Tuesday, October 9, 2012
Adam G. Province (B.A. from Emory University, a J.D. from Vermont Law School, and an LL.M. from SMU Dedman School of Law) recently published his article entitled Killing Me Softly: A Comparative Review of Chinese Inheritance Law to Address the Problem of Elder Abuse and Neglect in the United States, 22 Ind. Int'l & Comp. L. Rev. 71 (2012). The introduction from the article is below:
Estimates indicate that every year 2.1 million elderly Americans are victims of abuse or neglect. For every case of elder abuse reported, authorities believe another five cases go unreported. While this injustice continues, those same elders provide for their families through inheritance. Every state recognizes the ability of testators to pass property to a descendant when the descendant is named in a testamentary instrument; however, a problem arises when the descendant commits elder abuse or neglect but is still permitted to inherit under the will. Currently, a beneficiary's bad conduct does not alter the testamentary distribution scheme after a testator's death.
On August 13, 2007, philanthropist and socialite Brooke Astor passed away at age 105. She was survived by her only son, Anthony D. Marshall, and his son, Philip C. Marshall. A year before Brooke Astor's death, Philip filed a civil lawsuit against his father, the legal guardian of Brooke Astor. The lawsuit alleged that Anthony neglected to care for Mrs. Astor while profiting from the wealthy estate. Philip claimed that his father paid himself $2.3 million a year for taking care of Mrs. Astor and that he should be removed as guardian.
Prior to this event, a number of changes in Mrs. Astor's estate plan were made. First, the original will from 1997 was revoked when another will was drafted in 2002. Later, in 2003, $3.4 million in securities and Mrs. Astor's home in Maine, valued at $5.5 million, were all transferred to Anthony. Anthony also began taking a commission for selling his mother's works of art. Anthony transferred hundreds of thousands of dollars from Mrs. Astor to his theater company and funded his charities with assets from his mother's estate.
A number of accusations that Anthony tampered with Mrs. Astor's 2002 will were made. Anthony allegedly prepared checks to himself totaling $900,000. Ultimately, the probate estate of Mrs. Astor took years to complete, required weeks of litigation during the criminal trial of Anthony Marshall, and claimed thousands of dollars in attorney's fees. While the Astor probate estate concluded with a jury finding Anthony Marshall guilty of defrauding the estate, the concern remains that absent high-profile victims, cases of elder abuse or neglect will go unpunished.
This Article raises the issue of whether testamentary beneficiaries should be allowed to inherit from a decedent if elder abuse or neglect occurs. Reviewing the Chinese inheritance system provides a different perspective for handling the problem of abusive beneficiaries. Probate reform is needed in the American inheritance system in order to provide a solution to the problem of caring for the elderly.