‘Dead Giveaway’ Isn’t Always Easy--Unless You’re a Mutt Named Musketeer : Where There’s a Will, There’s a Wealth of Oddities, Scraps and Cautions

You can’t take it with you, conventional wisdom has it, although some Egyptian Pharaohs and a lot of others have tried. That’s why we have wills: to pass one generation’s property and possessions on to the next, simply and in an orderly fashion.

That doesn’t always work so well, either.

Greed, avarice, duplicity, technicalities, legal shenanigans and tax laws have sometimes spectacularly overruled this simple transition, spawning family feuds and million-dollar court fights.

Among the more dramatic cases recently was the battle over the estate of Johnson & Johnson heir J. Seward Johnson. It provided Page 1 news for 16 weeks as the Johnson children tried to break the will that left nearly all his $500-million estate to Barbara (Bascia) Johnson, 49, a Polish emigre, former chambermaid and Johnson’s third wife.

In the end, the case was settled out of court. The children agreed to share about $52 million; the bulk of the estate went to Barbara Johnson, whom the children had accused of exerting undue pressure on her husband, who died at 87.

A fight over Howard Hughes’ estate, estimated at $2 billion, went on for a decade after his death. No legitimate will was ever found.

In November, 1981, a surrogate judge declared an aunt and 21 cousins as the rightful heirs, despite claims by nearly 500 contenders, some equipped with fake wills. A movie, “Melvin and Howard,” was based on the scramble for the Hughes estate.

When Eleanor Ritchey, an oil company heiress, died in Fort Lauderdale, Fla., in 1968, she guaranteed press coverage for the life of a band of 150 misfit mutts she made millionaires in her will. It decreed that the dogs be cared for until their deaths, after which the money would go to the School of Veterinary Science at Auburn University. After a 16-year wait, Auburn got $12 million.

The last pooch to die--in 1984 --was Musketeer. He didn’t want to go gentle into that good night; he didn’t want to go at all. Nor did his caretaker want him to go. He lost his $18,000-a-year job the day that Musketeer finally succumbed to old age at between 18 and 20--well over 100 years in human terms.

For some years before, press accounts noted that Musketeer hobbled when he walked, fell over when he sneezed and scarcely bothered to open a rheumy eye for a visitor to his $26,000 compound, complete with an electronic bug killer lest flies or fleas call on the nation’s richest dog. Life was sustained by an often hand-fed diet of dog food, hamburgers, vitamins and, occasionally, spaghetti.

Americans may chuckle at bizarre wills of others, but there are few chuckles around when it comes to writing their own--a proceeding that inevitably reminds them of their own mortality. It’s an emotional subject, and when wills are contested, the battle is often a primal scream, as passionate as custody fights.

Resentment, jealousy, feelings of betrayal and abandonment swim to the surface of such legal combats, although all sides commonly insist that they are fighting for principle rather than money, and all profess to know--in a kind of post-mortem ESP--precisely what the deceased had in mind.

“Wills don’t tear families apart; families tear families apart,” says Sanford J. Schlesinger, a wills and estate lawyer.

Americans don’t like to write wills. Three out of four die without one, despite do-it-yourself books and countless magazine articles on the necessity of writing a will.

“People will generally buy life insurance, which is every bit as much a reminder of mortality as a will,” says Dr. Maris Vinovskis, professor of history at the University of Michigan. “Maybe it’s just that it’s a different industry. People will come to your house to sell you life insurance, but lawyers don’t make house calls to push wills.”

Education and money count for little when it comes to procrastination.

“Half of the surrogate judges I know don’t have a will,” says Nat Sobel, a retired surrogate judge in Brooklyn.

“I know partners in law firms who don’t have wills,’ says Schlesinger, of the big Manhattan law firm of Shea & Gould. He does, however.

A pastor in Pennsylvania, discussing with his parishioners the desirability of leaving a little something to the church when they go to meet their maker, remarked that these days it is a lot easier to get people to talk about their sex lives than their wills.

And lawyers report they usually have a drawer full of wills that have been all drawn up, the legal fees paid, but lacking one vital item--the signature.

“It’s a superstition. People feel they are going to die if they sign their wills,” says George de Sipio, a wills and estates lawyer for 34 years.

The will without a signature will not leave your brother Rufus a cup of coffee in most states. It might leave your wife and children roughly what you intended, but, then again, maybe not.

A person who dies without a will, intestate, essentially commissions the state to write the will. And the 50 states don’t agree on how the spoils should be divided. Brother Rufus, charities, a mistress, a close family friend, the lifelong cleaning lady, your loyal Saint Bernard, don’t usually fit into the state’s plans.

A state may divide the estate between the surviving spouse and the children, which may not be the wisest division, especially if the children are very young. Some allot the widow one-third, others half. Variations multiply in the absence of obvious direct beneficiaries when things get to a tangle of grandchildren, great-grandchildren and other relatives.

Schlesinger, as a wills and estate specialist, is in constant demand for speeches, even though he admits that he’s not “that great a spellbinder.”

“But then, I deal with the only two subjects that will never put me out of business--death and taxes,” he says.

His busiest times these days come after a terrorist attack, when clients plan a vacation abroad, and after holidays “when people fight or make up” and afterward come in to redo their wills.

State laws vary as to formalities in making a will a legal and binding document. Some states require three witnesses, most of them two; Pennsylvania simply requires that two people verify the signature.

One of the functions of a good lawyer is to try to make sure that the will is not contested. However, no one can guarantee that, since anyone with a pocketful of money for lawyer’s fees can challenge a will.

Many wills routinely stipulate that anyone contesting it is automatically disinherited. That partially works with people who are actually mentioned in the will, but there’s nothing to stop a challenge from somebody who wasn’t named.

Louisiana is the only state where disinheriting one’s children is illegal, the state’s statute being based on the French rather than the English model. The other states use the latter, which came in during the reign of Henry VIII.

The earliest known will far predates that era, however.

“Wills: A Dead Giveaway” by Millie Considine and Ruth Pool cites one carved on the walls of an Egyptian tomb by a man named Nek’ure who lived in AD 26. “While standing on my own two feet and not ailing in any respect,” he said, he disposed of 14 towns and two estates, dividing them equally among his wife, another woman and three children.

Holographic Wills

The book does not indicate the type of alphabet used in the will, but it certainly was holographic, i.e., written in one’s own hand.

Even today, holographic wills stand up under certain circumstances, but lawyers advise against counting on it.

One of the most unusual holographic wills was left by a Pennsylvania deer hunter. He had gone up to his cabin and suffered an angina attack. He found a dusty desk top and either with his finger or a 30.06 shell wrote out his will before he collapsed. The desk was properly stored in the county courthouse where all wills must be kept.

Disinheriting one’s spouse is illegal in all states unless by prenuptial agreement, more often resorted to in these days of second and third marriages.

Lawyers point out that despite the publicity that fights over wills generate--often because of the amounts and the celebrity status of the deceased--few wills are actually broken. For that matter, few are actually contested.

Only 200 Contested

In New York City, 20,000 wills are probated each year, according to Sobel, the retired surrogate judge. He said about 200 are contested and only about 20 actually go to trial.

Sobel said the most important idea that he tried to impart to juries was that whether the will is fair or unfair is none of their business.

“I stressed that that was not the issue,” he said. “The issue is simply whether the will was a valid one, whether all the requirements of the law were met.

“For them to make the determination of whether it was a fair will, they would have had to have spent their whole lives with the decedent. They can’t put themselves in that man’s shoes from the jury box.”

Inflation Exacts Toll

Sobel, now 80, also reflected on old wills which, failing to anticipate inflation, left beneficiaries in dire straits.

“Many a wealthy man left his widow the Park Avenue apartment, the summer home and $100,000 to be invested only in railroad bonds at 4%. That was fine in 1945. She could live nicely on that.” But as wages, living costs and prices soared, “that kind of annuity, meant to maintain her standard of living, didn’t even come close.”

Sobel said wills create the greatest bitterness when parents bequeath unequal amounts of money to their children. Siblings who receive less often take it as evidence that they were less loved, although it may be clear to everyone else that the parents allotted amounts according to the children’s financial needs.

Harvey Korn, law secretary to Manhattan Surrogate Judge Marie Lambert, says his job has left him less optimistic about human nature.

“I’ve seen many cases where a man has promised people everything and left them Arpege,” he says.

Girlfriend, Children Wrangle

He has also seen some odd wills. One was that of a law professor who actually taught will writing. He left half of his estate to his children and the other half to a girlfriend. It was heavily contested.

“It went all the way to the appeals court, and the girlfriend came out with the short end of the stick,” Korn said. “A lot of people around here thought he wrote the will that way on purpose. The girlfriend was pressuring him, and he showed her the will, which satisfied her, but he used precatory language.”

Precatory language, as a law professor might be presumed to know, doesn’t hold up legally because it expresses wishes rather than clearly designating the distribution of property. Such a will might say, for instance, “I wish my darling Dora to have. . . .” rather than, “to my darling Dora, I give, bequeath,” etc.

Legal fees can take huge bites out of contested wills. In the Johnson case, with $500 million at stake, they ran to an estimated $10 million, the highest in Korn’s memory. But he has seen a larger proportion of an estate gobbled up: In a case involving $100,000, the lawyers ended up with one-third.

Ruling From the Grave

Often, someone will try to rule from the grave.

Alvin Brannick, a lawyer and estate planner who now serves as a fund-raiser for Carnegie-Mellon University in Pittsburgh, recalls a will bequeathing scholarship funds to the university that stipulated that no student of “African descent” could receive the scholarship.

“It may be immoral, but that doesn’t make it invalid,” Brannick said. Because the university has about 150 to 200 other endowed scholarships, he adds, it doesn’t discriminate in fact.

“We just give it to one of the many others who win scholarships,” he said. “But he did reach out from the grave. Many people try to control from the grave what they could never control in life.”

Razing of Home Demanded

In Rhode Island, when reclusive Ethel Sawyer Turner died last April at age 80, she left a will decreeing that her rambling Victorian home, which is on the National Register of Historical Places, be razed. The site would go to the City of Cranston for public access to beaches.

The city doesn’t want the land, and officials want to preserve the house. But the clause is non-negotiable, according to the executor of Turner’s estate. A second cousin is contesting the will.

“It’s better to live rich than to die rich,” according to a saying on estate lawyer Schlesinger’s desk, but some beg to differ.

Brannick recalls a client whose will stipulated that she be buried wearing the enormous diamond ring that she had always worn. He showed up at the grave to make sure that her request was honored.

And so, this lady, the site of whose grave shall remain anonymous, did take it with her.