WILLS: Homosexuals’ Estates Can Be a Bitter Legacy : Homosexuals’ Wills Stir Bitter Legal Quandaries

He was young, strong and handsome, buoyed by life and in love, when he sat down in 1984 to draft his last will and testament. It was, friends explained, the sensible thing to do.

Two years later, he was dead, his life snuffed out when he jimmied a window screen in his third-floor San Francisco hospital room and jumped.

Chris was 36. His suicide came just weeks after he found out he was stricken with a particularly fast-moving case of the virulent and deadly virus called AIDS.

He left behind a mother, father, sister, brother--and Mark, his lover, the man he had lived with for the last five years. Since the day of the funeral, the family and Mark, once warm friends, have been virtually at war, battling over who should inherit Chris’ estate.

Their dispute--venomous and accusatory--is a prime example of a painful legal predicament generated by the burgeoning AIDS epidemic. More and more, homosexual men are doing what once was done rarely--writing wills while still in their 20s and 30s. And families outraged over their son’s or brother’s homosexuality are increasingly seeking to overturn or modify wills that confer the dead man’s belongings on someone else.

Although few challenges have been successful, these legal quandaries have parents sparring with lovers and a legion of lawyers from New York to California writing wills for thousands of homosexual clients who believe that time is running out.

“Without a will, a family can come in with the fury of Sherman attacking Atlanta and strip everything,” said Mark Senak, the legal director of New York’s Gay Men’s Health Crisis Center. “The lover would be sitting there with grief, the shirt on his back and little else to protect him.”

The story of Chris and Mark illustrates not only the need for a will, but the kind of struggle that can take place even when one is written.

Chris’ bereaved family has accused Mark of squandering what they believe was earmarked for them. They have accused him of wielding a Svengali-like influence over their son and brother. And, Mark claims, they have accused him of murder--of shoving Chris out the window and of knowingly infecting him with the lethal AIDS virus. “People are carriers and people are not,” Chris’ younger brother, Carl, charged bitterly. “Who knows? Maybe (Mark) gives people AIDS and has them write wills. . . . Now he can go on to the next guy.”

Although Mark estimates that Chris’ estate is nearly worthless in light of substantial medical and legal bills, the family thinks otherwise. They claim that valuable properties and other sizable assets were furtively sliced from the estate in the days before Chris’ death and that Mark has not fulfilled an unwritten pledge to take care of them. “He was left over a $1-million estate,” Carl insisted. “We feel completely victimized by a person who had complete control of my brother’s mind for a long period of time. . . . It was Mark’s idea to write the will. . . . He made Chris do all these things to set himself up. . . . He kept everything of value that (belonged to) Chris.

“Chris told us Mark had promised we would be well taken care of. . . . He hasn’t even sent us a picture. . . . Chris would be turning in his grave right now.”

Late last year, Carl and other relatives filed legal papers challenging the will, saying that Chris was mentally deranged when he left everything--with the exception of a $50,000 gift to his brother--to his lover. They asked that Mark be removed as executor.

Adamant that he had done nothing wrong, Mark stood his ground.

Relatives ‘Want to Fight’

“Looking at the whole picture, these people want to fight, they want to vent their anger that Chris is dead . . . that I’m alive,” said Mark, 36, a slender man with close-clipped black hair and movie-star good looks.

“They were very upset that Chris did not take better care of them (but) he had this old-fashioned belief that they were on their own. They were not poor and the only loyalty he really owed . . . was to me. I was the most important person in his life, absolutely, beyond a shadow of a doubt.

“Chris looked at it like he and I were married.”

The chances of overturning the will, of any will, are remote, experts say. Overall, less than 5% of the wills filed after any death are challenged, and only about one in 10 of those challenges succeed.

But because of the special nature of AIDS and the dementia it sometimes produces in its victims, challenges are considered more likely than in other cases.

“Because of the overlay of possible mental problems caused by AIDS, families have a leg up to claim the patient was not in his right mind or competent to make a valid will,” said New York attorney Eleanor Alter, who specializes in family law. “On top of that . . . there’s shame and disgrace and anger toward gays, and . . . many people feel money should stay within a family.”

And frequently, family members feel that if they do not get the money--no one should.

“Families will fight over $200,” San Francisco attorney Gary Wood said. “They will waste an entire estate fighting over it. Sometimes that’s just what they had in mind.

“I’ve been doing probate for years,” Wood added. “I never had a will contest until I handled clients with AIDS.” Wood, with attorney Alice Philipson, heads the Bay Area Lawyers for Individual Freedom.

Philipson said challenges are most likely to come from a “grieving parent from middle America who has consistently refused or not known about (the) son’s homosexuality.”

“If you believe your child’s lover is the devil incarnate, you are going to believe they unduly influenced him by some kind of devil sex,” Philipson said. “They are going to believe because of the unnatural tie of affection, they unduly influenced ‘Johnny-Be-Good,’ who is really straight but was led astray.

‘It Gets Really Hairy’

“Besides, (the lover) probably gave him the disease and is the cause of this death. It gets really hairy.”

The actual number of such will challenges is hard to pinpoint.

Probate courts do not keep such records, and the thirst for privacy among some homosexuals and families frequently leads to settlement before a dispute becomes public.

“We will never know the full extent of the problem because most of the cases are resolved in a quiet fashion,” explained Tom Stoddard, legal director of the Lambda Legal Defense and Education Fund Inc., a homosexual rights group in New York. “But certainly our instinct is this is a serious problem and will continue to grow as the AIDS crisis grows.”

Moreover, the AIDS epidemic is relatively recent and the death toll nationally among homosexuals, intravenous drug users and all other victims is under 20,000. But thousands more suffer from the incurable disease and the death toll--along with the number of wills that will go through probate--no doubt will spiral in coming years.

Challenges aside, a will is an effective legal means of providing for lovers and friends even when a family welcomes the relationship. Without a properly executed document, any estate routinely passes to the next of kin, no questions asked.

“If you’re married and you die, the state writes your will for you--it goes to your family and your children,” New York’s Senak said. “Frank and Joe can live together for 20 years and that’s never going to happen. They have to go out and get their rights.”

Procrastinating for more than a year on his own will, one Los Angeles attorney said he finally overcame his distaste for writing it when he faced the alternative of what could happen without one.

“When you start a relationship, your properties are separate from one another,” the attorney explained. “A will doesn’t seem necessary. . . . But as you go along in a relationship and . . . your lives merge more and more, you go over that line to where a will is necessary.

“If I didn’t write a will, everything would go to my family. It would have left Hank in a position of being out on the streets.”

Armed with that kind of argument, gay rights groups across the country have been preaching the gospel of being prepared. Homosexuals by the thousands have been heeding the call.

Last year in Los Angeles, county Bar Assn. lawyers joined with AIDS Project L.A. in an ambitious program to provide free wills and other legal services to AIDS patients. The more than 100 participating attorneys expect to see a total of 500 clients this year alone.

In San Francisco, Wood’s panel of 200 attorneys drafted more than 1,000 wills in the last three years. They expect to write hundreds more this year.

And, in New York, Senak’s gay rights group, with a current caseload of 1,500 clients, holds will-writing clinics nightly. Since 1982, the group has served 5,500 clients, the vast majority of them homosexuals representing about 15% of the nation’s AIDS caseload.

“Nobody likes to deal with death and dying, and that’s what writing a will is all about,” acknowledged Leonard Graff, legal director of the National Gay Rights Advocates in San Francisco. “But there’s a tremendous number of wills being written. . . . It’s good preventive medicine.”

In San Francisco, when Chris wrote his will, the prospect of AIDS seemed as remote as his family’s anger.

Family Was Cordial

A clan of proud New York Italians, the family had come to accept Chris’ homosexuality and relations between them and the two men were cordial. Neither man had known anyone with AIDS, Mark said, and both were expecting to live long lives.

But because the construction company Chris had founded with Mark was doing well, writing a will made good business sense. Given a copy of the document, Carl said it remained sealed inside his desk drawer until his brother’s death.

“My brother was in love with Mark, there’s no secret there,” Carl said. “I trusted Mark to do the right thing. . . . He turned like Dr. Jekyll.”

Mark recalled that the family “would call me their second son, their third son. We took trips together, had dinner together. I’d go to New York with Chris to see them. I was in his brother’s wedding.”

“For this thing to happen, at first I didn’t believe it.”

On the day his lover was buried, Mark said he turned into an “instant enemy.” The family grilled him about life insurance, bank accounts and the business. Then, he said, they began making allegations.

Within 72 hours, they notified the company carrying a $150,000 life insurance policy on Chris that the death was a possible murder, and days later followed up by reiterating their suspicions to police.

“They just old-fashioned wanted more money, but if they could put me in jail for killing Chris, well, that was preferable,” Mark said. “It was awful, the pain and agony of losing somebody you love, then being told we’re going to put you in jail, we’re going to accuse you of fraud, we’re going to make this as rough as possible.”

At first, Mark said, they accused him of pushing Chris out the window. Later, the family suggested that the pair had a suicide pact and Mark persuaded Chris to jump.

Still perplexed about Chris’ death, Carl said when he and his brother spoke the night before he died, there was no hint of despair.

‘It Doesn’t Make Sense’

“What eats away at my guts is Chris needed to tell me things. He knew I was coming up from Los Angeles. He told me to bring him this, bring him that. He ate breakfast that morning and an hour later, jumped out the window,” Carl said. “It doesn’t make sense.

“I’m not saying Mark killed Chris, but what I said to the police is . . . doesn’t anybody ask any questions? There’s a $1-million estate here.” Although the police ruled the case a suicide, the family continues to believe that there is a “story behind this death,” their lawyer said.

Moreover, in probate court documents, the family accuses Mark of contracting AIDS and passing it to Chris. It is a charge Mark hotly denies.

“The word is ridiculous, “ he said. “I had a complete physical . . . for my own peace of mind. I’m fine.”

Clearly, the men’s openness about their homosexuality and the once-close ties between Mark and the family were not enough to prevent a caustic legal battle, one that is not likely to end outside a courtroom.

But most times, honesty does help in avoiding confrontations, legal experts say.

Although there can be several grounds for a challenge, families who sue to break a will usually focus on mental competence. They argue that the dying man simply was incapable of knowing what he was doing or who he was providing for.

Such a contention works best in cases of death-bed wills, the 11th-hour documents written at the weakest moments and signed with the shakiest hands.

“The healthier you are, clearly the less challengeable the will is,” attorney Alter said. “If it’s available, have a videotaping of the execution of the will. Do a transcript.

“You want to take more precautions because you know there is a real potential for a fight.”

A second major grounds for a challenge is duress.

“The person writing the will is so under the control of the person receiving the benefit that he is unable to exercise independent judgment or free will,” Los Angeles attorney Ronald Katsky explained. “He’s a pawn.”

No matter the grounds, the fights can be costly. Mark said he already has spent $15,000 in legal fees, and Carl $12,000. Their case is more than a year from trial.

Faced with that kind of expense, some families who would otherwise challenge a will try instead to force some kind of settlement. Others simply give up the fight.

Inherited Everything

David Phlipot, a 38-year-old florist, inherited everything when his lover of five years died in 1986. There was a beautifully appointed North Hollywood home, a large collection of pre-Columbian art, Japanese porcelain and a $100,000 life insurance policy.

“From the moment he died, his family became crazed,” said Phlipot, a slender and bespectacled man who has been undergoing psychiatric care ever since his lover’s death.

Born in a small town in Ohio, Phlipot’s lover, Hollywood florist and set designer Jerry Maston, had not told his family that he was gay.

“In fact, that was one of the most difficult times when he was diagnosed, that he would have to say something,” Phlipot said. “He asked me if I would and I did. . . . I told his family he was gay, he was suffering from AIDS and he was going to die.”

First learning that he had AIDS in 1985, Maston completed his will within weeks. He was careful to name his family members--father, brother, cousins, uncles and aunts--but left them nothing. Only after Maston’s death did the family discover that they had been shut out.

“The family was shocked and upset,” Phlipot said. “A lot of ugly things happened. . . . They never wanted to deal with me again and called me a bastard.” The family, Phlipot said, refused to run an obituary in the hometown newspaper, refused at first to have him buried in the hometown cemetery, refused to have Phlipot accompany the body home. The body was lost en route, recovered a day later in an airline terminal in Chicago and finally put to rest without a formal service or flowers.

“The family got an attorney back there and they questioned what was legally possible,” Phlipot said. “The bottom line was (that) there was a will, Jerry had named them all and they couldn’t challenge it.”

Naming family members in a will can substantially blunt a claim of incompetence or duress. Leaving them family mementos is even better.

“If a person acknowledges the (family), that precludes nephew Joey from saying Uncle Harold forgot about me because his lover exercises undue influence,” Katsky said.

‘He Chose His Own Way’

Brushing aside the suggestion that he held such undue power over Chris, Mark described his lover as a strong man who knew what he wanted.

“Chris was not on this Earth to retire his family,” Mark said. “He had his own life and he chose his own way . . . and said what he wanted done. There was nothing you could pull over on Chris.”

For months after Chris died, Mark said, he tried to hammer out a settlement with the family. Hurting and angry, the two sides could not agree. The will contest was filed four days before the six-month legal deadline.

“I waited and waited and waited for Mark to fulfill his promises,” Carl said. “I said to Mark a hundred times, ‘Please don’t make me do this.’

“He seems to think I’m prejudiced against gays. It has nothing to do with being straight or gay. . . . This is a question of right and wrong.”

Once reluctant to fight back, Mark said he is committed to “go all the way with this.”

“After finding out that they are accusing Chris of being insane . . . that was it,” he said angrily. “Chris was a wonderful man who happened to be homosexual. . . . He did everything possible legally to make us closer. But sometimes you can have all your paper work together and still have incredible problems.

“People can be enormously cruel.”