For those above a certain age and/or for those from New York City, the Astor family name is synonymous with wealth and charity.

Brooke Astor lived a long and storied life.  She died in 2007 at age 105.  Her son, and an attorney, Anthony Morrissey, who did estate planning for her are on trial in a Manhattan courtroom for among other things, larceny, scheming to defraud and forgery.

The basic prosecution case is that while Mrs. Astor was suffering from Alzheimer’s disease for the last seven years of her life, her son caused her to change her will, forged her name on a codicil, and sold a painting that she was attached to while pocketing a 20% commission.

The prosecution called 72 witnesses over the almost 17 weeks it took to put on its case.  Many of its witnesses had no direct connection to the case, but testified because the prosecution wanted to demonstrate that Mrs. Astor was not competent during the time period that the “acts” were committed. 

Every day in southern California, estate planning attorneys are asked by someone’s child to prepare a trust, or a will, an amendment to a trust, or a codicil to a will, when it is evident to the estate planning attorney, that the parent is not leading the child, but rather the child is leading the parent.  Frequently the motive of the child is harmless – in fact it will be of benefit to the parent.  However, sometimes the motive is not harmless and the primary motive is to alter the wishes of the parent.  It is in those situations that the attorney can become either the defendant in a civil lawsuit or the defendant in a criminal prosecution.

Probate litigation frequently involves claims of undue influence.  Whether or not Mrs. Astor actually signed one of the codicils to her will is important, but almost beside the point.  The key questions are whether it was something that she wanted to do, that she knew what she was doing, that she was not unduly influenced, and that she was competent to do so.