Bullivant Houser Bailey PC: In a Cold Sweat: Last Wishes Must be Considered in Estate Planning

By Darin Christensen

The Godfather of Soul, James Brown, lives on in music and culture, but a recent South Carolina Supreme Court ruling is adding estate planning to the legend's history. The Court overturned a settlement reached by the state attorney general, Brown's children, and his "wife." In its decision, the court also severely criticized the attorney general (the AG) for an unprecedented extension of his power.

Brown's will gave all his assets other than personal and household effects to an irrevocable trust. The irrevocable trust set aside $2 million for the education of his grandchildren and gave all remaining assets (estimated at $5 to $100 million) to the James Brown "I Feel Good" Trust, a charitable trust that was to help educate financially needy children and young adults. His will clearly indicated that he had already provided for his children and had no desire to provide more for them or for any spouse.

After his death, Brown's adult children and "wife" challenged the will and asserted that it should be set aside because of purported undue influence by the drafting lawyer and that the trustees of the irrevocable trust should be removed. The state attorney general intervened and, without doing any substantive investigation, brokered a settlement.

Pursuant to the settlement, more than half of the assets that were to go to the I Feel Good trust instead went to Brown's "wife" and children. The AG claimed and received the right to appoint and remove the trustee at his will. The trial court approved the settlement agreement.

The court held that there was no evidence of undue influence and suggested that the "wife" and children did not even have a good faith basis for their challenge. Because the settlement agreement departed substantially from Brown's intent to use most of his estate for charity, the court invalidated the settlement and reinstated the gift to the James Brown "I Feel Good" Trust. The court also removed the serving trustees because of what appeared to be excessive trustees' fees and poor decisions and rebuked the AG for exceeding his authority and not looking into the validity of the claims for undue influence.

Although there are many interesting aspects of this case, there are several that are particularly important for estate planning. First, it is important to clearly state your intent when disinheriting heirs. Second, proper execution of documents is essential. Third, premarital agreements are helpful. Finally, it is important to select honest trustees and personal representatives.

It is interesting to note that Brown held a marriage ceremony in 2001 with his "wife" and that she signed a premarital agreement in which she agreed that she was not entitled to any part of his estate. Brown sued to annul the marriage in 2004 because she was still married to someone else. She then sued to annul the other marriage. As part of the resolution of Brown's case, she agreed to "forever waive any claim of a common law marriage to [Brown] both now and in the future."

Bullivant Houser Bailey PC is an Oregon Professional Corporation. The materials found on this site prepared by Bullivant attorneys are for general informational purposes only and are not for the purpose of providing legal advice or legal opinions on specific facts or circumstances. Internet subscribers and online readers should not act upon this information without seeking professional advice.  

For more information about LexisNexis products and solutions connect with us through our corporate site.