The Manhattan district attorney’s office’s elder abuse unit is prosecuting Anthony Marshall of exerting undue influence upon his mother, Brooke Astor, when she was diminished by Alzheimer’s disease, to persuade her to sign a codicil to her 2002 will that made Marshall the outright heir of her residuary estate instead of having it pass ultimately to charities.  Marshall is the only son of Brooke Astor, a grande dame of New York society who died in August 2005 at 105 leaving an estate valued at $132 million in addition to a $60 million trust.

This is a will contest, pure and simple. Unfortunately, it’s being litigated as a criminal prosecution. 

As reported in Brooke Astor’s son Anthony Marshall goes on trial for stealing from socialite mom, Marshall – who is 84 – is effectively looking at spending the rest of his life behind bars if he loses this trial:

Marshall faces up to 25 years in prison, if convicted. He and Morrissey have pleaded not guilty. Prosecutors filed an 18-count indictment against Marshall . . . three months after Astor died on Aug. 13, 2007.

Marshall stole artwork from his mom, gave himself a $1 million raise for acting as her financial adviser and spent her cash to buy a 55-foot yacht and pay the captain’s $52,000 annual salary, the indictment charged.

Lesson learned?

As our population ages, I suspect more and more local prosecutors will feel compelled to prosecute what are essentially inheritance disputes as criminal matters. Whether you think this is good or bad public policy is almost beside the point; it’s a fact of life we’ll have to deal with. Which means probate litigators will need to start teaming up with criminal defense attorneys much more frequently, advise their clients to “plead the 5th” at the first hint of trouble [click here], and consider what steps they as lawyers need to take to avoid becoming prosecution targets themselves [click here].