After nearly six months, the trial of Anthony Marshall is winding down and jury deliberations have begun, as recently reported by the Associated Press in the San Diego Union Tribune. Marshall, a Broadway producer, is the only son of Brooke Astor, one of New York’s most well known philanthropists and socialites, who died at the age of 105 in 2007, leaving behind an estate estimated to be worth $198 million. The 85-year old defendant stands accused of grand larceny, forgery, and of allegedly defrauding his mother of her estate by making changes to her will when she no longer had the mental capacity to do so, says the Los Angeles Times. The article further details that the prosecution claimed that Astor was affected by Alzheimer’s disease and didn’t have the ability to know that she was making changes to her will. Meanwhile, the defense looked to contradict witness testimony and prove that at the times the will was modified, Astor had a clear state of mind, and was genuinely motivated to make the changes benefiting her son because she loved him. After hearing 74 witnesses (including figures such as Henry Kissinger and Barbara Walters) and arguments on both sides, it remains to be seen how the jury will decide on the charges against Astor’s son.
To make or change a will, California law sets a threshold for mental capacity, requiring you to be of “sound mind.” The level of capacity required here is different than it is for other legal matters, and generally means that you understand who your family is, what property you own, and recognize that the actions you’re taking are to create or change your will. A person can be considered to lack capacity for many different reasons, including mental disorders if it affected the individual’s disposition of property, or even for temporary reasons like intoxication. Even if a person has displayed a few isolated acts of questionable mental capacity, this doesn’t necessarily mean that at the time of making or changing the will, a person was of unsound mind, which is what’s required to prove a will is invalid on this basis. That’s why the defense in the Brooke Astor case took great care in trying to establish that even though the prosecution’s witnesses testified to incidents demonstrating Astor’s possibly diminished mental capacity, at the moments at issue in the case, Astor knew exactly what she was doing.
You may not find the need to change your will 38 times as did Brooke Astor, but it’s essential to have an up-to-date estate plan. One of the main reasons behind having a will and living trust is to provide for your family according to your wishes when you’re gone. Your personal and financial situation is bound to change, and so these documents need to be reviewed regularly to account for these changes. Here are a few events or reasons that often trigger the need to update your will or living trust:
- Your marital status has changed, or you are unmarried but have a partner who you want to provide for
- You’ve recently moved to California, but had created a will or trust under another state’s law
- There’s been a significant change in your financial situation
- You no longer own assets specifically gifted in your will or trust
- You’ve had a child
- The person you elected to serve as your estate’s representative is no longer available
- You’ve decided to change gifts you made in a prior will or trust, or want to leave property to additional people
- There have been changes in income, estate, or gift tax laws affecting your plan
To amend your will, please Do Not simply take a pen to it and cross out what you want to change, while writing in new provisions in the margins. If you do, you may be creating a legal nightmare later on for your kids or others who stand to inherit from you. Many times, this can revoke what you’ve crossed out, yet what you’ve added in may not be a valid amendment, which could open the door to arguments during probate to try to at least bring back what you crossed out. Valid changes to your will have to be written and executed just as your original will was. If you need to make substantial changes to your will, then it may be easier to cancel your existing will through proper revocation methods and create a new one. Make sure your will and living trust haven’t lost their value by becoming out-of-date. Contact San Diego Law Firm’s wills and trusts attorneys at (619) 794-0243.
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