One of my ABA friends sent this Boston Globe article to me by email. I thought it was worth sharing it with this comment: Family comes first in estate planning. Where there is legitimate gripes against families, that's where charities get it ALL. Litigation by charities against family members is distasteful and adverse to charitable marketing, and leaves estate planners with a sense of mistrust of the charities. Moreover, the bad publicity also makes people NOT want to leave assets to them. After all, you can buy a lot more with honey, than you can by litigation.
"Charities lose court fight for $8m estate Late stockbroker's will bequeathed his fortune to couple
By Sacha Pfeiffer
Globe Staff / February 27, 2008
Five weeks before his death, after a yearlong battle with cancer that
left him deeply depressed, 85-year-old Leonard R. Brener made a
startling decision.
Instead of bequeathing his $8 million estate to four local charities, he
changed his will to give the entire amount to his niece and her husband.
It was this couple, he explained, who had cared for him in his dying
days. Brener, a former Boston police lieutenant who later become a
wealthy stockbroker, left no heirs. He said the money was his thanks to
the Rosens for their love and assistance.
The change of heart stunned the four nonprofits that had previously been
the stated beneficiaries of Brener's estate, spurring them to try to
have his will overturned. And this week, after a legal fight lasting
more than five years, the state Appeals Court rejected their effort,
concluding Brener had been mentally competent and his decision to leave
his money to Lois and Herbert Rosen, who are in their late 60s, should
stand.
"In the final stage they functioned as his closest family," Judge
Mitchell J. Sikora Jr. wrote of the Rosens. "They comforted him through
the bleakness of terminal illness. His gratitude would be natural."
The Perkins School for the Blind in Watertown, Beth Israel Deaconess
Medical Center in Boston, and Carroll Center for the Blind in Newton
said they do not yet know whether they will request further appellate
review by the Supreme Judicial Court. The fourth plaintiff, the
Maimonides School in Brookline, a Jewish day school, did not return a
call.
Beth Israel spokeswoman Judy Glasser said the hospital joined the
lawsuit "because we felt at the time that we were acting on the
intentions of the gentleman."
Perkins president Steven M. Rothstein said the school's board had not
yet reviewed the decision. But, he added, "We felt it was clear that
[Brener] has expressed support for Perkins and the other nonprofit
organizations and that he wanted to make a lasting impact by supporting
our work."
And Rachel Rosenbaum, the president of Carroll, said she was "very
disappointed" in the decision and described Brener's changed will as
"contrary to everything he had done in his lifetime while he was alert
and healthy."
She reiterated the plaintiffs' argument that Brener's revised will was
"unnatural" because it would trigger significant estate taxes, which he
had previously said he wanted to avoid. She also said Brener visited the
school unexpectedly several years ago to make a $5,000 gift and told her
then that, "My relatives are very opposed to me giving away my money to
charity, but I made the money and I'll do what I want with it."
The Rosens, who live in Sudbury and were present when Brener died on
Dec. 8, 2001, did not return a call. But their Boston lawyer, C. Peter
R. Gossels, described them as "wonderful people, both of whom work, and
people who are modest and generous and public-spirited." "They are
very, very nice people and this has been an enormous strain on them,"
Gossels said. "They had no idea how much money he had, and they knew
nothing about his private finances." Gossels also noted that the case,
which began in November 2002, has cost "an enormous amount of money" for
all the parties involved.
Rosenbaum said litigation costs for Carroll were under $100,000 but
"well over that" for the other plaintiffs, because their legal bills
were calculated based on the percentage of the estate they would have
received. Maimonides, Perkins, and Beth Israel each had been designated
to receive 30 percent of Brener's estate before he changed his will, and
Carroll had been designated to receive 10 percent.
Judge Edward F. Donnelly Jr. of Middlesex Probate and Family Court,
where the lawsuit originally was filed, also ruled against the
plaintiffs, prompting them to appeal.
Brener, who lived in Newton, never married or had children. In early
2001, he was diagnosed with esophageal cancer and began to feel hopeless
and suicidal.
Following his diagnosis, the Rosens - with whom Brener had maintained a
close relationship for many years - began to drive him to doctor
appointments, to restaurants, to visits with his friends and former
clients, and to their home on Cape Cod. Lois Rosen had known Brener her
entire life, her husband had used him as his stockbroker since 1969, and
Brener frequently spent holidays at their home.
As his health declined, they began to monitor his care, once driving him
to the emergency room in the middle of the night when he was having
trouble swallowing.
In October 2001, about a week after Brener suffered what seemed to be a
stroke, he told an executor of his estate that he had given Maimonides
"enough" and wanted the rest of his estate to go to the Rosens "in
appreciation of all of the attention and assistance that they had given
him during his illness." At the same time, Brener added to his will a
$10,000 gift to one of his nephews and a gift to an office friend.
In their lawsuit, the plaintiffs presented medical opinions by two
doctors who said Brener had lacked the mental capacity to change his
will. But one of the doctors never met Brener. The other, Bernard
Kosowsky, chief of cardiology at St. Elizabeth's Hospital, had been
chairman of the Maimonides board of trustees for the previous 15 years.
Another one of Brener's executors, David Shaw, later testified that
Brener knew "what he was doing" and "didn't show any confusion" when he
made the change.
The court also noted the Rosens were not present when Brener changed his
will, and that Brener had instructed Lois Rosen to leave him alone for a
business discussion with one of his executors the day before he made the
final change."
The moral of the story is, family comes first, especially family who takes care of you in your dying days, as opposed to charities.
Mina N. Sirkin is a Board Certified Specialist attorney in Estate Planning, Probate and Trust law by the Board of Legal Specialization of the State Bar of California. Ms. Sirkin practices in Los Angeles, California. [email protected]. http//www.SirkinLaw.com.
