On October 8, 2009, watchers of courtroom drama everywhere reeled at the news that Anthony Marshall, son of Brooke Astor, had been convicted of one count of grand larceny in connection with the plundering of Mrs. Astor’s $198-million-dollar estate. Attorney Francis X. Morrisey, Jr., Mrs. Astor’s estate planning attorney, was convicted of one count of forgery with regard to a codicil that Morrisey and Marshall claimed had been signed by Mrs. Astor.
Despite the public perception, the most surprising thing about this trial was not that Mr. Marshall was convicted, but that charges were brought against him at all. The allegations against Mr. Marshall––that he used his mother’s Alzheimer’s disease and dementia to plunder her assets and force her into executing a will and codicils leaving her entire estate to Mr. Marshall––are the most common claims asserted in estate litigation. Unfortunately for most victims of estate theft and abuse, the criminal justice system has little to no interest in prosecuting even the most obvious criminal actors, and the only recourse of common victims is to personally fund litigation aimed at reclaiming the assets.
The annual financial loss by victims of elder financial abuse is estimated to be at least $2.6 billion dollars according to a 2009 study on elder financial abuse and prevention conducted by the MetLife Mature Market Institute. The crime is both underreported, because the victims may be unaware that a crime has occurred or are unwilling to enlist the help of law enforcement, and under-prosecuted because law enforcement officials have been reluctant to commit resources to the prosecution of these crimes.
For would-be estate beneficiaries (in Mrs. Astor’s case, the charities she intended to receive the vast majority of her $60 million estate) civil litigation is often the only recourse for recovering assets stolen by, or gifted to an unscrupulous caregiver. In such cases, the victims heirs will attempt to reverse the transfer by claiming that the victim was either mentally incapable of understanding his actions when he made the gift, was unduly influenced to make the gift, or both.
Even where a beneficiary successfully recovers assets through civil litigation he often feels that justice has not been served, as the elder abuser is only subject to monetary consequences. In addition, the beneficiary has been required to fund justice on his own, without the investigative resources of the police and prosecutor and, as a result, he has suffered considerably more stress, mental anguish, and economic loss in the process than should be his due.
In the eighteen months following the Astor verdict, there has been little progress in this area of the law. Although Congress passed The Elder Justice Act, aimed in part at providing funds to support and prosecute elder abuse and exploitation that act remains unfunded and ineffectual. Meanwhile, although 30% of all reported elderly abuse cases involve financial abuse, few of these are investigated and only a handful criminally prosecuted leaving civil litigation as the only recovery option for the vast majority of victims and beneficiaries.
