Photo by Condé Nast Archive/Corbis

This is the first in an ongoing series of stories about the trial of Brooke Astor’s son, Anthony Marshall, and its implications for 50-plus America.

What was the mental condition of Manhattan socialite and philanthropist Brooke Astor when she changed her will in the final years of her life? How jurors decide this question will likely determine the outcome of her son’s trial on charges that he stole millions of dollars from her estate, legal experts say.

The trial’s lead prosecutor Elizabeth Loewy argued today that Anthony Marshall, 84, deliberately took advantage of his mother’s deteriorating mental health when he orchestrated a series of changes to her will that defrauded Astor of her estate, worth an estimated $132 million.
 
“What is this case about?” she asked the jury. “It’s about greed.”
 
Marshall’s lawyers, who are scheduled to open tomorrow, are expected to insist that Astor, though suffering from Alzheimer’s disease, understood what she was doing, legal experts say. She died in 2007 at age 105.

Before the changes to her will began in December 2003, prosecutors have said, Astor wanted her estate to be put in a trust for charity; Marshall, a son from the first of his mother’s three marriages, was to get 7 percent of the value of that trust every year for the rest of his life. Instead, modifications to the will left the estate to Marshall outright.

Marshall was later charged with conspiracy and scheming to defraud his mother. His codefendant, Francis X. Morrissey Jr., 66, a lawyer who helped with Astor’s estate planning, is also charged with stealing millions of dollars from the socialite and forging her signature on one of the changes to her will.

In addition, Marshall faces a charge of first-degree grand larceny for selling one of his mother’s paintings for $10 million and pocketing $2 million in commission, without her consent. And he’s accused of using his mother’s money to raise his salary for managing her finances, to pay the salary of the captain of his yacht, to pay the wages of a worker at his former theater company, and to pay expenses on a retreat in Maine that his mother had given him and no longer used.

A saga of greed and betrayal is expected to play out in State Supreme Court in Manhattan over the next two months as witnesses recount the final years of Astor’s life, when Marshall had power of attorney over his mother’s affairs. That power was taken away from him by a judge in 2006 after Marshall’s son Philip told authorities that Astor was a victim of financial abuse, mistreatment and neglect at the hands of his father.

The central question of the case—whether the financial transactions that depleted Astor’s estate were done with her consent and understanding—lies at the heart of many financial elder abuse cases involving a victim with dementia. Legally, a person with a diminished mental state may still have the capacity to consent to changes to a will, says Dana Fitzsimons Jr., a lawyer in Richmond, Va., who specializes in cases in which wills are contested.

“So long as you know your family members and have intent to give away your property, that’s a minimal standard of legal competence to execute a will,” Fitzsimons says. “In some states, you can have a conservator or guardian appointed [to manage the estate] due to incapacity and still have the ability and capacity to change your will.”

That may play to Marshall’s advantage as his lawyers seek to refute accusations that he took advantage of his mother’s diminished mental state for his gain. Even so, the burden will be on Marshall to prove that his mother hadn’t slipped into extreme dementia when changes to her will favoring him, and other transactions, were done, says Karen Boxx, chair of the American Bar Association’s Elder Law group and a professor at the University of Washington law school in Seattle.

“Capacity is a shifting thing. People can have good days or bad days,” Boxx says. “Even if a doctor gives an opinion about her capacity in general, that weighs on whether she had the capacity to understand what she was doing in giving her son money, but it’s not conclusive.”

Look for Marshall’s defense to be that “mom wanted me to have it,” Boxx says. “This is a common defense for people who got caught with their hand in the cookie jar.”

Boxx says adult children like Marshall—who reportedly felt hurt, angry and betrayed by his mother—often believe they’re entitled to assets, or to an inheritance, whether or not it was bequeathed to them. (In varying published accounts after her death, Astor was portrayed to be alternately embarrassed, bothered or disappointed by Marshall over the years.)

Such adult children, says Boxx, often feel as though “ ‘I was screwed, she was a bad mother, so I’m going to get something out of it.’ That kind of thinking never goes away, no matter what the child’s age.”

Catherine Seal, a Colorado attorney with expertise in guardianship issues, says the Astor case is similar to cases involving financial exploitation in which she’s argued on behalf of the older victim. They’re horrifying and heartbreaking, she says.

“I’m often looking at a transaction from three or four years ago and trying to convince the court that there is no way the [victim] could’ve discerned what the consequences of the agreement were, like cosigning on a car loan with a grandchild who has extremely poor credit and knowing they could end up paying the loan,” she says.

Seal also says it’s not uncommon for family members who are engaged in financial exploitation to skimp on the care of their elders so that the estate—the relatives’ future inheritance—remains intact. In Astor’s case, Seal cited published accounts that Marshall kept his mother from the people and properties she adored, that Astor lived in tattered and dirty nightgowns and that her beloved dogs were shut away to mess on the floor—not walked and not always with her.

“Brooke Astor’s son made decisions that she might not have wanted,” says Seal. “She wasn’t living where she wanted. She didn’t have the things she was accustomed to.

“When you see it,” she says of such cases, “it’s just horrible.”

Carole Fleck is a senior editor at the AARP Bulletin.