Death and Taxes - The Blog

Patrick White's Executor and the Decedent's Wishes

The term "Kafka-esque" tends to be overused, but it's probably an appropriate description for the case of Patrick White.  Mr. White, Australia's only Nobel Prize winner for literature (in 1973), died in 1990.  According to this article,

if White's wishes - as expressed in his will - had been followed, all his unfinished work was to be burnt after his death.

But... the author's literary executor Barbara Mobbs just couldn't do it.

Mr. White's personal papers have now been acquired by The National Library of Australia.

The article goes on to list other similar cases where a writer's work wasn't destroyed even though that was the writer's wish -- a list that includes Hemingway, Orwell, Dickinson, Nabokov, Maugham and, of course, Kafka (whose case I discussed briefly here).

Rosa Parks and Valuing the Property of Famous People

I've written lots of times (most recently, here) regarding the controversy in the estate of Rosa Parks.  According to this article, the parties are talking settlement.  The question involves whether Mrs. Parks' friend and associate Elaine Steele "used undue influence to convince Parks in 1998 to leave the bulk of her estate to the Rosa & Raymond Parks Institute for Self Development."  I can't say that I've ever heard of someone exerting undue influence to get someone to leave their estate to charity, but I suppose there's a first time for everything. 

One interesting issue involves the valuation of Mrs. Parks' personal property:

An auction house is cataloging Parks' estate, chiefly to determine what of value she left when she died.

But [the attorney for Mrs. Parks' nieces and nephews] said placing a value on many items is difficult, however. What, for example, is the value of a plate Parks used when eating with then-President Clinton?

This is an interesting valuation problem.  What's the value of...

one of my dinner plates?
one of Mrs. Parks' dinner plates?
one of Mrs. Parks' dinner plates used when eating with then-President Clinton?

Valuing everyday items that have value only because of the identity of their owner is tricky business.

Porgy, Bess and Ira Gershwin's Executor

According to this article, the only existing Technicolor road-show print of Porgy and Bess is being shown at the Los Angeles County Museum of Art on Saturday.  This story has a probate connection because of comments previously made by Ira Gershwin's executor:

The Gershwin family never liked the film because they felt it was too "Hollywood." In a 1993 interview with The Times, Michael Strunksy, trustee and executor of Ira Gershwin's estate, raised eyebrows and the ire of film historians and preservationists when he stated "we [the estate] now acquire any prints we find and destroy them."

This raises an interesting question about an executor's job.  Usually the executor is charged with maximizing the value of an estate's assets.  How do Mr. Strunksy's comments accomplish this?  Is it more important to maximize asset values, or to be "true" to what the decedent wanted?  This reminds me of Franz Kafka as well, since Mr. Kafka asked his literary executor (Max Brod) to destroy all of his manuscripts upon his death.  (Mr. Brod obviously disobeyed this order.)

Kirby Puckett, Powers of Attorney and Gifting

I previously blogged about litigation in the estate of Buddha-bellied Hall of Famer Kirby Puckett here.  According to this article, Mr. Puckett's ex-wife (Tonya Puckett) is now attempting to have the executor of Mr. Puckett's estate, Brian Woods, removed from his post.  Ms. Puckett claims that Mr. Woods "is no longer qualified to manage the estate because he has a 'significant and irreconcilable conflict of interest' stemming from his role in the money transfer and statements he made about taking care of Puckett's fiancee, Jodi Olson."

She alleged that Woods told her in the hours before Kirby Puckett died that Olson was not named in the will and that she needed to "be taken care of, and that $1 million to $1.5 million needed to be given to her."

...

The petition also alleges that on the day Puckett died, his longtime agent, Ron Shapiro, acting under a power of attorney, transferred money from Puckett's account to Olson's.

The petition said the "gift" was "a clear violation" of Arizona law. Woods "was effectively an accomplice," it said, because he was aware of the transfer and did nothing to stop it or, later, recover the money.

[Mrs. Puckett's attorney] said Tuesday that the transfer was made even though William Brody, a Minneapolis attorney representing Woods, advised Shapiro before the transfer that such a transaction was not authorized by the power of attorney agreement.

The question of whether an agent under a power of attorney can make gifts on behalf of the principal -- either directly or by changing the principal's estate plan -- has always been an important one. 

In Illinois, the statutory form for a power of attorney for property includes a long list of powers granted to the agent, but doesn't include the power to make gifts.  I typically include such a power if my client wants it. 

The above article mentions Arizona law -- I assume that Mr. Puckett executed an Arizona power of attorney for property.  However, it doesn't appear to me that Arizona has a statutory form for this document, so the question of whether the gift was a "clear violation" of Arizona law depends on the specific language of the power of attorney Mr. Puckett executed.   

Marlon Brando: Messy Life, Messy Estate

Marlon Brando lived a messy, complicated life -- should we surprised that his estate has turned into a bit of a mess as well? This article from the BBC discusses the latest charges -- including that Mr. Brando's signature on his latest codicil was forged -- and also discusses some of the other issues relating to the estate.

A Rebuttal From Greg Magnesen

After I reviewed The Investigation (here and here), I had a few e-mail exchanges with Greg Magnesen (the author's son) and Robert Deiro (the author's key witness).  While my review wasn't the most positive, Mr. Magnesen and Mr. Deiro have always been very cordial.   

After my post on Wednesday about the return of Melvin Dummar, I received another e-mail from Greg Magnesen, who graciously agreed to allow me to post it as a rebuttal:

I noticed a new blog on your site.  I suppose it is not too surprising given the new developments.  Just thought I would comment on the points you brought up in the latest installment. 

As to #1- Mutually exclusive ways to put Hughes on the road--
The outing to the Mizpah and subsequent search was a completely separate occasion of Hughes leaving (with employees and aides- thereby making their assertions in court that Hughes never left his penthouse perjury, and the destroying of the records from that time period evidence tampering).  The event when Melvin picked Hughes up was when Deiro flew Hughes to the Cottontail Ranch- a completely separate event (also proving there were witnesses to him leaving).  Deiro has also said that he took Hughes out flying on other occasions, not only to brothels, but on practice approaches in scouting locations for a supersonic airport Hughes was thinking of building in Southern Nevada.

#2- Deiro's story
Deiro was like most other people in thinking that Dummar's story was comical at best.  It was not until the Las Vegas Review Journal published an article mentioning the connection between the Dummar-Hughes incident and the proximity to the Cottontail Ranch that he started to realize his own role in the events. He was told that Hughes left with someone, so he flew a few circles in his plane, and went home.  Whether or not taking his boss to a brothel is appropriate is beside the point.  When Hughes said jump, his employees lept with all they were worth or would find themselves in a much less lucrative position.  (Just a quick example- Employees found out Baskin Robbins was discontinuing Banana Nut Ice Cream- Hughes favorite at the time- so they bought up as much as they could out of fear of the repercussions, only to have him change his favorite to vanilla shortly thereafter).  You did not question Mr. Hughes if you were in his employ.  He was weird, and did whatever he wanted.  Why did Deiro circle?  Since Hughes did not come with anyone but him, he may have thought they were mistaken and Hughes did not leave with someone else.  He did not see him anywhere nearby in the desert, so headed home- thinking maybe he did leave with someone else.

#3- '67 incident=validity of will
As I stated in a previous email- the '67 incident only adds to the evidence supporting the validity of the will.  In his investigation, my dad spoke with one of the living jurors who did not remember tesitimony from an aide about Hughes actually leaving.  The foreman of the jury had typewritten notes each night and handed them out the next day, and this testimony was left out of the typed notes as far as he could remember.  This juror said the jury's decision was based almost entirely on whether or not Melvin could actually have picked the old man up in the desert.  As the notes from the foreman were what they were working from, and the notes said the aides were all lock-step on the fact that Hughes never left, they found the will to be a forgery. He said that if the jury had heard enough evidence that Hughes was out of the Desert Inn at any time, they would have found in favor of the will.  That is the reason the '67 incident was so crucial to the case.  As far as the will itself being legitimate standing on its own, Stein says they are prepared with evidence to argue that as well.  Stay tuned--

And now- you state that: "The article ends by stating that, if Mr. Dummar is successful with his lawsuit, Mr. Magnesen will collect 10% of the court award.  That fact raises a significant question about Mr. Magnesen's motives in writing his book -- is he uncovering The Truth, or a moneymaking endeavor?"  The original intent of this book was to help a man suffering from cancer and years of vilification as a liar to be able to have his story told after so many years, and before he dies.  My dad was interested in trying out his "sea legs" in the investigative field again, and the story interested him.  He is a born investigator.  We as a family have seen his endeavors and the excitement when he came up with new findings.  Seriously, you should have heard how almost giddy he was when he found out Hughes owned the mines at the end of the road Melvin picked him up on and many others in the area after pouring through tomes of lists of claims.  When he finally did get a publisher to take a chance on a brand new writer, he has never wanted to talk about money.  He did not even want to know from the publisher how many books he has sold.  I still do not know, as he does not want to find out.  He has said on multiple occasions that, and I quote, "I just hope I get back enough in book sales to cover my expenses."  Up until recently, his only thought about the legal ramifications of his findings were that the statute of limitations on the estate ran out long ago.  Then he contacted Stuart Stein after the radio show, and they got to talking.  They contacted Melvin, and he was initially hesitant to get back into the legal course of things, as it did not go well for him the first time.  Finally he decided he had little to lose, and the show got on the road.  It has always been about the justice that Melvin had stolen from him 30 years ago.  Call it karma or the universe realigning or whatever.  This stolen justice would have originally entitled Melvin to a fortune, and justice still does.  My father did not ask for anything, but Melvin said that it was all because of his investigation that any of this was even occurring, so he offered the 10%.  I don't know a person who would turn that down.  If you worked hard to build someone else a house on your own dime, then found out later there was possibly a large cache of oil under it, and the new owner offered to share with you, I think we all know we would accept it.  I know I would.

Anyway- thanks again for the attention you have given the book (which sales are the only sure money in this whole thing anyway), and for the healthy skepticism.

Sincerely-

Greg Magnesen

Melvin Dummar Returns

In two posts last year, I reviewed Gary Magnesen's book The Investigation (part 1 and part 2 of my review can be found here).  The book's subtitle gives an accurate description of what its author is trying to do: A Former FBI Agent Uncovers the Truth Behind Howard Hughes, Melvin Dummar, and the Most-Contested Will in American History.

Evidently Mr. Magnesen's work has reignited Mr. Dummar's interest in proving that Howard Hughes' so-called "Mormon Will" (which named Mr. Dummar as a 1/16th beneficiary) is authentic.  Yesterday's Wall Street Journal contains an article by Jonathan Karp entitled "Mr. Dummar Is Back, Taking Another Shot At the Hughes Estate."  The article -- which can be found here (subscribers only) -- states that Mr. Dummar has filed a lawsuit against two of Mr. Hughes beneficiaries (William Lummis and Frank Gay), and "alleges fraud, unjust enrichment and racketeering during the probate case... contend[ing], among other allegations, that Mr. Dummar was cheated out of a fair trial because Messrs. Lummis and Gay allegedly concealed evidence of Mr. Hughes's movements."  Many of Mr. Dummar's allegations are based on comments made by Robert Deiro in Mr. Magnesen's book.

My review of The Investigation details some of the problems with Mr. Dummar's (and Mr. Magnesen's) position:

1. Mr. Magnesen presents two potential (and mutually exclusive) ways to put Mr. Hughes on the road where Mr. Dummar allegedly rescued him (I refer to this rescue, which supposedly took place in 1967, as the "'67 Incident").  If Mr. Hughes was picked up in the desert after fleeing the Cottontail Ranch, then he couldn't have been picked up after leaving the Mizpah Hotel.  Similarly, if Mr. Hughes was picked up in the desert after leaving the Mizpah Hotel, then he couldn't have been picked up after fleeing the Cottontail Ranch.

2. Mr. Deiro's comments also raise some questions -- for instance, Mr. Deiro says he only recently learned about the '67 Incident from an AP newspaper article.  More importantly, Mr. Deiro's comments about Mr. Hughes' departure from the Cottontail Ranch strike me as bizarre -- consider this passage from pages 237-238:

"[Mr. Deiro] explained he wasn't very concerned [about Mr. Hughes leaving the Ranch] because, if his memory is accurate, he was told that Hughes had left with someone.  He doesn't recall who it was.  He explained he was more concerned about the possible loss of his job.

Deiro took off in the Cessna as the sun was breaking in the east. He circled the area a few times gaining altitude, but he didn't see Hughes wandering in the desert.... As a good-bye, he buzzed the brothel while laughing to himself as he knew the noise would stir those inside.

Deiro didn't know what to think about Hughes disappearing, but he never heard a word about the incident.  It turned out to be the last time Hughes spoke with him or flew with him.  Deiro says he didn't think much about the cold shoulder because most everything he had done for Hughes was strange and out of the ordinary.  He felt, "No news was good news."

If you took your boss to a brothel (which I don't recommend!) in the middle of the desert and awoke to find him gone, wouldn't you do a little more follow-up?  And if you were told that your boss had left with someone, why would you bother flying over the desert to look for him?

3. Mr. Magnesen believes that, if he can prove the '67 Incident actually occurred, then the Mormon Will must be authentic.  I'm not sure the two events should be connected in this way.  If the '67 Incident didn't occur, then perhaps we can assume that the Mormon Will is a forgery, since Mr. Hughes would have had no other way of knowing Mr. Dummar.  But I don't know if the converse is true; that is, I think that you still have to prove that the Mormon Will is authentic even if you have already proved that the '67 Incident occurred.

According to Mr. Karp's article, Mr. Dummar is represented by Albuquerque estate planning attorney Stuart Stein, who hosted Mr. Dummar and Mr. Magnesen on his radio show in January.  The article ends by stating that, if Mr. Dummar is successful with his lawsuit, Mr. Magnesen will collect 10% of the court award.  That fact raises a significant question about Mr. Magnesen's motives in writing his book -- is he uncovering The Truth, or a moneymaking endeavor?

Coretta Scott King and Lost Wills

According to this article, Coretta Scott King's Will has been filed with the Fulton County Probate Court.  I assume that a probate will soon be opened for Mrs. King's estate.

One thing in particular caught my eye in the above article:

King amended her will twice — on Dec. 20, 1978, and Aug. 29, 1984. The second amendment, which named [her daughter] Yolanda executor and trustee, has been lost, according to an affidavit signed April 26 by attorney Tyrone Bridges. A photocopy was filed with the court.

Wills and codicils sometimes get lost -- that's just the nature of life.  And, while the loss of a Will always provides some headaches, it doesn't mean that the Will (or in this case, codicil) can't be admitted to probate as valid.  Illinois law specifically talks about presenting evidence to prove that a Will is valid -- that evidence usually comes in the form of affidavits from (or depositions of) witnesses to the Will's signing.  Of course, you also have to present evidence that the person who created the Will didn't destroy it.  Presumably Mr. Bridges' affidavit addresses this point. 

Rosa Parks Probate Dispute to Mediation

I've blogged about the Rosa Parks guardianship and probate litigation on a number of occasions, most recently here.    According to this story, the parties have agreed to mediation of the dispute -- that's good news.  Unfortunately, the mediator is retired Judge Adam Shakoor, who is one of Mrs. Parks' executors and is accused of acting inappropriately with respect to Mrs. Parks' affairs during her life.  One of the attorneys for Mrs. Parks' heirs says that he believes Judge Shakoor "will be fair" -- if that's the case, then why does this dispute even exist in the first place?

Kirby Puckett's Ashes

Baseball Hall of Famer Kirby Puckett died in March at the age of 45.  After Mr. Puckett's career in the majors reached an end, he found himself embroiled in controversy over allegations that he had sexually assaulted a woman.  His death has created a new controvery: who should receive his ashes?  This article has the details of the dispute between Mr. Puckett's estate and his fiancée.  (I blogged about a similar dispute last May.)

The question is whether Mr. Puckett's fiancée (Jodi Olson) should receive his ashes, or whether the ashes should be given to Mr. Puckett's children, who are the primary beneficiaries of his Will.  At the present time, this dispute hasn't made it to court -- the parties are trying to work out a settlement.  The mediator in me thinks that dividing Mr. Puckett's ashes makes a lot of sense, regardless of the strength -- or weakness -- of Ms. Olson's legal argument.

To try and deal with these types of disputes, Illinois recently adopted the Disposition of Remains Act, which I discussed here.  The Act sets up a priority system for who gets to decide on the disposition of a decedent's remains.