Estate Planning Lessons from the Redstone Saga?

We’ve previously blogged about the happenings in the case and life of Sumner Redstone. Although one lawsuit was dismissed, it doesn’t appear that is the end of the matter. The New York Times ran an article on June 2, 2016, In Sumner Redstone Affair, His Decline Upends Estate Planning. Although the focus of the story is Mr. Redstone’s situation, the story notes that this happens perhaps more than we think.

As Americans live longer and more families are forced to cope with common late-in-life issues like dementia, the problem is getting worse. “It’s a huge issue nationally as the elderly population grows and their minds start to falter,” [one attorney interviewed for the story] said. “I’ve seen charities coming after people for multiple gifts: Sometimes these donors don’t remember that they already gave the previous week. Romantic partners, caregivers who take advantage of the elderly — we’re seeing it all.”

Elderly people may be especially susceptible to the influence of people who happen to be around them during their waning days.

Professor David English (full disclosure, co-author and friend) “a professor of trusts and estates at the University of Missouri School of Law and former chairman of the American Bar Association’s commission on law and aging” said

This is an issue for lots of people of even modest wealth… [and] the most common approach is the creation of a trust, either revocable (which means it can later be changed) or irrevocable, that anticipates such a problem and defines what the creator of the trust means by incapacity. This could be a much less rigorous standard than is typically applied by courts… The document should define the meaning of incapacity and, more importantly, indicate who determines incapacity….

The article goes on to examine the importance of trusts that are carefully well-drafted to address issues such as those faced in this case.  However, “sometimes no amount of legal advice can save people from an unwillingness to face their own mortality and cede control while still in full control of their faculties.”