Recent Articles On Alzheimer's Disease, And Trustee/Beneficiary Relationships

There is not much to this post, primarily because the articles referenced below already thoroughly discuss the issues.  Specifically, both articles shed light upon two common problem areas which can often eventually erupt into estate, trust and probate disputes. 

The first article is from the New York Times and addresses the effect of Alzheimer's Disease and dementia upon an individual's ability to control and account for their finances.  Given our aging population and ever-increasing life expectancy, it's recommended reading for everyone as this concern affects innumerable families in this country. 

The second article is from the Wall Street Journal and touches upon the often-tense relationship between trustees and beneficiaries.   It may especially be interesting and insightful for anyone who already acts as trustee or who may eventually act as a trustee in the future.

Matt House can be contacted by telephone at 501-372-6555, by e-mail at mhouse@jamesandhouse.com, by facsimile at 501-372-6333, or by regular mail at James, Fink & House, P.A., Post Office Box 3585, Little Rock, Arkansas 72203.

UPDATED: Dispute Erupts Over Wealth Of Deceased Billionaire Shopping Mall Developer

Pretty much anyone who has lived in Central Arkansas over the last few decades has been aware of if not actually visited University Mall in Little Rock's midtown area.  While it used to be the hot spot for shopping many moons ago, in more recent years it became better known for its empty stores and the litigation that resulted from disputes over the mall's management.  The mall closed in 2007, demolition began in 2008, and a brand new mixed-use development appears imminent for the property in the next year or two.  

Anyone familiar with University Mall is also undoubtedly aware of its close proximity to Park Plaza Mall.  Ever since moving to Arkansas back in 1992, I never understood why University was built almost literally next door to Park Plaza (built a few years earlier in 1959), yet another enclosed shopping mall.  But I guess that's why I'm a mere lawyer and the folks who make the big bucks are mall magnates like Melvin Simon. 

Specifically, University Mall was developed by Melvin Simon & Associates, an Indianapolis-based real estate development and management company which later became known as Simon Property Group.  I mention this because Simon Property Group is evidently the largest public U.S. real estate company, and shopping mall development made the company's namesake---Mr. Simon---a very wealthy man.  He and his brother, who also co-founded the company, eventually purchased the Indiana Pacers franchise of the National Basketball Association. 

According to a recent post on the Florida Probate & Trust Litigation Blog,  the Wall Street Journal writes that a wealth war has begun over the terms of Mr. Simon's will.  Apparently, Mr. Simon's wife was only supposed to receive approximately one-third of his fortune and, after some changes were evidently made to his will a few months before his death, she now stands to receive about one-half.  Considering that his wealth has been estimated at $1-2 billion depending upon the fluctuating stock price of his company, even minor changes in his will could amount to a major redistribution of wealth.  Notably, the changes cut out Mr. Simon's three children from his first marriage.  

At least one of those children is now suing Mrs. Simon, their stepmother, contending that she unduly influenced Mr. Simon and persuaded him to change his will to reduce the children's inheritances.  The lawsuit also alleges that Mr. Simon had dementia and needed assistance signing the document, to which Mrs. Simon has now apparently responded that while he did in fact have Parkinson's Disease and needed help with his signature, he voluntarily signed a new will and trust of his own free will.  This will be a wealth war worth watching in the next few months. 

Seemingly sudden changes to wills and trusts shortly before someone dies are one of the most common disputes arising in estate, trust and probate litigation.  As the Baby Boomer generation begins to retire and ultimately pass away, there will no doubt be millions more similar disputes in the decades to come. 

UPDATE:  The following link contains the latest update (as of 2/11/10) from the Wall Street Journal.

Videotaping As Possible Way To Preclude Estate, Trust & Probate Litigation

You may remember a movie from 15 or so years ago called "My Life," starring Michael Keaton and Nicole Kidman, in which a terminally ill man films a video for his unborn child to watch after the man passes away after a fight with cancer.  The father essentially wanted the child to know who the father was and what the father had learned in his own life, since he would not be around when the child was growing up. 

While the movie was not focused upon an estate or trust battle, I was still reminded of "My Life" yesterday when reading the December 7, 2009 post on the Wills, Trusts & Estates Prof Blog, which had an interesting link to a December 3, 2009 Wall Street Journal article written by Kristen McNamara and entitled "Lights, Camera . . . Last Words."  The article discussed videos as a way of allowing the dying to say a few last words and also possibly prevent legal disputes regarding property division after death.  Here is an excerpt from the Blog and the article itself:

"Some individuals have found a way to breathe life into dry estate-planning documents: They're supplementing them with personal messages via video.

With guidance—and caveats—from attorneys and financial advisers, some elderly and terminally ill individuals, and even some young parents, are picking up video cameras or hiring professional videographers to share their life stories, express hopes for younger generations and explain why they're leaving certain assets to certain family members. * * *

[E]xperts say that while videos can head off disputes, if not carefully executed, they also can backfire. * * *

A video may make sense if you are concerned that an heir will claim you weren't competent when you signed estate-planning documents or were pressured to distribute your assets a certain way, estate-planning attorneys say. Videos in which lucid individuals review their wills with their attorneys and answer questions that demonstrate their understanding of the documents and confirm they weren't coerced into any decisions can be useful in rebuffing challenges, they say. Such videos are typically filmed during a will-signing in an attorney's office and are kept by the attorney, along with the estate-planning documents. * * *

Attorneys generally caution against homemade videos, saying they are more likely to cause problems than those produced in consultation with an attorney. A video filmed by a beneficiary, for example, could give rise to conflict-of-interest questions. And, whether filmed professionally or not, a video in which a person looks ill or uneasy could raise questions about his or her cognitive abilities."

My personal view on this is that---overall---technology is a good thing and if it can be used to help rather than hinder in the course of estate planning, then it should be considered as part of the process.  After all, there is little doubt in the criminal context that many a disputed traffic stop, questioned search and seizure, and controversial police station interrogation could be averted if such proceedings were videotaped to ward off the "he said, she said" nature of these events.  Likewise, it seems that if an individual had a video camera and (vis-a-vis an objective, detached cameraman) proceeded to film a will or trust signing ceremony, held up each page of the document to the camera, interviewed or showed the witnesses and other participants, videotaped the actual signatures and notarizations, and otherwise allowed the individual to talk at length during the proceeding, that this could conceivably preclude many a disputed proceeding involving fraud, undue influence, and the like.