Brooke Astor's $60 Million Signature

Marc A. Hermann / AP Photo The lawyers were on trial this week in the Brooke Astor case, as her son’s lawyers defended their apparent credulity about her state of mind before signing away her fortune.

In late December 2003, Warren Whitaker, a trust and estates lawyer, received a call from Francis Morrissey, a fellow trust and estates lawyer who needed help drafting a codicil to a will. Morrissey, whose talent tended toward beguiling little old ladies to remember him in their bequests rather than the nuts and bolts of legal documents, explained that he was representing the grandest little old lady of them all—Brooke Astor.

Mrs. Astor, he went on, had a few days earlier added a codicil that hadn’t gone far enough in giving control over her estate to her beloved son Anthony Marshall. Upon reflection, she wanted to give him more. There were a couple of issues, however, that added to the urgency of the moment. Mrs. Astor was so old she could croak at any minute. Morrissey was also concerned that the lawyer who’d crafted the last codicil, Henry Christensen III, and his law firm, Sullivan & Cromwell, which had represented Mrs. Astor for 50 years, might challenge any new codicils.

Employees have previously testified to Mrs. Astor’s irrational—though perhaps not that irrational—fear of men in dark suits.

Apparently none of these conditions seemed fishy to Whitaker, 58 years old, or gave him pause. (Perhaps he was not aware that, according to The New York Times, Mr. Morrissey has been accused in the past of taking advantage of the mentally incompetent elderly and being left apartments and artworks in their wills. The cases were settled in confidential agreements without Morrissey admitting wrong.) He wrote a letter to Morrissey suggesting a second codicil and pitching himself as the man to do it. He included a legal article he’d written and some biographical information. And if Morrissey desired to reach him between Christmas and New Year’s, he’d be able to find him at the El Conquistador Hotel in Puerto Rico.

Over the next few weeks, in meetings and phone calls, Whitaker and Morrissey crafted a codicil that gave to Anthony Marshall outright $60 million that previous wills and codicils had earmarked for charity. That was in addition to the millions Marshall stood to gain from selling his mother’s apartment on Park Avenue and her estates in Westchester County, N.Y., and Maine. Not once did Whitaker meet with Mrs. Astor to determine her wishes, even though he was billing her, and not her son, at the rate of $500 an hour. Under skeptical questioning by prosecutor Joel Seidemann, Whitaker said that he took Morrissey’s word that while Mrs. Astor and her son had had their differences in the past, they’d grown closer in recent years and she wanted Marshall, rather than Sullivan & Cromwell or Henry Christensen—who had previously been designated as co-executor of her estate—to exercise sole control over her affairs.

Another welcome development, Whitaker learned from Morrissey and Marshall, was that Mrs. Astor’s frigid feelings toward her daughter-in-law Charlene Marshall had apparently thawed faster than the polar ice caps. Previous wills had had the $60 million residuary trust, of which Tony was to get 7% of the annual income during his life, going to charity upon his death. But now Brooke wanted that money to go to Charlene, and even to Charlene’s children.

“Did you say, ‘Can I call Mrs. Astor?’” Seidemann asked Whitaker.

“I thought meeting her was preferable,” the lawyer explained, adding that Morrissey and Marshall had told him that Mrs. Astor had good days and bad days (though not that she’d been diagnosed with Alzheimer’s). “I’m certainly not going to call her up and take a chance.”

He added, “I thought it would be strange given her fame and wealth and age to get a call from someone saying, ‘I’m just checking up on things.’” (It can’t be ruled out that Whitaker’s credulity may have had something to do with the $3.4 million in legal fees he’d be splitting with Morrissey as Christensen’s replacement. He was subpoenaed to testify by the prosecution but did so under immunity.)

So on January 12, 2004, Whitaker, accompanied by Robert Knuts, another lawyer at his firm, visited Brooke Astor’s 778 Park Avenue apartment to explain the codicil and, if she agreed with its provisions, to have her sign it. Much of the trial—which now seems destined to extend into late July if not August—has been consumed with “A-list” witnesses (Barbara Walters, Henry Kissinger, Louis Auchincloss, Philip de Montebello, et al.) testifying that their once-feisty, charismatic friend no longer recognized them, that her memory was gone, that she wandered the streets of the Upper East Side lost when she was allowed to go out alone. But repeating the defense’s mantra that Mrs. Astor “had good days and bad days,” Whitaker testified that, fortunately, January 12th turned out to one of Mrs. Astor’s best days in years.