Docs filed in will contest over heiress’ $300M estate and ‘accountability of professionals’

As a September trial looms in a will contest over the $300 million estate of a copper heiress who died in 2011 at age 104, documents filed Wednesday in the Manhattan Surrogate’s Court case provide new details about the facts at issue.

On March 7, 2005, Huguette Clark executed a brief will that provided for her distant relatives, but not the hospital had already benefited from millions of dollars in gifts above and beyond the cost of her care, at some $1,200 per day, during the nearly 20 years she spent as a patient there, the New York Times (reg. req.) reports in a front-page article that also links readers to copies of the documents.

But after the chief executive of New York’s Beth Israel Medical Center visited her on March 18, 25, and 27, 2005, she executed a second will that cut out her family and gave the hospital $1 million, the newspaper says. It is the second will that is at issue in the court case.

The documents show that hospital officials worked for years to try to persuade Clark to be generous to Beth Israel. However, she was sharp and appreciative of the care and company she got at the hospital, its lawyer says.

“Having provided lifesaving and compassionate care to a person of Ms. Clark’s wealth, it would have been surprising if Beth Israel had not approached her for donations,” wrote the hospital’s attorney, Marvin Wexler, in a response earlier this year to the Manhattan public administrator.

The public administrator, which is the temporary administrator of Clark’s estate, is seeking the return of various gifts made by Clark, the newspaper notes.

“What this is about is not just a will contest,” said attorney John Morken, who is representing Clark’s distant relatives. “It’s about the accountability of professionals.”

See also: (June 2011): “Heiress Huguette Clark’s Will Leaves $500K to Her Lawyer” (Nov. 2011): “Relatives of Heiress Huguette Clark Accuse Lawyer and Accountant of ‘Plundering’ Her Fortune” (Dec. 2011): “NY Official Points Finger at Lawyer for Heiress, Calls $90M in Unpaid Gift Tax ‘Tip of the Iceberg’” (May 2012): “Staff of Reclusive Heiress Coerced Her Out of $44M in Gifts, Executor Says”

5th Circuit parses runny-egg rule, issues sunny-side-up decision for nursing home


Image from Shutterstock.

A Texas nursing home sizzling over severe penalties imposed after a state inspection found two residents had been served unpasteurized eggs that were inadequately cooked has presumably simmered down after the latest chapter in the runny-egg saga.

Reversing an administrative law judge and the U.S. Department of Health and Human Services Appeals Board, the New Orleans-based 5th U.S. Circuit Court of Appeals has determined that Elgin Nursing and Rehabilitation Center, in fact, did not violate an egg-cooking rule in a Medicare and Medicaid operations manual, Courthouse News reports .

At issue, explains Chief Judge Jerry Smith in an opinion earlier this month, is whether two provisions of the rule, one based on temperature and the other on the extent to which the egg has congealed, apply simultaneously to the same egg.

The appellate panel found the two provisions operated independently of each other. Hence, satisfying either the temperature prong or the ‘congealing’ prong of the runny-egg rule was sufficient, and the nursing home was out of the frying pan as far an the already-reduced $5,000 fine for noncompliance was concerned.

HHS “may not issue ambiguous interpretive documents and then interpret those in enforcement actions—we will not defer to that level of agency interpretation,” Smith wrote.

Appeals court cuts ‘unconscionable’ estate legal bill from $44M to perhaps $3M

Citing an “unconscionable” retainer agreement, a New York appeals court has reduced an estate’s legal bill from $44 million to what a lawyer for the winning side estimates will be a $3 million final tally.

It also is requiring three members of Graubard Miller to return $5 million in gifts they received 15 years ago from the firm’s then-client, Alice Lawrence, because they cannot prove the wealthy widow gave them the money willingly and knowingly, reports Reuters.

At issue in the appeal is a $44 million legal fee claimed by Graubard Miller under a retainer agreement signed by Alice Lawrence in 2005. The underlying representation concerned the estate of her husband, commercial real estate magnate Sylvan Lawrence, who died in 1981 leaving assets of some $1 billion.

Alice Lawrence, who was the main beneficiary, had battled with the executor of her husband’s estate over control of his holdings for more than 20 years after his death, represented by the Graubard firm since 1983. After being billed nearly $20 million by the law firm at hourly rates, she signed a revised retainer agreement in January 2005 that provided for a 40 percent contingency fee, in an effort to reduce her legal expenses. Within four months, the case settled for $111 million, and, when Lawrence balked at paying a $44 million fee, litigation resulted, the news agency recounts.

Siding with the estate of Alice Lawrence, which pursued the legal-fee battle after her death in 2008, the Appellate Division, First Department unanimously ruled on Thursday that she did not fully understand that 2005 agreement, which was “both procedurally and substantively unconscionable.” The evidence, the appellate panel said “shows that the widow believed that under the contingency arrangement, she would receive the ‘lion’s share’ of any recovery.”

The appeals court reinstated the earlier legal representation agreement between Alice Lawrence and the law firm, which provides for payment at hourly rates, Reuters reports. Attorney Daniel Kornstein, who represents the estate, estimated that Graubard’s legal bill, at hourly rates, including interest, could be as much as $3 million.

Attorney Mark Zauderer, who represents Graubard, called the amount due to his client “substantial” but declined to give a figure. The Graubard firm plans to appeal Thursday’s decision to the state’s highest court, the New York Court of Appeals.

In earlier milestones in the litigation, the Appellate Division previously held that the 2005 legal services contract was not unconscionable on its face, remanding the case for a factual determination.

A trial began in 2009 to determine whether the 2005 contingency-fee representation agreement between Alice Lawrence and the Graubard firm was valid, which the New York Law Journal reported on at the time.

In 2011, applying the 2005 legal services contract, then-Manhattan Surrogate Nora Anderson agreed with a referee that a reasonable contingency fee would be $15.8 million, rather than $44 million, Reuters reports.

70 is not so old, say state court judges challenging mandatory retirement rule


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Pennsylvania law mandates that state court judges retire when they are 70 years old, a rule which has been in existence since 1968. That’s discriminatory, say some jurists, who also object to the Pennsylvania Supreme Court taking control of their commonwealth court lawsuit challenging the rule.

Bucks County Judge Alan Rubenstein, a plaintiff born in 1946, plans to appeal the decision, according to, and he wants a special judge appointed. The law in question mandates that judges “shall be retired on the last day of the calendar year in which they attain the age of seventy years.”

Under the current law, Pennsylvania state court judges older than 70 can work as senior judges. The pay is $534 a day, according to the article, and does not include benefits. Comparatively, a Doylestown Common Pleas Court judge earns $171,271 a year, plus benefits.

Rubenstein’s case (PDF) is one of three regarding the retirement law, according to Legal Newsline, and the Pennsylvania Supreme Court believes that the cases have significant overlap. Also, a state house panel recently approved raising the retirement age to 75, Phillyburbs reports. Another bill, which would require voter approval, proposes abolishing mandatory retirement for judges.

The plaintiffs in Rubenstein’s case include judges and voters. The voters argue that they were deprived of plaintiff Rochelle Friedman’s service when she was forced to retire from the bench in 2008.

“Like race, national origin and gender, age is an immutable characteristic that bears no relationship to an individual’s capabilities, performance and ability to contribute to society,” the complaint states. It notes that eight senior judges serve on the state’s appellate court, and 100 are in common pleas court.

Louisiana law also mandates that judges retire by age 70, but there’s pending legislation there to throw it out. States seem to hold positions all across the board on the issue. Vermont puts the mandatory retirement age for judges at 90, according to, while there is no age limit for judges in other states, including California, and Delaware.

Also see:

Pew’s Stateline: “Should Judges Be Forced To Retire?” “Six Pennsylvania Judges Challenge Constitutionality of Mandated Retirement at Age 70”

Federal judge jails estate lawyer as flight risk, nixes ‘bizarre’ effort to revoke plea

A Rhode Island estate planning lawyer’s effort to revoke his guilty plea in a controversial $30 million elder insurance fraud case was a “bizarre” and unjustified “hatchet job” on Joseph Caramadre’s former counsel, a federal judge said Monday.

U.S. District Judge William Smith not only nixed Caramadre’s bid for a new trial but agreed with prosecutors in the Providence case that he should immediately be jailed as a flight risk, pending his sentencing in July, report the Associated Press and the Providence Journal.

“It was amazing to watch a defendant perjure himself saying he perjured himself the first time,” the judge said.

Caramadre and an employee were charged with defrauding dying individuals into allowing insurance investments to be made in their names. They pleaded guilty to wire fraud and conspiracy shortly after their trial began in November.

See also: “Trial Begins for Estate Planning Lawyer Who Bought Annuities for the Dying; Was His Idea Legal?” “Lawyer Accused of Misusing IDs of Terminally Ill in $30M Investment Scheme Takes Plea” “Estate lawyer asks to revoke plea, now wants trial in $30M elder insurance fraud case”

The Forgotten Demographic: ABA Wants an International Convention on Elder Rights


Jeffrey Snell: Some international protection for older people exists, but more is needed. Photo by Michael McElroy.

The world’s elderly population may be the next frontier in efforts to create an international system for protecting human rights. That process began in the immediate aftermath of World War II, with the creation of the United Nations in 1945.

In 1948, the U.N. General Assembly adopted the Universal Declaration of Human Rights. While the declaration does not have the legal force of a treaty, it has come to be widely viewed as a fundamental statement of human rights and the basis for agreements that have sought to enforce human rights through “hard law” because ratifying nations agree to be bound by their terms. Those agreements include the International Covenant on Civil and Political Rights (ratified by the United States) and the International Covenant on Economic, Social and Cultural Rights (not ratified by the U.S.).

Since the covenants entered into force in 1976, they have been followed by other agreements focusing on the rights of specific groups, including the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women. (The U.S. government has signed all three but not ratified any of them.)

Only within the past few years has attention begun to focus on efforts to bring the elderly within the protections of international human rights agreements. Past U.N. efforts in the area, most notably the Madrid International Plan of Action on Aging, adopted in 2002 by 159 nations, have been “soft law”—primarily aspirational in nature. But more recently, momentum has been building to protect the rights of older people through hard law, such as a convention similar to those relating to children, women and people with disabilities. In December 2010, the U.N. General Assembly established an open-ended working group on elder rights.

The ABA’s policymaking House of Delegates expressed its support for those efforts during the association’s 2011 annual meeting in August, when it approved a resolution (PDF) sponsored by the Commission on Law and Aging that urges the U.S. Department of State and the U.N. to support efforts “to strengthen protection of the rights of older persons, including the efforts and consultations toward an international and regional human rights instrument on the rights of older persons.”

“Older people experience discrimination and the violation of their rights at family, community and institutional levels,” says Jeffrey J. Snell, an attorney in Sagamore Hills, Ohio, who chairs the Commission on Law and Aging. They “face more barriers as they become more dependent upon others. This means older persons are often more susceptible to neglect and abuse. An international convention is needed to ensure that older persons are given the respect and dignity that we all deserve.”


While some have argued that the rights of senior citizens are implicitly protected—along with the rights of everyone else—in existing international human rights documents, Snell and others argue that something more is needed, even though the U.N. has issued at least 17 documents on aging since 1948.

“It comes as a surprise to many that there is no international convention on the rights of older persons,” Snell says. “An international convention will help ensure a standard … throughout the world. The U.N. has been instrumental at bringing about this needed change, and the ABA needs to be there and be represented.”

The commission’s report supporting its resolution to the House notes that an aging population is a worldwide phenomenon. During the first half of the 21st century, the report states, people over age 60 will increase from 10 percent to 20 percent of the world’s population—from about 600 million people to almost 2 billion.

In the U.S., the baby boom generation is entering its retirement years. Debilitating health issues like Alzheimer’s disease are becoming more common, and many older people are victimized by financial exploitation, says Peter G. Wacht, executive director of the National Academy of Elder Law Attorneys in Vienna, Va. Meanwhile, the future of government programs that help meet older people’s needs, such as Medicare and Social Security, is uncertain, he says.

The Elder Justice Act, passed by Congress in 2010 as part of the Patient Protection and Affordable Care Act, represents the first attempt to address issues of elder abuse, neglect and exploitation through federal law, says Edwin M. Boyer, president of the NAELA and a partner at the Sarasota, Fla., firm of Boyer Jackson.

Boyer represents an older Florida woman whose grandson moved down from Vermont, ostensibly to care for her so she wouldn’t have to live in a nursing home. He then took care of himself while draining $100,000 from her bank account to buy a Porsche and fancy dinners for his girlfriend, among other goodies.

“She wasn’t able to make personal and financial decisions on her own, and he took advantage of that,” says Boyer. Now “she is penniless, and [her grandson] is in jail. She’s destitute. She’s having a hard time finding a place to live.”

Gut-wrenching as such stories are, however, they’re nothing compared to what the elderly face in parts of the developing world, Wacht says. “It’s nowhere near what older people face in sub-Saharan Africa or some Asian countries,” he says. “That’s one of the challenges when you’re trying to put an international convention in place.”


Given the continuing growth of the world’s population of older people, “these areas of jeopardy will become that much more magnifying,” says Charles P. Sabatino, director of the ABA Commission on Law and Aging and a past president of the NAELA.

“Now is the time to deal with that.” The Madrid plan, Sabatino says, “has no enforceability. It’s an academic exercise in place to see whether it’s making a difference, not a real human rights mechanism.”

Wacht agrees that the Madrid document doesn’t go far enough. “It’s all well and good to put forward a philosophy,” he says, “but it doesn’t mean a whole lot unless you put forward a way for these countries to get there—and measure success.

“The Madrid plan does a good job of reaffirming commitment to eliminating age discrimination and neglect,” Wacht says, “but it doesn’t necessarily say: ‘Here are the steps you can take to make this happen.’ ”

Even though the U.S. government has refrained from ratifying most recent human rights conventions, Sabatino and others say they still influence U.S. law. “Their influence is subtle, but important,” he says. “They seep into American law and culture.”

The Convention on the Rights of the Child, for instance, has received judicial notice in a number of cases decided by the courts, including the U.S. Supreme Court’s 2005 ruling in Roper v. Simmons that struck down the death penalty for defendants who committed capital crimes when they were under the age of 18.

Sabatino says the ABA plans to seek involvement with the U.N. working group on elder rights. “The ABA brings a lot of skills to the table that other groups don’t necessarily have,” he says. “There’s a great deal of expertise, particularly in the International Law Section and the Center for Human Rights, on the actual mechanics and approach to drafting international instruments, if this moves ahead to that point.”

It’s a worthwhile effort, Boyer says, “but where it gets interesting is specifics. Hopefully, we’ll go to the next step and have something actually proposed that could be adopted by nations and fashioned into legislation, rather than just a statement of principles.”

Staff of Reclusive Heiress Coerced Her Out of $44M in Gifts, Executor Says


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Nurses, doctors, a hospital, a lawyer and an accountant for reclusive heiress Huguette Clark coerced or influenced her out of more than $44 million in gifts, the executor of her estate said in a court filing Tuesday.

The executor, who doesn’t deny that Clark authorized nearly all of those gifts, is asking the court to order all of the money to be repaid,’s Open Channel blog reports.

The petition is an attempt to return to the estate millions of dollars that the executor claims was bled away from the heiress by fraud or undue influence. Two other petitions were expected to be filed by the executor Wednesday, one accusing her lawyer and one accusing her accountant of malpractice and breach of fidicuciary duty.

The accusations were vigorously denied by Clark’s attorney, whose representative said that any attempt to suggest that the gifts were not freely given is to “denigrate the person who gave these gifts, as well as the recipients who cared for her with their love.”

Clark, the heiress to a family fortune valued at $400 million, died last May in New York at age 104. She had no close relatives, and most of her money went to an art charity.

According to the executor’s filing, Clark gave her longtime nurse and her family $31 million in gifts, including jewelry, dolls, a Stradivarius violin and money to buy five homes.

Another $6.3 million was given to Beth Israel Medical Center, which allowed Clark to live in the hospital for much of the last two decades of her life even though she was quite healthy.

Clark’s two doctors and their families received gifts totaling $3.1 million.

Her accountant got $375,000. Her lawyer received $60,000, in addition to the $1.85 million he got after the Sept. 11, 2001, terror attacks for a security system for his daughter’s Israeli community on the West Bank.

Clark’s relatives alleged in a court filing last year that Clark’s lawyer and accountant mishandled and misappropriated her assets in the 15 years prior to her death.

And New York’s public administrator accused the pair last December of failing to pay $90 million Clark owed in federal gift taxes and penalties.

ABA’s Law and Aging Commission Gets an Award for Clear Writing


Click here for brochure (PDF)

The ABA’s Commission on Law and Aging has explained how to give someone a health-care power of attorney, and it’s done so in plain language. Its brochure on the process is so clear, in fact, that the commission won a national award.

The Center for Plain Language gave the commission a “ClearMark Award” for clear and concise writing this week in a new category called “Original or New Document, Legal.” According to the judges, the brochure (PDF) discusses complex concepts without being overwhelming, and the writing is not intimidating. The judges also noted strong organization and helpful graphics. Attached to the brochure is a document that can be used to designate a health-care agent.

Here is an example of the writing:

“Your health care agent—or agent, for short—will have the authority to make life and death decisions for you according to your wishes. Make sure that the person you pick is willing to be your agent.

“When you ask someone to be your health care agent, you should think about several things. For example, usually it is best to name one person as your first choice. Then choose at least one back-up agent, in case the first person is not available when needed.”

The brochure then lists categories and types of people who should not be health care agents, and those who should. “Choose someone who can be a strong advocate for you if a doctor or institution is unresponsive,” the brochure advises.

Elon Law School to Open Elder Law Clinic

Elon University School of Law announced this week that it plans to open a student-staffed Elder Law Clinic this fall and will begin reviewing cases Wednesday.

The clinic will provide free legal counsel to low and moderate-income area residents aged 60 and over, according to a post on the North Carolina school’s website.

“The clinic will provide excellent educational opportunities for our law students by exposing them to a broad range of law and client circumstances,” Associate Professor of Law Margaret Kantlehner, who will direct the clinic, is quoted saying.

The clinic, which will operate under faculty supervision through the school’s Humanitarian Immigration Law Clinic and Wills Drafting Clinic, expects largely to address civil issues such as power of attorney, end-of-life planning, contracts, consumer issues, benefits, housing and grandparent rights matters.

Behind Bars: Elderly Prison Population Expected to Triple by 2030


In 1981, there were 8,853 state and federal prisoners age 55 or older.

Today that number stands at 124,900.

By 2030, experts predict the number of prisoners age 55 or older will be more than 400,000, which will be more than one-third of the prison population in the U.S. The elderly prison population is expected to increase by 4,400% over this 49-year time span.

Source: At America’s Expense: The Mass Incarceration of the Elderly. ACLU, June 2012.

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