the same time, often buying them homes and jewelry.
162
This
prompted Phyllis to divorce him, citing adultery and cruelty.
163
The divorce final-
ized in 2002.
164
By then, he had taken over his father’s two drive-in movie theaters, even-
tually starting a chain of movie theaters and multiscreen indoor cinemas.
165
By
October 2000, “Forbes estimated his net worth at an astonishing $14 billion.”
166
Even though his divorce from Phyllis was costly, Sumner married again, this time
to Paula Fortunato, and together they moved into “a sprawling eight-bedroom
house with sweeping views of downtown Los Angeles from its infinity pool and
adjoining hot tub.”
167
But this marriage also ended in divorce in 2008, Sumner
exceeding the terms of the couple’s prenuptial agreement, buying her a “$4 million
home in Beverly Hills and a $2.6 million condo in Florida.”
168
A constant presence in Sumner’s life was his daughter, Shari, who like
her father, was a Harvard educated attorney, and the mother of three children.
169
Her principal residence was her apartment in the tower of the Pierre Hotel in New
York City.
170
Eventually, she joined the boards at Viacom and CBS, and became
vice president of corporate strategy at National Amusements.
171
Her brother,
Brent, had sided with his mother, Phyllis, in her divorce from Sumner.
172
This was
an issue for Sumner, the father eventually sidelining Brent, yet allowing him to
159
Bitette, supra note 157.
160
JAMES B. STEWART & RACHEL ABRAMS, UNSCRIPTED: THE EPIC BATTLE FOR A MEDIA EMPIRE AND
THE REDSTONE FAMILY LEGACY 13 (2023).
161
Id.
162
Id. at 15.
163
Id. at 16.
164
Id. at 18.
165
STEWART & ABRAMS, supra note 160, at 13.
166
Id. at 14. By 2009, Forbes estimated that Sumner’s net worth had dropped to $1 billion. Id. at 36. Yet
in 2014, in spite of mental and physical handicaps, CBS paid him $10.75 million; Viacom paid him $13
million. Id. at 100.
167
Id. at 19. Paula was eight years younger than Sumner’s daughter, Shari. Id. at 24.
168
Id. at 23.
169
Id. at 24.
170
James B. Stewart & Rachel Abrams, ‘She Won’t Be Manageable’ They Said. Now She’s in Charge,
N.Y. TIMES, (Feb. 15, 2023), https://www.nytimes.com/2023/02/09/business/shari-redstone-les-moonves-
cbs-paramount.html.
171
STEWART & ABRAMS, supra note 160, at 25.
172
Id. at 26.
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remain as a director at National Amusements.
173
In all, Sumner’s immediate fam-
ily consisted of two children and five adult grandchildren.
174
Frequently, Shari complained about Sumner’s gifts to others. “Shari ob-
jected when Sumner decided to make $105 million in charitable gifts in his name
to several hospitals.”
175
And she watched passively when Sumner became in-
volved with another woman, Malia Andelin, to whom he gave six and seven-figure
deposits of cash and CBS and Viacom stock.
176
And there were others: Rohini
Singh, to whom Sumner gave stock and reportedly $18 million; Terry Holbrook,
to whom he gave a $2.5 million house, $7 million in payments, and made her a
beneficiary of his trust.
177
“Over the years Sumner amended his trust more than
forty times to add and remove numerous beneficiaries, many of them women he
dated.”
178
A co-trustee reported that “‘several’ women received over $20 million
each, ‘a lot’ of women received over $10 million, and ‘many, many’ women re-
ceived over $1 million” each.
179
Eventually, in 2011, Sumner met another woman he sought to marry, her
name was Sydney Holland.
180
As he had done with others, he bought her a house
in West Hollywood, near Beverly Hills, a Porsche, membership in a country club,
and an ample supply of cash.
181
Yet, he still maintained his relationship with Malia
Andelin and Manuela Herzer, the latter of whom he gifted, “a $3.85 million house
in Beverly Hills and made her a joint tenant of his apartment in New York’s Car-
lyle Hotel.”
182
But he also invited Herzer and her daughter to live with him while
her home was being renovated, which meant that she would become friends with
Holland, now a permanent resident at the home with Sumner.
183
The two women,
Holland and Herzer, began to exert increasing control over Sumner, blocking calls
from his family and then telling him that “his family never called.”
184
Similarly,
they were jealous of Sumner’s affection for Malia Andelin, but, nevertheless, they
often helped Sumner buy her expensive gifts, “like diamond earrings and a Rolex
watch, sometimes inflating the tab by adding purchases of clothing and jewelry
for themselves.”
185
By the time Sumner turned ninety in May 2013, Holland and Herzer were
firmly ensconced in his life. He amended his intervivos trust in September 2013,
173
Id. Eventually Sumner purchased Brent’s share of National Amusements for $240 million. Id. at 28.
174
Id. at 138.
175
Id. at 34. Sumner had given $30 million to George Washington University and $10 million to Al Gore’s
Climate Reality Project. Id. at 64.
176
STEWART & ABRAMS, supra note 158, at 61.
177
Id. at 42.
178
Id.
179
Id.
180
Id. at 51.
181
STEWART & ABRAMS, supra note 158, at 51-52.
182
Id. at 9-10.
183
Id. at 56. The house renovations continued for a lengthy time, costing $9 million after two years.
184
Id. at 58.
185
Id. at 60.
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120 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
specifying that Holland receive “a minimum of $20 million when he died, and up
to $45 million; Herzer would receive the same amount, and each of her three chil-
dren would receive $1.5 million.”
186
He also deleted Shari, his daughter, from his
will.
187
But the two women wanted to get the money now, rather than when
Sumner died, so by 2014 they cajoled him to sell a portion of Viacom and CBS
stock, and give each of them $45 million outright.
188
They told Sumner that, “If
he loved them . . . he would cash out. If he did not, he would die alone.”
189
He
made the transfers, and then had to deal with his accountants and lawyers so as to
find a way to pay the gift and other taxes involved.
190
Fearful that others would
allege that Sumner was unduly influenced by the two women, they asked Sumner
to meet with a geriatric specialist, who concluded that Sumner’s actions reflected
“his own authentic wishes, and the not influence of others.”
191
Much to the chagrin of Shari, Sumner’s daughter, Holland and Herzer
continued to benefit from Sumner’s relentless shifting of assets away from his
daughter and grandchildren to the two women.
192
By then, he was increasingly
dependent on the two women and his nursing staff: he had a feeding tube, a cath-
eter, his speech was seriously impaired, and he could not walk unassisted.
193
Shari
still visited him with her children, and she maintained regular contact with mem-
bers of his nursing staff.
194
But she “felt there was nothing more she could do,”
195
so she began plans to sell her share of stock in National Amusements to Sumner
for “$1 billion in cash and stock, tax free.”
196
Sumner was in agreement, but Hol-
land and Herzer prompted Sumner to impose a new condition upon her, that “Shari
had to agree not to contest any of the enormous gifts he’d made (and was contin-
uing to make) to Holland and Herzer.”
197
Shari refused to agree and negotiations
ceased.
198
Conditions changed suddenly when Sumner discovered that Holland was
having an affair with another man, which prompted him to order her to vacate his
186
STEWART & ABRAMS, supra note 158, at 71. Holland and Herzer also “received combined cash gifts
of $9.1 million in 2013” alone.
187
Id. During 2014 Holland and Herzer amassed $3.5 million in credit card charges, paid for by Sumner.
Id. at 82-83. After Sumner ejected Holland from his home and severed contact, Herzer amassed “$365,000
in credit card charges paid by Sumner,” and Herzer got “him to sign for a delivery of $40,000 in cash and
agree to a $5 million donation to her personal foundation.” Id. at 133.
188
Id. at 158.
189
Id. at 73.
190
Id.
191
STEWART & ABRAMS, supra note 158, at 75.
192
Id. at 104. In June 2015 “Sumner transferred an additional $10 million to Holland and Herzer.”
193
Id. at 88.
194
Id. at 89–90.
195
Id. at 91.
196
STEWART & ABRAMS, supra note 158, at 95.
197
Id. Holland and Herzer also wanted control over Sumner’s funeral, to include excluding family mem-
bers. Id. at 96.
198
Id.
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2024 FREEDOM TO GIVE, DEVISE, AND BEQUEATH 121
house.
199
He also eradicated Holland from his will, now giving Herzer $50 million
plus his home, worth an additional $20 million.
200
Herzer responded to her new
exalted status by installing hidden cameras throughout the house, tightening con-
trol over the staff, restricting access by Holland or Sumner’s family, and barring
staff from reading newspapers to Sumner.
201
She even arranged for a female per-
sonal assistant to minister to the “sexual appetites of a ninety-two-year-old
man.”
202
But, her control did not extend to the household staff and eventually they
rebelled against Herzer, confronting Sumner with the various deceptions she had
perpetrated upon him.
203
Sumner responded by demanding that she vacate the
house, telling staff that “he wanted [Herzer] out of his will and he wanted all of
his money back.”
204
Four days later, Sumner removed Herzer and her children
from his will. Everything would now go to charity.
205
With no women living with him, Sumner’s daughter, Shari, attempted to
fill the void with visits and phone calls.
206
She was a member of the boards of both
Viacom and CBS so she kept her father informed as to business matters, a topic
he relished as he was still the controlling shareholder at CBS and Viacom. In Feb-
ruary 2016, he resigned as executive chairman and as a director of each com-
pany.
207
His mental and physical condition had deteriorated further, but he “re-
mained intent on getting his millions back from Holland and Herzer, asking his
attorney about it repeatedly and demanding that [the attorney] take legal action
against the women.”
208
But, after she was dismissed, Herzer filed suit alleging that
Sumner lacked the mental capacity to remove her as his health care proxy, a suit
that almost settled out of court with Herzer getting another $30 million and the
New York City Carlyle apartment, worth $5 million, plus she could keep all of the
money that Sumner had already given to her.
209
Failing to agree on a settlement,
Herzer’s suit went to trial, which resulted in a verdict against her and a win for
Shari, Sumner’s daughter.
210
In 2016, attorneys for Sumner filed an elder financial abuse lawsuit
against Holland and Herzer, alleging that they manipulated and emotionally
abused him during the more than five years they occupied his home, taking from
him more than $150 million.
211
But Shari wanted to avoid litigation and more
199
Id. at 120.
200
Id. at 121.
201
STEWART & ABRAMS, supra note 158, at 121-22.
202
Id. at 123.
203
Id. at 203.
204
Id. at 134. “Sumner was adamant: he still wanted his money back from Holland and Herzer. The two
women had lied to and cheated him.” Id. at 185.
205
Id. at 136.
206
STEWART & ABRAMS, supra note 158, at 136.
207
Id. at 147.
208
Id. at 157.
209
Id. at 159. As a result of the proposed settlement her attorney would have earned a $13 million contin-
gency fee.
210
Id. at 166.
211
STEWART & ABRAMS, supra note 158, at 186-87.
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122 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
revelations about Sumner’s sexual activities, so she pressed her father to settle
with Holland and Herzer, and he finally agreed to end the elder abuse suit.
212
Each
of the women forfeited a small portion of the money and gifts they received from
Sumner and went their separate ways.
213
Shari became the chair at ViacomCBS
and was ranked as twenty-fourth on its list of the world’s most powerful women.
214
And it was she who arranged her father’s funeral when he died at the age of ninety-
seven at his home in Los Angeles on October 11, 2020.
215
III. THE CHALLENGE OF GIVING
A. Age
Almost always age is the common denominator in litigation involving the
freedom to give, devise, and bequeath, which suggests the number of cases will
increase significantly. “The number of people age 65 and older in the United States
has grown rapidly over most of the 20th century, from 3.1 million in 1900 to 35
million in 2000;” as of 2020, 51% of these people lived in nine states.
216
And the
number continues to expand. From now until 2030, an additional 10,000 persons
will celebrate their sixty-fifth birthday each day.
217
But with age often comes af-
flictions. Among persons age sixty-five and older, it is estimated that 6.7 million
suffer from Alzheimer’s disease, and certainly many more are affected by a
broader range of dementia, which includes a wide range of abnormal brain
changes.
218
These changes may precipitate a decline in cognitive skills, affecting
behavior, feelings, and relationships.
219
“About 5%-8% of adults over age 65 have
some form of dementia. This percentage doubles every 5 years after 65. As many
as half of people in their 80s have some dementia.”
220
212
Id. at 333.
213
Id.
214
Id. at 339.
215
Id. at 343.
216
U.S. CENSUS BUREAU, By 2030, All Baby Boomers Will Be Age 65 or Older, https://www.census.gov/li-
brary/stories/2019/12/by-2030-all-baby-boomers-will-be-age-65-or-older.html.; U.S. DEP’T OF HEALTH
AND HUM. SERVS., ADMIN. FOR CMTY. LIVING, Profile of Older Americans (2021), https://acl.gov/aging-
and-disability-in-america/data-and-research/profile-older-americans (California, 6 million; Florida, 4.6 mil-
lion; Texas, 3.9 million; New York, 3.4 million; Pennsylvania, 2.4 million; Ohio, 2.1 million; Illinois, 2.1
million; North Carolina, 1.8 million; Michigan, 1.8 million).
217
GENWORTH, Cost of Care Survey (2022), https://www.genworth.com/aging-and-you/finances/cost-of-
care.html.
218
ALZHEIMER’S ASS’N, 2023 Alzheimer’s Disease Facts and Figures (2023),
https://www.alz.org/alzheimers-dementia/facts-figures?utm_source=google&utm_me-
dium=paidsearch&utm_campaign=google_grants&utm_content=alz-
heimers&gad=1&gclid=Cj0KCQjwk96lBhDHARIsAEKO4xavBQaBnrcqaP-
fbcKZywza3Wun3Eq5fUpYL7TxR6-oo-3NJeUCVFmIaAql8EALw_wcB.
219
ALZHEIMER’S ASS’N, What is Dementia, https://www.alz.org/alzheimers-dementia/what-is-demen-
tia?utm_source=google&utm_medium=paidsearch&utm_campaign=google_grants&utm_content=demen-
tia&gad=1&gclid=Cj0KCQjwk96lBhDHARI-
sAEKO4xbvYY4b6EQz6sOds5kozsJ3FU15UqejsL5BZXBYSjbVxR5PbZCJAnEaAkm-EALw_wcB.
220
WEBMD, Dementia, https://www.webmd.com/alzheimers/types-dementia.
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2024 FREEDOM TO GIVE, DEVISE, AND BEQUEATH 123
The three persons illustrated in this Article, all lived very long lives and
made gifts and executed trusts and wills until the end of their lives. Seward John-
son died at age eighty-nine; Huguette Clark died at age 104; and Sumner Redstone
died at age ninety-seven.
221
Statistics indicate that these persons probably had
some form of dementia, since one-third of all persons over the age of eighty-five
do.
222
But in spite of statistics, dementia “is not a normal part of aging. Many
people live into their 90s and beyond without any signs of dementia.”
223
So how
do we tell? How can we establish that a person has lost his or her cognitive ability
to such a degree that his or her actions do not reflect his or her intent, which is
deficiency in donative or testamentary capacity? Or that a person’s capacity is so
diminished that his or her intent is dominated by another, which is the basis for
undue influence?
Mindful of capacity and undue influence, inter-vivos donees and testa-
mentary heirs of Johnson, Clark, and Redstone, all proponents of making their
gifts, trusts, and wills valid, sought to establish mental capacity commensurate
with transfers made. Opposing them, the Johnson children alleged that “their fa-
ther lacked the capacity to make a will . . . [and] that the will had been procured
‘by fraud, duress and undue influence’ on the part of Seward Johnson’s widow.”
224
Attorneys for Johnson’s children argued that: “It was hard enough for a healthy
man to comprehend forty-eight pages of legalese . . . [so how] could it have ever
been understood by an old and cancer-ridden man, unable to read a newspaper,
receiving round-the-clock nursing care, given to hallucinating and talking to peo-
ple who weren’t even there. . .?”
225
In response, the heirs, such as those of John-
son, produced testimony taken from nurses and even doctors, one of Johnson’s
doctors actually signed a form immediately after Johnson’s last will was exe-
cuted.
226
The form the doctor signed certified that Johnson possessed “sound mind
and memory and [was] aware of his acts.”
227
In a similar pattern, the nineteen distant relatives of Huguette Clark “ac-
cused [her] attorney and accountant and nurse of fraud, and described Beth Israel
as Huguette’s jailer, keeping a scared, vulnerable old woman closeted as part of a
plot to take her money.”
228
The attorneys for these relatives acted in accordance
with all similar contests, alleging that their clients sought relief not for themselves,
but rather that the decedent’s “true wishes are honored and that justice is done.”
229
But, a significant portion of Huguette’s wealth had been given away during her
221
MARGOLICK, supra note 12, at 172; BILL DEDMAN & PAUL CLARK NEWELL, JR., EMPTY MANSIONS, at
xxii (2013); Bitette, supra note 157.
222
NAT’L INST. ON AGING, What is Dementia? Symptoms, Types, Diagnosis (2022).
https://www.nia.nih.gov/health/what-is-dementia.
223
Id.
224
MARGOLICK, supra note 12, at 215.
225
Id. at 368.
226
Id. at 158.
227
Id.
228
DEDMAN & NEWELL, supra note 84 at 326.
229
Id.
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124 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
lifetime, and this is perhaps why there was no independent physician to examine
Huguette and swear to her competence at the time of execution of the will.
230
Similar to Huguette Clark, Sumner Redstone gave significant portions of
his wealth to unrelated persons during his lifetime. This prompts the issue of
whether the donative gifts were the product of elder financial abuse perpetrated by
the two women to whom he made significant intervivos gifts. Elder abuse is a
significant problem, illustrated by the complaint filed by members of Sumner’s
staff with the Los Angeles County Adult Protective Services.
231
Staff alleged that
the two women, Holland and Herzer, “were emotionally and financially abusing”
Sumner, “leading him to believe that if he did not keep them financially satisfied,
he would die alone because they were the only people who loved him.”
232
It was
the allegation of elder abuse against each of the two women, rather than fraud,
lack of testamentary capacity, or undue influence, that Sumner’s attorneys would
allege to recover the enormous gifts made to the two women during his lifetime.
But nothing became of this since Sumner settled with both of the women shortly
before his death, purportedly to save himself embarrassment and stress.
233
B. Thicket of Mental Incapacity
Litigation arising from alleged mental incapacity is abundant, providing
a thicket that any donee, legate, or devisee must overcome to obtain bestowed
property. The most frequent petitions involve an alleged lack of mental capacity
to execute a will, make a gift, or create an intervivos trust.
234
Concomitantly,
whether the testator or settlor was unduly influenced into making the transfer.
235
Similarly, contestants may allege fraud,
236
unjust enrichment,
237
conversion,
238
theft, duress,
239
intentional infliction of emotional distress, and an array of probate
obstacles, such as a will not being properly executed.
240
These are traditional
230
Id. at 337.
231
STEWART & ABRAMS, supra note 158, at 99.
232
Id.
233
Id. at 333.
234
See, e.g., Getty v. Getty, 581 S.W.3d 548, 564 (Ky. 2019) (sustaining jury verdict that testator lacked
testamentary capacity at the time of execution).
235
See, e.g., Moriarty v. Moriarty, 150 N.E.3d 616, 624 (Ind. Ct. App. 2020) (court held that decedent’s
new spouse unduly influenced him to exclude his children from his former spouse from his will).
236
See, e.g., Levy v. Levy, 187 N.Y.S.3d 286, 289 (N.Y. App. Div. 2023) (holding that the plaintiff’s claim
of fraud should be dismissed as plaintiff failed to state in sufficient detail the circumstances constituting the
wrong).
237
See, e.g., Salitsky v. D’Attanasio, 186 N.Y.S. 3d 173, 175 (N.Y. App. Div. 2023) (specifying that the
basis of a claim for unjust enrichment is that the defendant has obtained a benefit that in equity and good
conscience should be paid to the plaintiff).
238
See, e.g., Matter of Wolin, 188 N.Y.S.3d 395, 400 (N.Y. App. Div. 2023) (discussing an action for
conversion).
239
See, e.g., D’Onofrio v. Mother of God with Eternal Life, 79 N.Y.S.3d 902 (N.Y. App. Div. 2018)
(holding that duress is established where the evidence shows that the party making the claim was forced to
agree to it by means of a wrongful threat precluding the exercise of free will).
240
See, e.g., Stevens v. Casdorph, 508 S.E.2d 610 (W. Va. 1998) (holding that will is invalid because
execution did not meet state requirements of presence).
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causes of action, but of a more recent vintage is the tort action arising from the
intentional interference with an expectancy,
241
which requires that “a defendant
acts with purpose to deprive the plaintiff of her expectancy to that same inher-
itance,” and including that the defendant knew of the plaintiff’s expectancy.
242
The
tort is evolving among the states, there remains tension between the availability of
the tort claim and redress through the ordinary probate process. Hence, the tort is
not available to a plaintiff who had the right to seek a remedy for the same claim
in a probate court.
243
And tandem to remedies in tort, states have become increas-
ingly aggressive in providing redress for the financial abuse of elders.
244
This issue
has become so prominent that it will be discussed separately, infra.
Mental incapacity litigation is enabled by the elusive parameters of what
constitutes incapacity; how do you define it?
245
Courts instruct juries that:
evidence of sickness, old age, peculiarities, eccentricities in dress
or oddities of habit, forgetfulness, inability to recognize friends,
feebleness resulting from illness, and other facts or circum-
stances not inconsistent with the ability to understand the ordi-
nary affairs of life, comprehend the nature and extent of one’s
property and the natural objects of his bounty, and which are not
inconsistent with sanity, cannot be used as a basis for the opinion
testimony of a lay witness that a person is of unsound mind or
insane.
246
And any inquiry into mental incapacity must begin with an adult’s right
to Due Process,
247
meaning that there exists at law a presumption that a person
possesses capacity at the start of any proceeding pertaining to restrictions placed
upon the adult.
248
Likewise, a presumption of capacity applies to the ability to
241
See RESTATEMENT (THIRD) OF TORTS § 19 cmt. c; see also Matter of Estate of Osguthorpe v. Rudd,
491 P.3d 894 (Utah 2021) (providing an extensive analysis of the tort); Nelsen v. Nelsen, 508 P.3d 301, 331
(Idaho 2022) (stating that twenty-five of the forty-two states that have considered the tort have adopted it);
Moriarty, 150 N.E.3d at 616 (concluding that plaintiffs stated a valid claim for tortious interference with an
expectancy).
242
Buboltz v. Biusingh, 962 N.W.2d 747, 753 (Iowa 2021); see, e.g., Moriarty, 150 N.E.3d at 625 (holding
that plaintiffs stated a valid claim for tortious interference with an expectancy).
243
See Matter of Estate of Osguthorpe, 491 P.3d at 915 (Utah 2021) (citing RESTATEMENT (THIRD) OF
TORTS § 19(2) (AM. L. INST. 2020)).
244
See, e.g., U.S. DEP’T OF JUST., Elder Abuse and Elder Financial Exploitation, http://ww.jus-
tice.gov/elderjustice/prosecutors/statutes.
245
See generally Julie Jason, How to Handle a Client’s Suspected Cognitive Impairment, 161 TR. & EST.
20 (2022).
246
Barnes v. Marshall, 467 S.W.2d 70, 77 (Mo. 1971).
247
See, e.g., State ex rel. Shamblin v. Collier, 445 S.E.2d 736 (W. Va. 1994).
248
Holmes v. Burchett, 766 So.2d 387 (Fla. Dist. Ct. App. 2000); see also IDAHO CODE § 15-5-303(a)
(1971) (specifying that incapacitated persons be permitted to participate as fully as possible in all decisions
affecting them).
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126 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
make a gift,
249
and this presumption must be rebutted with at least clear and con-
vincing evidence.
250
And of course, a donor’s age is a compounding factor. Because age is
often accompanied by various illnesses, bias generated by degenerating physical
abilities occurs,
251
but a failing body does not presuppose a failing mind. Statistics
indicate that in 2020, 18% of adults sixty-five and older reported that they could
not function properly seeing (21%), hearing (29%), walking or climbing stairs
(39%), understanding or being understood by others (8%), remembering or con-
centrating (28%), or dressing or washing themselves thoroughly (8%).
252
Judges
caution juries on objectivity: “Merely being an older person, possessing a failing
memory, momentary forgetfulness, weakness of mental powers or lack of strict
coherence in conversation does not render one incapable of validly executing a
will.”
253
Likewise, a presumption of undue influence does not arise simply because
the grantor is old, physically infirm or uneducated.
254
In response, objective cri-
teria have developed. To establish undue influence, for example, plaintiff must
sufficiently allege that, (1) the testator was susceptible; (2) the recipient had an
opportunity to exert such influence; (3) the fact that there was at least an attempt
to exercise undue influence; and (4) there was a result demonstrating the effect of
such influence.
255
Objective factors, together with a court’s strong desire to effectuate a tes-
tator’s actual testamentary desire,
256
and the minimal degree of mental capacity
required to execute a will,
257
ostensibly appear sufficient to ensure freedom to
give, devise, and bequeath. However, as the facts surrounding gifts made by the
three persons illustrated in this Article indicate, it is not simply the ability to pre-
vail on any claim involving mental incapacity, what matters most is the boost these
mental capacity facts give to contestants with standing to bring a contest at all.
The color of incapacity is sufficient to generate a contest. And it is not about win-
ning or losing the contest. Indeed, contest—litigation—is arduous, very expensive,
249
See, e.g., Blair v. Richardson, 381 P.3d 717, 720 (Ok. 2016) (specifying by statute that just because a
person is admitted to a mental institution does not mean that this person automatically loses mental capac-
ity); Matter of Estate of Finstrom, 950 N.W.2d 401, 415 (N.D. 2020) (just because a parent deeds property
to a child, or that some children are favored to the exclusion of others, does not raise a presumption of undue
influence).
250
See, e.g., In re Guardianship and Conservatorship of Hartwig, 656 N.W.2d 268 (Neb. Ct. App. 2003).
251
See, e.g., Hadda v. Maalouf-Masek, 200 N.E.3d 1276, 1285 (Ohio Ct. App. 2022) (including age as
one factor precipitating susceptibility to undue influence).
252
U.S. DEP’T OF HEALTH AND HUM. SERVS., ADMIN. FOR CMTY. LIVING , 2021 Profile of Older Ameri-
cans 18 (2022), https://acl.gov/sites/default/files/Profile%20of%20OA/2021%20Pro-
file%20of%20OA/2021ProfileOlderAmericans_508.pdf.
253
Getty v. Getty, 581 S.W.3d 548, 554 (Ky. 2019).
254
Gmeiner v. Yacte, 592 P.2d 57, 63-64 (Idaho 1979).
255
Hadda, 200 N.E.3d at 1290; Nelsen v. Nelsen, 508 P.3d 301, 327 (Idaho 2022) (undue influence per-
taining to an inter-vivos gift requires proof of four elements); Matter of Estate of Finstrom, 950 N.W.2d
401, 407-08 (N.D. 2020) (undue influence requires three factors).
256
See, e.g., Vaicunas v. Gaylord, 230 A.3d 826, 830 (Conn. App. 2020) (holding that there was no proof
of undue influence causing the testator to make a will that did not express his testamentary desires).
257
See, e.g., Getty, 581 S.W.3d at 554.
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and often embarrassing for heirs and donees. Shari Redstone settled with the two
women who received millions of dollars from her father so as to avoid “public
attention on her father’s sex life.”
258
The family and beneficiaries of Huguette
Clark’s estate settled because, “Rolling the dice at a trial can mean losing every-
thing. Both sides had already spent a great deal on pretrial research and legal
fees.”
259
And even though Seward Johnson had amply provided for his children
and had executed multiple wills evidencing his consistent intent to benefit his
widow, Basia, all the parties eventually agreed to a settlement that awarded each
of his heirs at least $6 million tax free.
260
Undoubtedly, the laws objectifying mental incapacity provide a spring-
board for heirs with standing to compel litigation and its attendant costs. The out-
come of litigation, based on the niceties of the law, are tangential from the costs
associated with litigation. To illustrate, expenses associated with the attorneys rep-
resenting Huguette’s distant relatives—most of whom she had never met—were
significant. “Working on a contingency, as is standard, the [heirs’] attorney would
receive 30 percent of the first $50 million, and 30 percent of the next $50 mil-
lion.”
261
And many attorneys were involved. “At least sixty-two attorneys were
named in court papers in this case, with dozens of others working behind the
scenes . . . Court dates and settlement conferences were attended by ten to twelve
lawyers at a time, together running the meter in excess of $10,000 an hour.”
262
The attorneys for Seward Johnson’s heirs charged his estate $10 million,
and Basia would pay a total of $25 million in legal fees, but this amount included
fees paid to the heirs’ attorneys too.
263
And towards the end of Sumner Redstone’s
life, when he agreed to settle the elder abuse claim against the women who had
taken millions from him throughout his life, the attorney fees were minimal. But,
attorneys had been billing hours for decades as squabbles erupted over promises
made and broken.
264
Pierce O’Donnell, Sumner’s attorney, negotiated a settlement
between his client and Manuela Herzer, which gave her millions of dollars in cash
and real estate, but it was a windfall for his law firm too, as he earned a $13 million
contingency fee.
265
In addition to attorney fees, there is the lengthy litigation that ensues,
prompting settlement rather than endure a protracted trial to prove or disprove
alleged allegations. Towards the end of the brutal legal saga enfolding the estate
or Seward Johnson, Arnold Bauman, a senior attorney representing Basia,
258
STEWART & ABRAMS, supra note 158, at 333.
259
DEDMAN & NEWELL, supra note 84 at 345.
260
MARGOLICK, supra note 12 at 586.
261
DEDMAN & NEWELL, supra note 84 at 346.
262
Id.
263
MARGOLICK, supra note 12 at 587.
264
See, e.g., STEWART & ABRAMS, supra note 158 at 71, describing a few of the amendments Sumner
made to his trusts benefitting the two women most involved in his life. Also, litigation over Sumner’s re-
placement of Herzer as his health care proxy.
265
Id. at 159.
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Johnson’s widow, urged settlement on Basia, stating: “Mrs. Johnson, you’re fifty
years old . . . The next ten years should be the most crucial period of your life. Do
you want to spend them all fighting in court?”
266
Concluding that she did not want
to testify during the Johnson trial, Basia was keenly aware that the trial had lasted
seventeen weeks already, three years had passed since Seward Johnson’s death,
and hundreds of hours of court time were spent deciding motions and confer-
ences.
267
Settlement becomes attractive early in the process—you can go on with
your life—and especially so later, when attorneys sense winning or losing, possi-
ble loss of fees, and excursions into heretofore private lives ascends into embar-
rassment, threats, and social isolation.
Transfer of wealth occurs through valid wills, through inter-vivos trust
accounts, revocable and irrevocable, and finally through inter-vivos gits. Of
course, there is overlap among the three, but these serve as conduits to transfer,
and each has vulnerabilities that may prompt expensive and lengthy litigation.
1. Last Will and Testament
Traditionally, litigation most often involved the validity of the decedent’s
will, most often that it was a product of undue influence, duress, fraud, or that the
decedent lacked testamentary capacity at the time it was executed. Lack of testa-
mentary capacity, as has been explained, is difficult to establish. To illustrate, Ok-
lahoma, by statute, provides that just because a person is admitted to a mental
institution does not mean that this person automatically loses mental capacity.
268
Undue influence is a popular mode of contest, but its parameters are slip-
pery. First, the transferor must be susceptible to influence, easily established with
Seward Johnson, Huguette Clark, and Sumner Redstone. Second, the transferee
must have an opportunity to exert undue influence. Third, the transferee must have
actually benefitted from that influence.
269
The burden to establish these elements
is clear and convincing proof in some states, and preponderance of the evidence
in others.
270
But, the issue is further complicated when there is a confidential rela-
tionship between the transferor and the transferee, a relationship often character-
ized as one of trust, and if present a presumption of undue influence arises, which
must be rebutted by the transferee.
271
It is in the interest of any contestant to es-
tablish a confidential relationship, and thus, shift the burden of proof; but,
266
MARGOLICK, supra note 12, at 580.
267
Id. at 591.
268
See Blair, 381 P.3d at 720 (Ok. 2016) (citing 43 A O.S. § 1-105 (1986); Getty, 581 S.W.3d at 554 (“The
degree of mental capacity required to make a will is minimal . . . [it] is less that that necessary to make deed
or contract.”).
269
See, e.g., Hadda, 200 N.E.3d at 1285; see also Matter of Estate of Finstrom, 950 N.W.2d at 408.
270
See id. at 412 (requiring clear and convincing evidence). But see In re Estate of Clinger, 872 N.W.2d
37, 48 (Neb. 2015) (requiring only a preponderance of the evidence).
271
See, e.g., Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (requiring clear and convincing evi-
dence to rebut the presumption).
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confidentiality is not easily established.
272
Furthermore, to illustrate that courts are
haphazard in addressing the burden of proof, the Nebraska Supreme Court holds
that the burden of proof resides with the contestant throughout any contest.
273
Rebuttal of undue influence by a transferee is elusive, including within its
parameters the transferor’s mental and physical condition, who prepared the doc-
ument, any departure from a previously expressed intention, and overall whether
the influence was such as to “cause the testator to make a will which did not ex-
press his actual testamentary desires.”
274
As is evidenced throughout the facts in-
volving Seward Johnson, Huguette Clark, and Sumner Redstone, “[u]ndue influ-
ence is seldom practiced openly . . . rather, the product of persistent and subtle
suggestion imposed upon a weaker mind and calculated, by the exploitation of a
relationship of trust and confidence, to overwhelm the victim’s will to the point
where it becomes the willing tool to be manipulated for the benefit of another.”
275
The facts are slippery, the personal relationships opaque.
2. Inter-vivos Trusts
Modern contest increasingly focuses on inter-vivos trusts, either in their
creation or their revision.
276
It seems logical that inter-vivos trusts would stimulate
less litigation since the settlor of the trust is presumably alive and assumedly com-
petent, therefore able to testify in defense of the trust.
277
But complications may
ensue when, for example, some courts distinguish between testamentary and inter-
vivos transactions, such as upon whom is the burden of proof when there is an
allegation of undue influence.
278
In other courts, no distinction is made,
279
but dis-
tinctions may prove advantageous depending on your pursuits.
280
For an illustra-
tion of when a burden of proof distinction is made, in Willey v. Willey, the
272
See, e.g., Jarnigan v. Moyers, 568 S.W.3d 585, 593 (Tenn. Ct. App. 2018) (holding there was no con-
fidential relationship between the transferor and the transferee); Lief v. Hill, 58 N.Y.S.3d 455, 457 (N.Y.
App. Div. 2017) (holding there was insufficient proof of a confidential relationship).
273
See In re Estate of Clinger, 872 N.W.2d 37, 51 (Neb. 2015). For a review of undue influence and upon
whom the burden of proof rests, see Burkhalter v. Burkhalter, 841 N.W.2d 93, 104 (Iowa 2013).
274
Vaicunas v. Gaylord, 230 A.3d 826, 839 (Conn. App. Ct. 2020).
275
D’Onofrio v. Mother of God with Eternal Life, 79 N.Y.S.3d 902, 920 (N.Y. App. Div. 2018) (citing
Matter of Burke, 82 A.D.2d 260, 269 (1981)).
276
See, e.g., Davis v. Rizzo, 819 S.E.2d 574, 584 (N.C. Ct. App. 2018) (holding that trial court did not
abuse its discretion in determining that grandchild of settlor of trust failed to raise substantial issues as to
whether settlor was competent when revisions to the trust occurred). But see Matter of Estate of Osguthorpe,
491 P.3d 894, 911 (Utah 2021) (holding that a trust is void to the extent its creation was induced by fraud,
duress, or undue influence).
277
Davis, 819 S.E.2d at 581 (“arguing that Mrs. Davis was fully competent to answer for herself”).
278
See, e.g., Willey v. Willey, 385 P.3d 290, 297-298 (Wyo. 2016) (holding that burden of proof always
remains with petitioner in a testamentary transaction, not shifting when there exists a confidential relation-
ship between transferor and transferee as it does with an intervivos transaction).
279
See, e.g., Schwartz v. Tedrick, 61 N.E.3d 797, 801 (Ohio Ct. App. 2016) (referring to undue influence
under wills and then trusts without distinction).
280
See, e.g., Burkhalter v. Burkhalter, 841 N.W.2d 93, 100 (Iowa 2013) (describing how Iowa uses a
preponderance of the evidence standard to establish there was undue influence while other states use clear
and convincing evidence); see also Moore v. Moore, 429 P.3d 607 (Kan. 2018) (distinguishing between
undue influence in wills and undue influence in contracts).
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Wyoming Supreme Court distinguished between inter-vivos and testamentary un-
due influence analysis, holding that the shift in burden only occurs in an inter-
vivos arrangement, not a testamentary one, citing seven other courts holding a
similar position.
281
The judicial rationale is that “the grantee of an inter-vivos gift
is generally a party to the transaction, whereas a beneficiary of a will or [testamen-
tary] trust is not and may have no knowledge of the benefit of the will or trust until
many years later,” when the will is probated.
282
Most contests of inter-vivos trusts are disputed when the settlor dies, yet
by then they avoid scrutiny because, being a nonprobate transfer, these inter-vivos
trusts do not pass through probate court jurisdiction.
282
Undoubtedly, interested
persons may think they are entitled to property transferred by a transferor during
lifetime through a written or an oral trust, but often these claimants cannot prove
the existence of any valid trust and hence their claims are dismissed.
283
Disap-
pointment occurs because the decedents’ heirs were not told of the existence of an
inter-vivos trust and its validity is not established in court because the trust does
not pass through decedents’ probate estate. While challenge is not barred by a
statute of limitations, heirs may challenge the valid creation of the trust, but if
notified of its existence prior to decedent’s death, a state with an effective statute
may limit contest.
284
3. Gifts
While it may appear logical that gifts made during lifetime by a transferor
may escape challenge from disappointed heirs with standing, reality says other-
wise. To illustrate, in McCollor v. McCollor,
285
the court utilized the state’s Im-
provident Transfers of Title Act to hold that a presumption of undue influence
arises when a person classified as elderly, over age sixty,
286
and dependent, and in
a confidential relationship, makes an inter-vivos transfer of property—a gift—to
a person acting in a caretaking role for less than full consideration.
287
The pre-
sumption needs to be established only by a preponderance of the evidence,
288
and
then may be rebutted by showing that the donor had independent counsel at the
281
Willey, 385 P.3d at 290-298. (District of Columbia, Fourth Circuit, Washington, New Jersey, Iowa,
Kansas, and Alabama).
282
Id.
282
See Sacks v. Dissinger, 178 N.E.3d 388 (Mass. 2021) (discussing how intervivos trusts avoid probate
and thereby any judicial review by a probate court).
283
See, e.g., Levy v. Levy, 187 N.Y.S.3d 286, 289 (N.Y. App. Div. 2023) (dismissing petition of children
claiming to be beneficiaries to father’s inter-vivos oral trust).
284
See discussion at infra, IV. Options for the Giver.
285
McCollor v. McCollar, 87 A.3d 761 (Me. 2014).
286
See 33 M.R.S. §§ 1021-1025 (1988).
287
McCollor, 87 A.3d at 764-65; 33 M.R.S.A. § 1022(2).
288
McCollor, 87 A.3d at 765. It is arguable that independent counsel may be satisfied with the appointment
of a trust protector; if the transferee fails to rebut the presumption, then the transferor may void the transfer.
See discussion infra at IV. B. 3. Trust Protector.
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time of the gift. And any challenge to the gift must be made within the applicable
statute of limitations.
289
In the McCollor facts, the son of an elderly couple told his parents that
their house would be taken from them to pay for medical expenses, but this could
be avoided if the parents transferred title to their home to him.
290
Subsequently,
the parents did execute the title change, but later the mother had second thoughts
and challenged the gift under the Act, voiding the transfer to the son.
291
The Maine
Supreme Court affirmed the lower court’s determination that the house and the
personal property contained therein were obtained through the presumption of un-
due influence created under the Act, permitting the mother to refute the transfer
and recover the real and personal property.
292
The child/transferee failed to rebut
by providing “substantial evidence either from the circumstances, or from a totally
disinterested witness, [independent counsel], from which the court can conclude
that the transfer instrument represented the true, untampered, genuine interest of
the grantor.”
293
In the absence of a statute, such as the Improvident Transfer of Title Act,
any gift made during a transferor’s lifetime may be challenged as a product of
undue influence. And similar to the process involving wills, a presumption of un-
due influence may arise, together with a shifting burden of proof, requiring that it
be rebutted by a preponderance or clear and convincing evidence,
294
but “[t]he
mere fact that a parent deeds property to a child, or that some children are favored
to the exclusion of others, does not raise a presumption of undue influence.”
295
Similar to outright gifts, are cases where a defendant allegedly unduly
influenced another individual to modify beneficiary designation contracts, result-
ing in a benefit for the defendant. To illustrate, in Jarnigan v. Moyers, a Tennessee
Appellate Court relied upon the jurisprudence applicable to will contests and held
that if there is a confidential relationship between the defendant and decedent, the
defendant must rebut the presumption of undue influence with clear and convinc-
ing evidence.
296
Other courts, in addition to the cause of action of undue influence
have allowed other petitions, such as unjust enrichment and conversion. “The basis
289
See, e.g., Bryant v. Dent, 270 So.3d 976 (Miss. Ct. App. 2018) (holding that a ten-year statute was
applicable rather than three and permitted a claim); see also Davis v. Rizzo, 819 S.E.2d 574, 579 (N.C. Ct.
App. 2018) (holding that a party has thirty days from the entry of a final judgment to appeal); D’Onofrio v.
Mother of God with Eternal Life, 79 N.Y.S.3d 902, 915 (N.Y. App. Div. 2018) (holding that a cause of
action for fraud must be brought within six years from the date the cause of action accrued or two years
from the time the plaintiff discovered the fraud, or could with reasonable diligence have discovered it).
290
McCollor, 87 A.3d at 763.
291
Id. at 764.
292
Id. at 767.
293
In re Estate of Walker, 331 So.3d 553, 560 (Miss. Ct. App. 2021).
294
See, e.g., Matter of Estate of Blair, 17 N.E.3d 84, 90 (Ind. Ct. App. 2021) (holding that transferee did
not rebut the presumption with clear and convincing evidence and that (1) she acted in good faith, (2) she
did not exploit position of trust she had with transferor, and (3) the transaction was fair and reasonable).
295
In re Matter of Estate of Finstrom, 950 N.W.2d 401, 409 (N.D. 2020) (citing Johnson v. Johnson, 85
N.W.2d 211, 225 (N.D. 1957)).
296
Jarnigan v. Moyers, 568 S.W.3d 585, 591 (Tenn. Ct. App. 2018).
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of a claim for unjust enrichment is that the defendant has obtained a benefit which
in ‘equity and good conscience’ should be paid to the plaintiff.”
297
Logically too,
there also could be claims of fraud,
298
so that a plaintiff, or a plaintiff’s estate, may
assert that defendant made statements with the intent of inducing plaintiff to trans-
fer real property, sums of money and personal property to defendants.
299
Duress may also be a cause of action, and it comes in many forms.
300
For
example, recall that Sydney Holland and Manuela Herzer were both invited by
Sumner Redstone to live with him in his Beverly Park mansion, even though he
had purchased each a home nearby. While there, during 2014, they approached
Sumner who was ninety-one years-old and told him that “they were the only ones
who loved and would protect him. If he loved them back, he would cash out. If he
did not, he would die alone.”
301
Afraid to die alone, Sumner quickly passed by
wire transfer $45 million to Holland and another $45 million to Herzer, cash gifts
that would never be reclaimed by him or his estate.
302
So too, Huguette Clark was
anxious that Beth Israel Hospital would discharge her from her hospital room of
twenty years, where “she was able to live out her days in security, relatively good
health and comfort, and with the pleasure of human company.”
303
The hospital
made repeated demands upon her,
304
but unlike Sumner she resisted pressure from
the hospital, declining many appeals for donations and eventually leaving it only
$1 million in her will.
305
Huguette Clark’s resilience is unusual. As people get older, they increas-
ingly find themselves without family or friends to help with socialization, health,
food, and the myriad of activities of daily living.
306
Commentators refer to these
persons as “elder orphans” and their numbers grow expeditiously.
307
As known
instances of financial exploitation of these older persons increases, states are en-
acting legislation to make it a crime for persons in a confidential relationship with
elders to threaten them with abandonment, classifying this conduct as a “breach
of a fiduciary relationship, deception, extortion, intimidation, force or threat of
297
Salitsky v. D’Attanasio, 186 N.Y.S.3d 173, 175 (N.Y. App. Div. 2023).
298
KNK Enters., Inc. v. Harriman Enters., Inc., 824 N.Y.S.2d 307 (N.Y. App. Div. 2006) (holding that
fraud requires proof that the plaintiff actually relied on the purported fraudulent statements and that the
reliance was reasonable or justifiable).
299
See, e.g., D’Onofrio v. Mother of God with Eternal Life, 79 N.Y.S.3d 902, 905 (N.Y. App. Div. 2018).
300
Austin Instrument, Inc. v. Loral Corp., 272 N.E.2d 533 (N.Y. 971) (holding that duress occurs when
plaintiff is forced to agree to something beyond the exercise of his or her free will).
301
STEWART & ABRAMS, supra note 158 at 73.
302
Id. at 74.
303
DEDMAN & NEWELL, supra note 84 at 286.
304
See, for example, id. at 283, writing that Dr. Newman proposed to Huguete that she transfer $106
million to the hospital.
305
Id. at 335.
306
See Cynthia F. Tolan & Shannon M. James, Help Your Senior Orphan Client Ride Out the Solo Tsu-
nami, 161 TRS. & ESTS. 42, 42 (2022) (citing ADMIN. ON AGING, U.S. DEP’T OF HEALTH & HUM. SERVS.,
2020 PROFILE OF OLDER AMERICANS 5 (May 2021), https://acl.gov/sites/defaujnmgtlt/files/Pro-
file%20of%20OA/2020ProfileOlderAmericans_RevisedFinal.pdf).
307
Id.
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force, isolation, or any unlawful means.”
308
Because elder financial abuse is so
prominent a topic, it deserves a separate discussion.
C. Elder Financial Abuse
Abusive conduct towards those classified as elders takes many forms:
309
discrimination in employment,
310
physical abuse of an elder by a caretaker,
311
in-
stitutional abuse,
312
and pertinently, elder financial abuse. Instances of the last of
these, elder financial abuse, are increasingly reported and almost always to the
lasting detriment of many seniors.
313
“In the United States each year, up to 5 mil-
lion elderly individuals are abused to the tune of $36.5 billion.”
314
In the state of
Wisconsin, the financial exploitation of the elderly is the largest category of elder
abuse after self-neglect,
315
which serves as a catalyst for an increasing number of
states to enact criminal statutes to protect seniors from financial exploitation. The
most recent “50 State Statutory Survey” published by Thomson Reuters reports
that, “[a]ll of the states have enacted laws addressing physical and financial abuse
of the elderly. A number of statutes are drafted specifically for protection of the
elderly, while others are written more broadly” but include protection of vulnera-
ble adults.
316
Ostensibly, all three individuals illustrated in this Article allegedly were
financially abused by persons with whom each was in a confidential relationship.
Seward Johnson, both during his lifetime and in his will, distributed significant
assets to Basia’s relatives living overseas and to Basia’s many charities, all at the
behest of Basia.
317
Huguette Clark, while she resided in the hospital, transferred
massive gifts and cash to Hadassah Peri, her daytime nurse, and upon whom she
depended for physical and emotional care.
318
And Sumner Redstone, in addition
308
See, e.g., NEB. REV. STAT. § 28-358 (2016).
309
See RAYMOND C. O’BRIEN, THE FUNDAMENTALS OF ELDER LAW, 741-98, 830-54 (2022).
310
See, e.g., AGE DISCRIMINATION IN EMPLOYMENT ACT, 29 U.S.C. § 623 (1967).
311
See, e.g., CAL. WEL. & INST. CODE § 15656(a) (“Any person who knows or reasonably should know
that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts
unjustifiable physical pain or mental suffering.”)
312
See, e.g., NEV. REV. STAT. ANN. tit. 15, §§ 200.5091-50995.
313
See, e.g., Katherine Skiba, Older Americans Hit Hard by Financial Fraud, AARP (Feb. 28, 2019),
www.aarp.org/money/scams-fraud/info-2019/cfpb-report-financial-elder-abuse.html.
314
Joshua S. Miller & Michael Sneeringer, Fiduciary Law Trends, 160 TR. & EST. 36, 36 (2021) (citing
NAT’L COUNCIL ON AGING, Get the Facts on Elder Abuse (Feb. 23, 2021), www.ncoa.org/article/get-the-
facts-on-elder-abuse).
315
F. Philip Manns, Jr., Donative Hot-Powers Cases Under the Uniform Power of Attorney Act, 44 U.
ARK. LITTLE ROCK L. REV. 339, 342 (2022).
316
See THOMSON REUTERS, 50 State Statutory Surveys: Family Law: Adult Care, Physical and Finan-
cial Abuse of the Elderly, 0800 Surveys 1 (May 2022), https://www.westlaw.com/Docu-
ment/I904cf5515afa11de9b8c850332338889/View/FullText.html?transitionType=Default&context-
Data=(sc.Default)&VR=3.0&RS=cblt1.0.
317
See, e.g., MARGOLICK, supra note 12, at 156 (stating that during Basia’s lifetime her relatives could
receive up to $20 million if they no longer lived in a Marxist state.).
318
See DEDMAN & NEWELL, supra note 84, at 261-70.
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134 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
to expensive homes and credit card purchases, gave to each of the two women,
upon whom he relied for social support, $45 million tax free.
319
Gifts and other
taxes on these $90 million gifts would come to an additional $90 million, forcing
Sumner to borrow $100 million just to pay the taxes.
320
Yet of the three, perhaps
only Sumner Redstone considered himself duped, or financially abused.
321
Seward
and Huguette had long exhibited patterns of benefitting those they truly cared
about, and who appeared to reciprocate care for their benefactors. Throughout,
human emotions underlie all these gifts. Undoubtedly many instances of actual
financial exploitation go unreported because “victims, who are usually elderly and
infirm, may be unaware of what is happening or too embarrassed or frightened to
assert their rights.”
322
But there are others who just want to enjoy the luxury of
giving what they earned. Human motives are broad.
The elusiveness of elder financial abuse is a hinderance to its prevention.
One source defines it as:
[t]he illegal, unauthorized, or improper use of an older individ-
ual’s resources by a caregiver or other person in a trusting rela-
tionship, for the benefit of someone other than the older individ-
ual. This includes, but is not limited to, depriving an older
individual of rightful access to, information about, or use of per-
sonal benefits, resources, belongings, or assets.
323
The federal Elder Justice Act of 2009 defines exploitation as:
[t]he fraudulent or otherwise illegal, unauthorized, or improper
act or process of an individual, including a caregiver or fiduciary,
that uses the resources of an elder for monetary or personal ben-
efit, profit, or gain, or that results in depriving an elder of rightful
access to, or use of, benefits, resources, belongings, or assets.
324
And additional federal legislation fosters reporting of suspected senior fi-
nancial abuse through the Older Americans Act of 2006,
325
and the Senior Safe
Act, the latter of which grants immunity to any institutional employee who has
received proper training and reports suspect senior elder abuse.
326
319
STEWART & ABRAMS, supra note 158, at 10, 51, 74.
320
Id. at 74.
321
Id. at 185 (“Sumner was adamant: he still wanted his money back from Holland and Herzer. The two
women had lied to and cheated him, Sumner repeated incessantly.”); Id. at 157. (“[Sumner] remained intent
on getting his millions back from Holland and Herzer, asking [his attorney] about it repeatedly and demand-
ing he take legal action against the women.”).
322
Praefke v. Am. Eter. Life Ins., et al., 655 N.W.2d 456, 461 (Wis. Ct. App. 2002).
323
Jeffrey Hall, et al., Elder Abuse Surveillance: Uniform Definitions and Recommended Core Data Ele-
ments, CTRS. FOR DISEASE CONTROL & PREVENTION 35 (2016), https://www.cdc.gov/violencepreven-
tion/pdf/ea_book_revised_2016.pdf.
324
Pub. L. No. 111-148, 124 Stat. 782 (2010) (codified as 42 U.S.C. § 1397j et seq.).
325
42 U.S.C. § 3002(3)(A).
326
12 U.S. C. § 3423(b)(2)(A)
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In what has become the template for defining senior financial exploita-
tion, proposed by the North American Securities Administrator Association, the
Model Act to Protect Vulnerable Adults from Financial Exploitation (“NASAA
Model Act”) is more specific in its approach. The Act includes as exploitation
outright wrongful or unauthorized taking, withholding, appropriation, or use of
money, assets or property of seniors or persons under state protection.
327
Specifi-
cally, it includes obtaining control over money, assets, or property by any act or
omission.
328
More than half of the states have adopted the NASAA Model Act,
which would include today those responsible for managing the wealth of Johnson,
and Clark, and Redstone.
329
In states adopting the Act, financial advisors are under
mandate to report any reasonable suspicions of financial exploitation to the state
securities administrator and its adult protective services agency.
330
Federal legislation illustrated in the Senior Safe Act of 2018, enacted as
part of the Economic Growth, Regulatory Relief, and Consumer Protection Act,
provides immunity for wealth managers who report suspected financial exploita-
tion.
331
And the Financial Industry Regulatory Authority (FINRA) permits brokers
to place a temporary hold on any disbursements of funds or securities if there is a
reasonable suspicion of financial abuse.
332
Similarly, in 2018, the Securities and
Exchange Commission (“SEC”) approved Rule 2165, which permits wealth man-
agers to place temporary holds on disbursements of funds or securities whenever
there is a reasonable suspicion that the client is a victim of financial exploitation.
333
And finally, there is an expansive list of persons contained in the Uniform Power
of Attorney Act, given standing to pursue judicial relief to thwart financial abuse,
including the principal’s caregiver or another person that demonstrates sufficient
interest in the principal’s welfare.”
334
The single claim of elder financial abuse among Johnson, Clark and Red-
stone was when Sumner Redstone’s daughter, Shari, filed suit against the two
women who had lived with her father and received exorbitant gifts of property and
cash from him.
335
But Shari and Sumner himself dropped the exploitation claim
when her father reached a settlement with the two women towards the end of his
life.
336
Huguette Clark’s accountant and attorney attempted to restrain her gift-
giving, but solely to avoid running out of money and to escape massive taxes
due.
337
And Seward Johnson’s children, having standing, were unaware at best,
327
12 U.S.C. § 3423(b)(2)(A)(iv).
328
See JOSEPH C. LONG, MICHAEL L. KAUFMAN & JOHN M. WUNDERLICH, 12A BLUE SKY L. § 8:165
(2022).
329
Id. at § 8:162.
330
Id.; see, e.g., TEX. FIN. CODE ANN. §§ 281.002(a)-(b) (2019).
331
See ECONOMIC GROWTH, REGULATORY RELIEF & CONSUMER PROTECTION ACT, Pub. L. No. 115-174,
113 Stat. 1338 (2018).
332
See FIN. INDUS. REG. AUTH. R. 2165(b) (“FINRA”).
333
See SEC Release No. 3479964; 82 Fed. Reg. 10059, 10060 (Feb. 9, 2017).
334
See UNIF. POWER OF ATT’Y ACT § 116(a)(8)(2006) (italics added).
335
STEWART & ABRAMS, supra note 158, at 333.
336
Id.
337
DEDMAN & NEWELL, supra note 84, at 333.
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136 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
but most likely inattentive to the gifts their father made to Basia and to her family
and charities.
338
There is no record of wealth managers to any of three wealthy
persons making official reports of suspicion of elder financial abuse.
While legislation may grant standing to wealth managers, who has stand-
ing to object to wealth passing under a will or under an inter-vivos trust? Concern
over elder abuse prompts legislatures and courts to interpret standing broadly.
339
However, standing to contest a will or to challenge an inter-vivos trust is far more
established, conferring standing on those with an interest adversely affected. As
stated in Schwan v. Permann, “interested person[s] have legal standing to contest
the provisions of a will or trust.”
340
And yet, similar to modern expansive standing
to contest elder abuse, the parameters of those with standing are interpreted
broadly. For example:
[State Probate Code] does not purport to provide an exclusive list
of recognizable interests by specifying that an interested person
includes an heir, devisee, child, spouse, creditor, beneficiary, any
other person having a property right in or claim against an estate,
any person having priority for appointment as a personal repre-
sentative, and a fiduciary representing an interested person; in-
stead, it permits a judge to designate as an interested person an-
yone who has an interest in an estate that may be affected by a
probate proceeding.
341
There is a Greek proverb that advises all to fear old age because it does
not come alone.
342
If so, then fear should be greater today because of the longer
time most have to be old, which is accompanied by greater wealth, choices, and
yes, responsibilities. All three of the wealthy individuals discussed herein enjoyed
long lives, significant wealth, and an array of choices. Seemingly, each was satis-
fied in meeting an array of responsibilities to family members, charities, and
wealth managers. But, each derived pleasure in gifting significant assets to others
not appreciated by the giver’s consanguineous family, those the law deems inter-
ested in the affairs of each other. The plans of the givers were mostly thwarted at
a cost to the giver.
Gifting to those we like is ancient in practice. The Chinese philosopher
Lao-tsu is correct: “[t]he more [the sage] gives to others, the more he possesses of
338
Other than the donor and an heir of the testator, persons with standing include a representative of de-
cedent’s estate, a person named in the will, an intestate heir adversely affected, or an “interested person”
other than a creditor. See, e.g., CAL. WELF. & INST. CODE § 15657.3(d)(1) (2008); Keading v. Keading, 275
Cal. Rptr.3d 338, 334 (Cal. Ct. App. 2021) (holding that a sister and heir to the deceased parent had standing
to allege elder financial abuse against her brother).
339
See, e.g., Estate of Lowrie, 12 Cal.Rptr.3d 828, 833 (Cal. Ct. App. 2004) (holding that “legislative
intent suggests the Legislature intended a broad definition of standing in the context of elder abuse cases”).
340
Schwan v. Permann, 239 Cal. Rptr. 3d 427, 443 (Cal. Ct. App. 2018).
341
CALIFORNIA JUDGES BENCHBOOK: CIVIL PROCEEDINGS, BEFORE TRIAL, B. § 10.28 (2022 ed.).
342
Anonymous, Greek Proverb, “Fear old age for it does not come alone”, https://www.bartleby.com/lit-
hub/dictionary-of-quotations/authors/greek-proverb/ (last visited Feb. 15, 2024).
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his own.”
343
But the thicket of age fuels challenges of capacity, delusion, and the
undue influence of others. These snares offer opportunities for elder financial
abuse and concomitant issues of fraud, coercion, conversion, forgery, and tortious
interference with someone else’s expectancy. And these legal challenges generate
a more subtle force, regardless of the merit of any challenge, any defense, any
meticulously planned strategy; the emotional toll and the financial cost of legal
representation are exorbitant. What may a donor do to freely give, devise, and
bequeath? Consider these following options for the giver.
IV. OPTIONS FOR THE GIVER
A. Statutory Limitations on Trust Contest
When laypersons consider challenges to a transferor’s gifts, devises, and
bequests, the image is one of contesting a Last Will and Testament on grounds
involving deficiencies in formalities or intentionalities. But for professional estate
planners the modern reality is that most wealth passes not by decedent’s will, but
rather by way of nonprobate transfers. Among these transfers are joint accounts,
payable upon death contracts, multiple party accounts, and pertinent to this Arti-
cle, inter-vivos trusts.
344
The last of these, inter-vivos trusts, are indispensable
tools used to manage money, avoid probate costs, protect privacy, and restrain the
damage caused by potential incapacity of the settlor.
345
Because trusts are ubiquitous and preserve the privacy of the settlor, they
seem particularly useful when seeking to transfer assets to another person or insti-
tution not always acceptable to consanguineous family members, those interested
parties likely to contest any transfer. The wary—yet knowledgeable—settlor could
create a revocable or irrevocable trust, which would not be subject to probate and
any challenge from interested parties based on causes of action we have discussed,
such as lack of capacity or undue influence. Family members are unaware of their
exclusion (disinheritance) from trust benefits unless they are qualified beneficiar-
ies.
346
If the excluded family member discovers he or she is excluded from the
benefits conferred by an inter-vivos trust they have the opportunity to confront a
343
LAO-TSU, THE WAY OF LAO-TSU 81 (translated by Wing-tsit Chan).
344
See John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate Code:
Reformation, Harmless Error, and Nonprobate Transfers, 38 ACTEC L. J. 10-18 (2012); see also Brent W.
Nelson, et al., Revocable Trusts for Changing Times, 35 PROB. & PROP. 40 (2021).
345
Al W. King, Flexible Trusts to Deal with Future Uncertainties, 161 TR. & EST. 16 (2022); but see
Susan N. Gray, Transfer-on-Death Deeds: The Nonprobate Revolution Continues, 41 REAL PROP. PROB. &
TR. J. 529, 540 (2006) (“The cost for having a lawyer prepare a deed is modest, but the legal fees associated
with creating a revocable trust can be significant for a person with limited assets.”).
346
See, e.g., Sacks v. Dissinger, 178 N.E.3d 388, 397 (Mass. 2021) (“Not only are trusts not probated, but
also would-be beneficiaries are far less likely to learn of their exclusion from a trust. While a decedent’s
heirs-at-law and devisees are required to receive notice of the probate of a will, . . . only qualified benefi-
ciaries—who represent a subset of beneficiaries and certainly do not include family members who have
been excluded—may be entitled to information about a trust.”)
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138 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
settlor who is alive and presumptively able to defend his or her actions.
347
But the
time for confrontation is limited, a majority of states limit by statute the time for
contest of an inter-vivos, thereby creating a statute of limitations seemingly offer-
ing an opportunity to bar any further contest once the settlor has died.
348
This is a
significant opportunity to give, devise, or bequeath assets to others not deemed
worthy by consanguineous parties. These state statutes barring contest are based
on Section 604 of the Uniform Trust Code (UTC), first enacted in 2000 to codify
various provisions of the common law of trusts.
349
Seemingly they offer an oppor-
tunity for a giver to deflect any future contest.
1. UTC Section 604
Recognizing the proliferation of intervivos trusts, Section 604 of the UTC
seeks to limit any action to contest the validity of the trust and promote the timely
distribution of trust property.
350
To these ends, the Section provides that a person
may commence a judicial proceeding to contest the validity of a trust that was
revocable at the time of the settlor’s death within the earlier of (1) three years after
the settlor’s death, or (2) 120 days after the trustee sent the person a copy of the
trust instrument and a notice informing the person of the trust’s existence, of the
trustee’s name and address, and of the time allowed for commencing a proceed-
ing.
351
The trustee of the revocable trust may distribute the trust property upon the
death of the settlor, and is liable only if the trustee knows of an existing or potential
contest commenced within sixty days after the contestant sent notice to the trus-
tee.
352
And in any case if the trust is determined to be invalid, any beneficiary is
required to return any distribution received.
353
There are salient features of the Section that need to be discussed. First,
the Section applies only to proceedings that “contest the validity of a trust,” which
raises the question of whether an action is barred if it challenges not only the for-
malities of creation of a trust, but also the intentionalities of the settlor.
354
If inten-
tionalities are not included in the purview of the statute, then contests involving
lack of capacity and undue influence under the thicket of mental incapacity would
come under a different statute of limitations, presumptively longer than the 120
days of Section 604, thereby offering little solace to a settlor seeking to avoid
contest from heirs. Second, the Section applies to “a trust that was revocable at the
347
See, e.g., MASS. GEN. LAWS ch. 203E, § 604(a)(1) (2012) (limiting contest of a revocable trust to at
most one year after the settlor’s death).
348
Id.
349
Currently, 36 states have enacted the UTC, which was proposed by the National Conference of Com-
missioners on Uniform State Laws, to include special rules pertaining to revocable trusts in Article 6. UNIF.
TR. CODE prefatory note.
350
UNIF. TR. CODE § 604(a).
351
Id.
352
Id. at § 604(b). Knowledge is defined at UNIF. TR. CODE § 104.
353
Id. at § 604(c).
354
Id. at § 604(a).
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settlor’s death.”
355
As a result of the UTC, all trusts are revocable unless the settlor
expressly states otherwise.
356
But there are states that, when enacting a statute
based on Section 604, apply it to irrevocable trusts too.
357
Third, states enact dif-
ferent time frames than the three years or 120 days of the UTC.
358
For example,
South Dakota provides a much shorter time frame, one year after the settlor’s
death, or sixty days after the trustee sent to the person who a contestant a copy of
the trust and pertinent information.
359
And fourth, does contesting the validity of
a trust encompass tort claims that may be brought by a potential heir against the
person who through fraud or any other subterfuge managed to deprive the peti-
tioner of his or her inheritance?
The following decisions offer insight into the parameters of Section 604
and discusses the value in limiting the time for challenge by a disappointed heir.
2. South Dakota
In 2017, the Supreme Court of South Dakota addressed whether that
state’s statute of limitations to challenging the validity of an inter-vivos trust also
applied to claims challenging the settlor’s mental capacity and undue influence.
360
The South Dakota statute, similar to Section 604,
361
limited challenges involving
“whether a revocable trust or any amendment thereto, or an irrevocable trust was
validly created.”
362
Similar to other cases, the facts involved a son who was disin-
herited by his mother, the settlor, when the mother amended her revocable trust
and excluded the son.
363
After the mother’s death the son was informed of the
exclusion when he was sent a copy of the trust and told that he had sixty days to
commence any judicial proceeding regarding the Trust.
364
While the son did send
an email to the county clerk and the trust’s attorney stating that he objected, he did
not specify why and he did not request any judicial relief; the son was aware that
no court file was opened after he sent the email.
365
611 days after receiving notice of his exclusion from his mother’s trust,
the son then filed suit to contest his mother’s amendments excluding him, alleging
that his mother lacked capacity and that she was unduly influenced by his sister,
who was now the sole beneficiary and trustee of the Trust.
366
In response to the
355
See, e.g., S.D. CODIFIED LAWS § 15-2-13 (2023) (providing for a six-year statute of limitations); UNIF.
TR. CODE § 604(a).
356
Id. at § 602(a).
357
See, e.g., S.D. CODIFIED LAWS § 55-4-57(a) (2023) (“whether a revocable trust or any amendment
thereto, or an irrevocable trust was validly created”).
358
Id. at § 55-4-57(a)(1) & (2).
359
Id.
360
Matter of Elizabeth A. Briggs Revocable Living Trust, 898 N.W.2d 465 (S.D. 2017).
361
Id. at 469.
362
Id. at 467 (citing S.D. CODIFIED LAWS § 55-4-57(a) (2023)).
363
Id. at 465.
364
Id. at 468.
365
Matter of Briggs Revocable Living Trust, 898 N.W.2d at 468.
366
Id. at 468. The son also claimed his sister breached her fiduciary duty and he requested an accounting.
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140 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
son’s claim the sister argued that his petition was time-barred by the state statute
requiring that claims be brought within sixty days and he has exceeded that time;
the circuit court agreed, and dismissed the son’s petition.
367
On appeal, the son
contended that he was not barred by the statute limiting challenges to the validity
of any trust to sixty days, but rather his claim is governed by another state statute,
South Dakota Codified Laws § 15-2-13, which provides for a general six-year
statute of limitations.
368
The state’s highest court found that this is the first time it considered the
statute, which limited contest of the validity of trusts to sixty days pertinent to the
circumstances of this case. But the court then rejected the argument put forth by
the son, that the statute addresses only the formalities associated with the validity
of the trust, such as signature and the like, but the statute does not address inten-
tionalities, particularly settlor capacity and undue influence, hence the six-year
statute should apply.
369
In rejecting this bifurcation attempt, the state supreme
court specifically held that, “Because lack of capacity and undue influence negate
the valid creation of trusts, [the new and shorter period] applies to such claims”
not the longer six-year statute.
370
The holding in the Briggs decision provides a significant benefit to the
settlor seeking to preempt challenges based on mentality issues such as lack of
capacity and undue influence. Because the court rejected bifurcation of intention-
alities and formalities, both may be preempted by meeting the requirements of the
statute, notifying any person with a probable claim—an interested petitioner—
with a copy of the trust instrument, knowledge of the trust’s existence, the trustee’s
name and address, and the time allowed for commencing a proceeding.
371
The
aware settlor, at least in South Dakota, will not eliminate contest, but at least will
be available, himself or herself, to testify to mental capacity issues. Subsequent
state court decisions affirm the holding in Briggs,
372
and the United States District
Court for the District of South Dakota became involved in the Briggs decision
when the son, under diversity jurisdiction, brought an action against his sister in
her individual capacity for tortious interference with inheritance or expectancy of
inheritance, breach of fiduciary duty, and negligence.
373
The federal court, taking
judicial notice of the Briggs holding, addressed whether the son could pursue a
367
Id.
368
Id.
369
Id. at 469.
370
Matter of Briggs Revocable Living Trust, 898 N.W.2d at 469. The state court notes that the Uniform
Trust Code “uses claims of undue influence and lack of capacity as specific examples of claims that are
subject to Section 604(a)’s time limits.” Id., n. 7.
371
Id. at 469.
372
See, e.g., Matter of Russell I. Carver Revocable Trust, 944 N.W.2d 808, 817 (SD 2020) (holding that
“trust challenge was timely because they filed their petition within one-year timeframe of Russell’s death.”);
In re Wintersteen, 907 N.W.2d 785, 795 (SD 2017) (“because she did not commence a judicial proceeding
contesting the validity of the third amendment within the one-year period set out by the statute, her claim
was time-barred.”).
373
Briggs v. Briggs, No. 4:17-CV-04167-KES, 2018 WL 3148386 (D.S.D. 2018).
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tort claim of tortious interference with his expectancy against his sister.
374
But
South Dakota, while not rejecting the tort, has not adopted it either. Therefore, the
federal court held that “certification [of the issue] to the Supreme Court of South
Dakota is proper.”
375
In 2019, the Supreme Court of South Dakota responded to the federal
request for certification.
376
The court held that: “[h]aving considered the decisions
from other jurisdictions and other policy considerations under existing law in this
State, we are not persuaded to adopt a cause of action for intentional interference
with inheritance and expand tort liability to the already existing panoply of reme-
dies available to estate litigants in South Dakota.”
377
As a result of this 2019 cer-
tification and the 2017 decision holding that claims of capacity and undue influ-
ence were subject to the state’s shorter statute of limitations, South Dakota
significantly lessened the opportunity for contest from a disgruntled heir, thereby
enhancing the settlor’s freedom to give, devise, and bequeath.
378
But this is not the
case in every other state, as the following decision from Massachusetts illustrates.
3. Massachusetts
The Supreme Court of Massachusetts addressed the parameters of its own
version of Uniform Trust Code § 604 statute of limitations limiting contests af-
fecting the validity of a trust in Sacks v. Dissinger.
379
The facts involved grand-
children who were excluded from their grandfather’s trust and brought suit against
their aunts and their grandmother’s estate more than two years after their grandfa-
ther’s death.
380
The grandchildren alleged that their aunt and grandmother unduly
influenced their grandfather thereby resulting in the perpetrator’s unjust enrich-
ment.
381
In response, the defendants moved to dismiss the claims as being barred
by the statute of limitations, which required contests to be brought within one year
of the settlor’s death.
382
The lower court agreed with the Defendants and dismissed
the case, but the Plaintiffs appealed, arguing that the shorter statute applied exclu-
sively to the validity of the Trust, and therefore was not applicable to claims of
intentional interference and unjust enrichment.
383
Instead, they argued that their
claim is subject to the state’s longer statute of limitations, which was three
years.
384
374
Id.
375
Id.
376
See In the Matter of the Certification of a Question of Law from the United States District Court,
District of South Dakota, Southern Division, 931 N.W.2d 510, 518 (S.D. 2019).
377
Id.
378
Id.; In re Wintersteen, 907 N.W.2d at 795.
379
Sacks v. Dissinger, 178 N.E.3d 388 (Mass. 2021).
380
Id. at 391.
381
Id.
382
Id.; see MASS. GEN. LAWS ch. 203E, § 604(a)(1) (2012).
383
Sacks, 178 N.E.3d at 391.
384
Id. at 397.
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142 QUINNIPIAC PROBATE LAW JOURNAL Vol. 37
The Massachusetts Supreme Judicial Court heard the appeal. and unlike
the court in South Dakota, held that claims of intentional interference and unjust
enrichment are “substantively different from the trust contests governed by
[shorter statute of limitations] and therefore are not time barred.”
385
The Massa-
chusetts Court focused on the “substance of a claim” and found that there are con-
tests that “determine the validity of a legal instrument, and other causes of action,
which do not.”
386
Borrowing from state law on contest of wills, the Court found
that there are contests involving the legality of a legal instrument, but there are
other actions that “are assessed for their effect on a person (e.g. harm).”
387
Here,
the Court holds that an action for tortious interference with an expectancy is not a
trust contest within the meaning established by the state’s shorter statute.
388
Simi-
larly, a claim for unjust enrichment “goes to the effects of tortious conduct on
people and not to the validity of a legal instrument,” which is also not a trust con-
test within the meaning of the state’s statute.
389
In essence the Court’s distinction
derives from whether the conduct being assessed is on the trust or on a person.
390
Dissimilar to South Dakota, Massachusetts has adopted the tort of inten-
tional interference with the expectancy of a gift, requiring “a plaintiff to show
defendant intentionally interfered through unlawful means with the plaintiff’s le-
gally protected interest by acting on the would-be donor continuously ‘until the
time the expectancy would have been realized.’”
391
And interestingly, the Massa-
chusetts court held that a charge of undue influence may underlie a claim for tor-
tious interference with an expectancy, any litigation of which would propel a set-
tlor back into the thicket of mental capacity.
392
The only limitation is the Court’s
cautionary note that if a claim of undue influence has already been resolved in any
probate proceeding, the plaintiff does not get a “second bite at the apple” through
a claim of tortious interference with an expectancy.
393
But as the Court notes, inter-
vivos trusts do not pass through probate and therefore a claim of undue influence
remains viable.
394
The Massachusetts approach is clearly distinct from South Dakota. The
former distinguishes between “tortious conduct on people” and any action affect-
ing the “validity of a legal instrument.”
395
As a result, “[b]ecause the plaintiffs’
385
Id. at 391.
386
Sacks, 178 N.E.3d at 393-94.
387
Id.
388
Id. at 395. The court finds support in comments made to the Uniform Trust Code, which explicitly
carves out intentional interference with expectancy claims from the statute’s purview. Id. at 394-95.
389
Id. at 399. “Unjust enrichment is defined as retention of money or property of another against the
fundamental principles of justice or equity and good conscience.” Id. at 397 (citing Santagate v. Tower, 833
N.E.2d 171 (Mass. 2005)).
390
Id. at 396.
391
Sacks, 178 N.E.3d at 395 (citing Labonte v. Giordano, 687 N.E.2d 1253, 1255 ((Mass. App. Ct. 1997)).
392
Id. The tort includes duress, fraud, or undue influence. See id. at 395-96.
393
Id. at 396.
394
Id. at 397 (“Indeed, revocable trusts have become such popular will substitutes precisely because they
typically remain out of probate, providing greater administrative ease and privacy.”).
395
Id. at 399.
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claims of intentional interference with an expectancy and unjust enrichment do
not constitute trust contests, they are not governed by [the shorter statute].”
396
Such a ruling in Massachusetts, integrating as it does possibilities for contests
based on fraud, duress, and undue influence, severely limits the desired freedom
sought by the settlor hoping for privacy, minimal litigation costs, and achievement
of desired results. Clearly, South Dakota is a preferable option, which comports
with the preferential status South Dakota enjoys within the estate planning com-
munity. The state “has been traditionally rated as a top tier jurisdiction for its trust
laws. . . [It] has chartered approximately 100 public and private non-depository
trust companies, with over $300 billion in assets under management . . . making
the state one of the top for most state-chartered trust companies in the nation.”
397
Clearly, the trust advantages available in South Dakota offer the settlor
greater freedom to give, devise, and bequeath. That is, a settlor may create an inter-
vivos revocable trust in South Dakota, thereby taking advantage of the robust trust
industry available in the state, but also, by notifying any person with standing to
contest of the creation of the trust, sending a copy of the trust instrument, the trus-
tee’s name and address, and the time during which contest may be initiated, the
settlor has the opportunity to settle contest during his or her lifetime.
398
Although
contest during the settlor’s lifetime does not guarantee a favorable result, it does
at least offer an opportunity for the settlor to become involved; the settlor can still
exercise options should the contest gather merit.
Recall that Seward Johnson’s wife had sought to establish her husband’s
capacity during his final years, but as the thicket of mental capacity indicates, there
is no certainty as to outcome.
399
Likewise, Huguette Clark’s “medical charts, with
notes from various nurses and doctors, shows that [her] mind seems to have been
clear and sharp throughout [the period she signed her wills].”
400
And by the time
Sumner Redstone reached the end of his life at age ninety-seven, he was “bedrid-
den, being fed intravenously, and ‘a team of nurses and conservators stand by for
needed [medical assistance].’”
401
Timing is extremely relevant. “Indeed, such
cases many times turn on the settlor’s capacity and intentions, and a court is in a
better position to judge such capacity and intentions during the settlor’s life when
the settlor herself can be examined than after her death, when usually only third-
party testimony is available.”
402
396
Sacks, 178 N.E. 3d at 399.
397
Terry N. Prendergast & Ashley G. Blake, South Dakota, 158 TR. & EST. 55 (2019).
398
S.D. CODIFIED LAWS § 55-4-57(a) (2023) (sixty days after notice, or one year after the death of the
settlor); UNIF. TR. CODE § 604(a) (120 days after notice, or three years after the settlor’s death).
399
MARGOLICK, supra note 12, at 158 (Doctor Schilling signed a paper affirming that his patient’s mental
condition was first rate); id at 386 (Schilling would say that the cancer that was killing Seward had not
affected his mind); id. at 423 (there was no evidence that his disease had in any way affected Seward’s
brain); id. at 520 (describing how Dr. Schilling’s testimony concerning the competence of Seward had mis-
fired and been harmful to Basia’s interests).
400
DEDMAN & NEWELL, supra note 84 at 298.
401
STEWART & ABRAMS, supra note 158 at 343.
402
Terry N. Prendergast & Ashley G. Blake, South Dakota, 158 TR. & EST. 55, 57 (Aug. 2019).
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B. A Suggested Strategy
1. Trust Situs
State legislatures have become extremely proactive by enacting trust laws
to accommodate settlors, especially those with significant wealth that would ben-
efit the state in which it is deposited.
403
For example, a domestic assets protection
trust (DAPT), a spendthrift trust that allows a settlor to isolate the settlor’s assets
from his or her own creditors, is now available in more than twenty states, starting
when Alaksa enacted it in 1996.
404
Each year additional states enact this legisla-
tion, spawning an ever-expanding corporate trust business in that particular state.
It is not surprising that South Dakota is ranked in the top tier of those states enact-
ing DAPT statutes,
405
and furthermore, “South Dakota is regarded as the premier
trust jurisdiction in the nation and a leader in developing and implementing new
trust laws.”
406
In an accommodating fashion, South Dakota could provide a favorable
situs for a settlor seeking to take advantage of the state’s limitation on actions
concerning the validity of a trust. It is common for settlors to seek out the most
favorable jurisdiction, thereby avoiding objectionable laws such as the Rule
Against Perpetuities, state death taxes, and the like. “Choice of trust situs and
wealth preservation have long been trust planning concepts that should be pro-
tected.”
407
And even without declaring the jurisdiction as his or her domicile, “a
settlor may designate the [state] law governing a trust unless it can be shown that:
(1) trust situs and trust administrative ties to the relevant . . . [state] jurisdiction
aren’t substantial; and (2) creating a . . . [trust] jurisdiction violates a strong public
policy of the settlor’s domicile jurisdiction.”
408
Situs shopping is part of estate
planning, and the laws of South Dakota may be utilized to promote freedom to
give, devise and bequeath. Undoubtedly, other states will follow.
2. Disclaimer
If a testator or settlor wishes to avoid contest, he or she may offer an heir
the opportunity to refuse to accept, to disclaim, “an interest in or power over prop-
erty.”
409
To be effective, the disclaimer must be in writing or another record, de-
clared as a disclaimer, and describing the interest disclaimed.
410
It must then be
403
See, e.g., Sharon L. Klein & Jenna M. Cohn, The State of the States: 2022, 162 TR. & EST. 46, 47
(2023).
404
Mark Merric & Daniel G. Worthington, Best Situs for DAPTs in 2023, 162 TR. & EST. 58 (2023).
405
Id. at 63.
406
Patrick G. Goetzinger & Thomas E. Simmons, South Dakota’s “Trust Task Force,” 26 TR. & TR. 637,
640 (2020).
407
Merric & Worthington, supra note 392, at 67.
408
Id. at 68.
409
UNIF. DISCLAIMER OF PROP. INT. ACT § 2-1102(3) (2006).
410
Id. at §§ 2-1105(c).
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signed by the disclaimant and delivered to the personal representative or adminis-
trator of the estate as demanded.
411
Under the Uniform Disclaimer of Property
Interests Act, “the ability to disclaim interests is comprehensive; It does not matter
whether the disclaimed interest is vested, either in interest or in possession.”
412
When a person disclaims an interest in property, he or she is treated “as
if the disclaimant had died immediately before the time of distribution,” making
that person ineligible to contest any trust or will.
413
However, should there be de-
scendants of the disclaimant they would share in the disclaimed interest by any
method of representation had the disclaimant died before the time of distribution,
such as antilapse, intestate succession, or as an alternate taker.
414
These possibili-
ties lessen the utility of any disclaimer effective enough to eliminate contest of
any gift, devise, or bequest. Huguette Clark, for example, was survived by eleven
half-grandnieces and grandnephews, and “eight were a generation further re-
moved, her half-great-grandnieces and grandnephews.”
415
Even the remotest of
possibilities is unwarranted, prompting further inquiry. Which suggests the possi-
bility of using a more recent estate planning tool, a trust protector.
3. Trust Protector
The term “trust protector” is illustrated in the Uniform Directed Trust Act
(UDTA), an Act first introduced by the Uniform Law Commission in 2017, now
enacted in sixteen states and introduced in three others.
416
The Act seeks to make
uniform complications arising from various state statutes pertaining to directed
trusts,
417
but its impact is evolving among practitioners.
418
The concept is a simple
one, settlors prefer the appointment of a more personal overseer of their assets and
intentions than relying solely on the appointed trustee, usually a corporate trustee.
“Under the UDTA a directed trust is any trust in which there is a power of direc-
tion, and a power of direction includes any power to direct the trustee and any
power to act independently.”
419
Although simple, the use of a trust protector is but
411
Id. at §§ 2-1105(c), id. at 2-1112(c). The time of distribution of present interests created by will and all
interests arising under the law of intestate succession is the death of the decedent. Id. at § 2-1106 cmt.
412
Id. at § 2-1105 cmt. For a discussion of the irrevocability of a disclaimer, see, for example, Carvalho
v. Estate of Carvalho, 978 A.2d 455 (Vt. 2009) (holding that irrevocability may be negated by sufficient
suspicious circumstances).
413
UNIF. DISCLAIMER OF PROP. INT. ACT § 2-1106(b)(3)(B).
414
Id. at § 2-1106(b)(3)(C).
415
DEDMAN AND NEWELL, supra note 84 at 325.
416
See UNIF. LAW COMM’N, Directed Trust Act, https://www.uniformlaws.org/committees/community-
home?CommunityKey=ca4d8a5a-55d7-4c43-b494-5f8858885dd8 (last visited Aug. 29, 2023).
417
See, e.g., DEL. CODE ANN. tit. 12 §3313 (2017); S.D. CODIFIED LAWS §§ 55-1B-9, 55-1B-10, 55-1B-
11 (2020); ALASKA STAT. §§ 13.36.370 (2013); John D. Morley & Robert H. Sitkoff, Making Directed
Trusts Work: The Uniform Directed Trust Act, 44 ACTEC L.J. 3,6 (2019) (“The case law is sparse, and
notwithstanding the success of the Uniform Trust Code, existing statutes are in disarray.”).
418
See, e.g., Michael A. Sneeringer & Jordan D. Veurink, Directions to Trust Directors of Directed Trusts,
36 PROBATE AND PROPERTY 30 (2022) (discussing variations among state laws pertaining to trust protec-
tors).
419
Brad Dillon & Todd D. Mayo, Practical Considerations in Designing and Administering Directed
Trusts and Divided Trusts, 49 EST. PLAN. 5, 7 (Dec. 2022).
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one more change illustrating the “slicing and dicing of the traditional trustee func-
tion into ever more segregated but interrelated parts.”
420
Trust protectors are nascent,
421
only a few states enacting similar legisla-
tion prior to the Act, resulting in few cases to establish the parameters of this new
legislation.
422
But at essence the Act and the process it illustrates permits the terms
of a trust to “grant a person other than a trustee a power over some aspect of the
trust’s administration, subject to the “same default and mandatory fiduciary duties
as a trustee in a like position and under similar circumstances.”
423
Among its ben-
efits is the “[promotion of] settlor autonomy in accordance with the principle of
freedom of disposition,” but the true extent of its impact is being developed among
estate planning practitioners.
424
This trust protector does not hold legal title to the trust property, which is
held by the trustee, but the protector has the same fiduciary responsibilities as the
traditional trustee in a like position and under similar circumstances.
425
Logically
then, the fiduciary responsibilities of the trustee are reduced in proportion to the
protector’s power of direction,
426
the trustee ultimately being responsible for his
or her willful misconduct.
427
It is incumbent upon the trustee to provide the trust
protector with information pertaining to the trust, so that the trust protector may
exercise “power over the investment, management, or distribution of trust property
420
Elizabeth Deleery, et al., Trust Advisors, Trust Directors, and Trust Protectors, BOGART’S THE LAW
OF TRUSTS AND TRUSTEES § 137 (2023) (citing Wayne E. Reams, Beyond UTC Section 808 and the Uniform
Directed Trust Act, 45 ACTEC L.J. 61 (2019)). For examples of how a trust protector may be used, see Al
W. King III, Tips From the Pros, 160 TR. & EST. 15 (2022); Al W. King III, Flexible Trusts to Deal With
Future Uncertainties, 160 TR. & EST. 16 (2021).
421
See, e.g., In re Peterson, No. 19-20027, 2022 WL 17979977 (Bankr. D. Wyo. 2022) (holding that the
state’s recent enactment of the Act in 2021 does not affect conduct occurring before that date).
422
See, e.g., DEL. CODE ANN. tit. 12 § 3313; NH RSA 564-B:12-1201 (trust advisors and trust protec-
tors); S.D. CODIFIED LAWS § 55-1B-1.1 (trust advisors and trust protectors); TENN. CODE ANN. § 35-15-
1201 (trust advisors and trust protectors); and WYO. STAT. §§ 4-10-710 (trust protectors) and 4-10-712
(trust advisors); see also Craig J. Krogstad & Matthew P. Bock, Modern Trust Governance, 61 S.D. L. REV.
370, 371-73, 375-77 (2016) (discussing legislation in South Dakota).
423
UNIF. DIRECTED TR. ACT prefatory note. For a sample form establishing a trust protector see Trust
Protector Provisions, REPRESENTING THE ELDERLY & DISABLED CLIENT § 19.24 (May 2023); see also
Mary Babb Morris, Agreement in Which Settlor Reserves Power to Direct Trustee, 14 MICH. PL. & PR. §
111:81 2d ed. (2023).
424
UNIF. DIRECTED TR. ACT refatory note; see generally William D. Lucius & Shirley B. Whitenack,
Directed Trusts: A Primer on the Bifurcation of Trust Powers, Duties, and Liabilities in Special Needs, 15
NAELA J. 71 (2019) (discussing directed trusts and elder law and special needs planning).
425
John D. Morley & Robert H. Sitkoff, Making Directed Trusts Work: The Uniform Directed Trust Act,
44 ACTEC L. J. 3, 6 (2019); UNIF. DIRECTED TR. ACT § 8 (a)(1).
426
Id. at prefatory note.
427
Id. at § 9(b); Morley & Sitkoff, supra note 425, at 32 (“The UDTA thus relieves a directed trustee from
the full fiduciary duties of a unitary trusteeship, and leaves a directed trustee with only a reduced duty to
avoid ‘willful misconduct’ in deciding whether to comply with a director’s directions.”); see also Rollins v.
Branch Banking & Trust Co. of Virginia, No. CH00–488, 2001 WL 34037931 (Va. Cir. Ct. 2001) (holding
that trustee was not liable for following the protector’s direction, but was liable for failing to notify the
beneficiaries).
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or other matters of trust administration.”
428
Seemingly, the power of the trust pro-
tector is unlimited, yet it does not extend to negating the ability of a settlor of a
revocable trust to revoke the entire trust.
429
Modern trusts “are lasting longer, thanks to trends in longevity and per-
petuities legislation,” which means that settlors and those who are their advisors
must draft trust terms that are durable.
430
To accomplish this, express powers are
preferred over default ones, which would include granting to the trust protector
the express authority to make a determination of the settlor’s capacity to create a
trust, which is consistent with provisions in the Act providing that “power of di-
rection” includes power “to determine the capacity of a trustee, settlor, director,
or beneficiary of the trust.”
431
Furthermore, if the power is expressly stated, a
judgement as to capacity is consistent with the Act’s provision that, “[u]nless the
terms of a trust provide otherwise, a trust director may exercise any further power
appropriate to the exercise or nonexercise of a power of direction granted to the
director.”
432
As illustrated among Seward Johnson, Huguette Clark, and Sumner Red-
stone, establishing mental capacity is elusive, although the protector need only
comply with standards appropriate at the time of trust creation, which is in accord-
ance with the protector’s duty as a fiduciary.
433
Once capacity is established by
the protector, the trust is thereby validly created,
434
the protector may then “in-
crease, decrease, modify or restrict the interests of any beneficiary of the trust”
throughout the duration of the trust.
435
In South Dakota, legislation permits “busi-
ness entities” to serve as trust protectors, which provides for continuity, compared
to naming an individual,
436
and will be particularly useful if the settlor intends a
long-term dynasty trust.
428
UNIF. DIRECTED TR. ACT § 10; id. § 2(5); see, e.g., Matter of Rubin, 540 N.Y.S.2d 944 (N.Y. Sur.
1989), aff’d 172 A.D.2d 841 (1991) (affirming the power of direction given by a decedent over the assets
in his estate).
429
UNIF. DIRECTED TR. ACT § 5(b)(3).
430
Hugh R. Magill, Trusts and the Modern Family, 159 TR. & EST. 37 (2020).
431
UNIF. DIRECTED TR. ACT § 6 cmt.
432
Id. at § 6(b)(1).
433
See, e.g., Scott Y.H. Kim, et al., Broad Concepts and Messy Realities: Optimising the Application of
Mental Health Criteria, 48 J. MED. ETHICS 838, 839 (2021) (discussing capacity evaluations); see also Reid
Kress Weisbord & David Horton, The Future of Testamentary Capacity, 79 WASH. & LEE L. REV. 609,
673-77 (2022) (discussing mental capacity and nonprobate transfers).
434
See UNIF. TR. CODE § 404 (2000) (trusts cannot be unlawful, against public policy, or impossible to
achieve); id. § 601 (capacity to create a revocable trust is defined as the same necessary to make a will; to
create an irrevocable trust the settlor must have the capacity needed to transfer property free of the trust);
RESTATEMENT (THIRD) OF TRUSTS § 11 (1996).
435
Louis A. Silverman, Key Mistakes When a Revocable Trust Becomes Irrevocable, 46 EST. PLAN. 3, 11
(2019); South Dakota’s code provides for a distribution trust advisor, see S.D. CODIFIED LAWS § 55-1B-11
(2020).
436
See S.D. CODIFIED LAWS § 51A-6A-66 (2004 & Supp. 2015); see also Craig J. Krogstad & Matthew
P. Bock, Modern Trust Governance, 61 S. D. L. REV. 370, 375 (2016).
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Another advantage of a settlor using a protector is the protection it offers
from allegations of financial abuse, often resulting from significant intervivos gifts
made by persons classified by statute as elders to caretakers and companions.
437
Seward Johnson made significant gifts to family and charities favored by his wife
Basia; Huguette Clark did likewise with magnanimous gifts to her nurse, the
nurse’s family, and the hospital where she lived for decades; Sumner Redstone
lavished property, stocks, and unlimited credit cards upon two female companions.
Although each of these persons employed financial advisors and accountants, not
one of these professional persons or institutions was empowered to withdraw con-
sent to any gifts made by the principals.
438
An example of the viability of limiting consent of the principal occurred
in Dunn v. Patterson, involving a married couple who executed a revocable inter-
vivos trust, among other documents, each of which “provided that any amendment
or revocation of the documents may only be executed with the written consent of
[their attorney or a court].”
439
Later, the couple sought to remove the attorney from
his consent responsibility, but the attorney would not relinquish his role without
verification from the client, and they refused to meet that standard.
440
The couple
then petitioned the court to remove him, alleging that his role in the documents
requiring his consent to any changes violates public policy because the same at-
torney prepared the documents.
441
But the court disagreed, holding that provisions
requiring consent of a third party are justifiable in light of the possibility of finan-
cial abuse, and furthermore, an attorney may draft the consent requirement docu-
ment and also serve as the person required to give consent.
442
Other than creating
an irrevocable trust, requiring a third party to give consent to actions initiated by
the principal offers protection for a vulnerable settlor.
Taken as a whole, an efficient and knowledgeable trust protector may of-
fer the older settlor the opportunity to refute any allegation of elder financial abuse,
and retain for the principal the satisfaction of making significant gifts to third par-
ties to whom the protector consents.
437
For discussion of elder financial abuse, see supra, at III. C. Elder Financial Abuse. Financial abuse
occurs when a “person wrongfully takes or appropriates money or property of a vulnerable person, without
regard to whether the person taking or appropriating the money or property has a fiduciary relationship with
the vulnerable person.” OR. REV. STAT. 124.110(1)(a) (2023). Wrongful includes threats, undue influence,
violence, intimidation, deceit, misrepresentation, bribery, unfounded litigation, defamation, and disparaging
falsehood. Church v. Woods, 77 P.3d 1150, 1153 (Or. Ct. App. 2003); see also NEB. REV. STAT. § 28-358
(2020); MONT. CODE ANN. § 45-6-333(2) (2020).
438
For a discussion of limiting decision-making, see, for example, Bruce D. Steiner, Protecting Against
Elder Financial Abuse, 158 TR. & EST. 2, 203 (2019).
439
Dunn v. Patterson, 919 N.E.2d 404, 406 (Ill. App. Ct. 2009).
440
Id. at 408.
441
Id. at 410.
442
Id. at 411. There are professional responsibility dangers inherent in an attorney assuming a decisional
role for the attorney’s clients. See, e.g., Ann Gushurst, Serving Adults with Diminished Capacity in Domestic
Relations Matters, 51 COLO. LAW. 40, 42-43 (2022).
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V. CONCLUSION
The illustrations provided by Seward Johnson, Huguette Clark, and
Sumner Redstone are instructive to other wealthy donors and the professionals
they employ. Wealth does not guarantee the luxury of gifting it to whomever you
wish. The law provides standing—status—to individuals who, under the guise of
protecting what the decedent truly intended, may contest any gift to persons other
than themselves by arguing there was a lack of formalities, intentionalities, or in-
tentional interference with their inheritance. Even irrevocable inter-vivos gifts are
not immune from challenge, as elder financial abuse is rampant, and gifts to those
in confidential relationships are suspect.
This Article addresses whether there is any possibility that a donor may
gift assets to others and be immune from challenge. It also acknowledges that the
challenge not only encompasses the merits of formalities or intentionalities, it en-
compasses the significant cost of legal representation, the protracted drama of
court contest, the loss of privacy, and the emotional toll. The three individuals
referenced in this Article illustrate these costs.
Modern estate planning offers a possible solution to the dilemma faced
by today’s older wealthy and independent donors. And statistics reveal that there
are many, the number increasing each day. The widespread use of nonprobate
transfers, especially inter-vivos trusts, offers an opportunity to meet a potential
challenge during lifetime, especially if the trust is created in a state supportive of
limiting challenge to both formalities and intentionalities. In addition, if the trust
includes another innovation, a trust protector, said protector may offer substantial
protection against capacity challenges to the creation of the trust itself, or to sub-
sequent distributions from it to those favored by the settlor.
There are very few certainties in life, but what illustrates modern estate
planning is the opportunities it provides for those seeking to best serve the interests
of the client. This Article offers a suggestion on how best to give, devise, and
bequeath.
