James Brown died nearly eight years ago at the age of 73. He left an estate estimated to be worth anywhere from $5 million to over $100 million that’s been at the center of heated litigation ever since — in spite of the carefully crafted estate plan he put in place prior to his death. As reported by the NYT in Downbeat Legacy for James Brown, Godfather of Soul: A Will in Dispute:
James Brown’s will was meant to be everything his life was not. . . . The manic energy that fueled a career of funk classics, pyrotechnic dancing and relentless touring as the Godfather of Soul also contributed to a trail of broken marriages, estranged children, tax liens and brushes with the law over drugs, weapons and domestic violence.
By comparison, his will was as orderly as a book of prayer. . . . The bulk of his estate, worth millions of dollars — perhaps tens of millions — was to go to a trust to provide scholarships to needy children here in his native state and in Georgia, where he grew up. But nearly eight years after his death, at 73, on Dec. 25, 2006, the I Feel Good Trust has not distributed a penny to its intended recipients.
One of the many lessons this case has to offer is that no matter how crystal clear a person’s testamentary intent may be, or carefully drafted his estate-planning documents might be, it’s all for naught if they’re not properly enforced in the event of a dispute. Which means shaping the dispute-resolution process should always be a planning priority. And how do we do that? Step one: recognize that our underfunded and overworked probate courts are susceptible to being hijacked by litigants having little interest in actually carrying out a testator’s last wishes, which is what’s apparently happened in the Brown case. Again as reported by the NYT:
In 2008, Henry McMaster, then the South Carolina attorney general, intervened. He said that Mr. Brown’s charitable goals had been endangered by the court challenges filed by his family. . . . Under a proposed settlement with the family, he redirected a quarter of the estate’s assets to Mr. Brown’s children and grandchildren and a quarter to the singer Tommie Rae Hynie, whom Mr. Brown married in 2001 but had left out of the will.
[B]ut last year the South Carolina Supreme Court threw out the attorney general’s settlement. It described the state’s entry into administration of the estate as “an unprecedented misdirection” of the attorney general’s authority that had led to “the total dismemberment of Brown’s carefully crafted estate plan and its resurrection in a form that grossly distorts his intent.” Based on what it had reviewed, the court said that there was no evidence that Mr. Brown had been unduly influenced or that the will was anything but a true expression of his intent. . . .
“It’s pernicious,” said Virginia Meeks Shuman, who teaches estate law at the Charleston School of Law. “This idea that you can just completely disregard the testator’s wishes is fine if we are going to live in a country where people don’t have a right to say what happens with their assets when they die.”
By the way, this kind of wholesale post-litigation rewrite of a person’s estate plan isn’t limited to celebrities or South Carolina’s courts. It’s a risk anyone caught up in the uncertainties inherent to estate litigation has to deal with. For example, according to most observers the same thing happened in a 1980s will contest litigated in New York City’s probate court system involving the Johnson & Johnson pharmaceutical fortune of J. Seward Johnson, Sr., who died at age eighty-seven in 1983. As famed NYC attorney William D. Zabel wrote here:
[T]he parties decided to settle. The Will was, to put it charitably, totally rewritten by the contestants. The result: any resemblance to Seward Johnson’s actual last Will seemed purely coincidental. Mr. Johnson should be a veritable whirling dervish in his grave, because all his expressed intentions were flouted.
One of the most important elements of any estate plan has to be litigation prediction and prevention. But as the Brown case demonstrates, while this kind of focus may be a necessary precondition to good planning, it’s not sufficient all by itself. Inheritance disputes are not rare — they impact a significant percentage of all estates (some estimates are as high as 70%). Once litigation breaks out, it doesn’t matter what the documents say if the dispute-resolution process is flawed. Which means we aren’t doing our jobs if we don’t also plan for this contingency. How do we do that?
I’m a big believer in privatizing the dispute-resolution process whenever possible (see here, here). Battle-scarred veterans of actual courtroom encounters usually “get” this idea immediately; planners (who rarely step into a court room) have more trouble with it. Regardless, one way or another these disputes will get resolved. As those caught up on the Brown estate litigation are learning, planning for that eventuality requires a focus on process, not just prevention.