The Tragedy of Vicki Lynn Marshall
or
What We Can Learn from the Will of Anna Nicole Smith
by Amos Goodall
Anna Nicole Smith was the stage name of Vicki Lynn Marshall, who died February 8, 2007. A number of controversies swirled around her, during life and after death.
Anna Nicole’s Will was executed over five years ago. It was filed in court proceedings and is available for anyone to retrieve. It contains a number of interesting clauses, and was apparently written without providing for future events in her life. It was not revised when her daughter was born. Many of its limitations might have possibly been important when signed, but which should have been revisited when her life changed. The effect is that her daughter, Dannielynn, is theoretically completely excluded as a her heir. After the dust settles, it is likely that whatever portion of Anna Nicole’s estate left over after all litigation costs have been paid will go to Dannielynn, but without the flexibility and protections a well written will should have in place, possibly being paid to her in a lump sum upon her eighteenth birthday without further supervision.
Anna Nicole’s Will, in Article I, contains a positive statement that Anna Nicole was specifically excluding “future...children and other descendants now living and those hereafter born...” The Wills names her companion, Attorney Howard Stern as executor and names Mr. Stern as guardian of Daniel who was then her only child. The Will provided that “all of the property of my estate (the ‘residue’) after payment of taxes and expenses should go to Mr. Stern to be held in trust for my child under such terms as he and a court of competent jurisdiction may declare, such that my children are distributed sufficient sums for the health, education, and support according to their accustomed manner of living from either the income or principal of the trust until age twenty-five.” Most well-written wills tailor the terms of the trust to the specific needs of the child and regulate the discretion of the trustee to reflect the parent’s plans for the child. Even this poor excuse for a trust may not apply to Dannielynn, her recently‑born daughter.
Although the Will uses the term children once, it is clear that a fair reading of this instrument indicates that it provides only for Daniel, who, as every reader of the Centre Daily Times knows, unexpectedly pre-deceased his mother. The Will contains a number of provisions which seem to have been engrafted without a great deal of thought. For example, there is a provision dealing with co-executors, even though under the terms of Will only one person can serve as executor. There is also a clause providing that if any heir contests the disposition, the heir will be disinherited, even though there is only one heir.
Finally, there is a specific statement that “I have intentionally omitted to provide for any of my heirs or any persons claiming to be my heirs, whether or not known to me”.
Omitted from any mention in the Will is Anna Nicole Smith’s daughter, Dannielynn, born September 7, 2006, at Doctors Hospital in Nassau, Bahamas. Although until the DNA test results were announced, there was some controversy over the paternity of Dannielynn, there appears to be no question that she was the daughter of Anna Nicole Smith.
Under the Will, the only heir named was Daniel. There was no provision for what would happen if Daniel Wayne Smith died before his mother. Thus, under this Will standing alone, it appears that there would be no heir.
Dannielynn could also have been considered a “pretermitted” child, namely one born after the execution of the Will, unless the failure to name the child could be seen as intentional. While this would be a factual question, a fair reading of the quoted language of the will could support the argument that she had been omitted on purpose.
When a property is not completely disposed of under a Will, the law of intestate succession applies. For most property, the applicable law is the law of the residence of the person who died. Given Anna Nicole’s travels, the location of her residence may be a matter occupying various courts’ attention for some time. It may be that she would be deemed to have been a Bahamian resident, in which case, the law of the Bahamas could well decide where her property goes. In many jurisdictions, if she truly was not married, then her property would descend to Dannielynn, under the laws of intestate succession.
It is important to know how the property will be held for Dannielynn while she is a child and whether there will be any controls over her when she reaches legal adulthood at age eighteen. For Daniel, the Will contained a provision allowing one-third of the property to be distributed at age twenty-five, one-half of the balance at age thirty and the residue at age thirty-five. None of the provisions for the trust for Daniel may apply to the intestate distribution to Dannielynn. The parties will undoubtedly need to return to court to determine what should happen to the money.
Smaller bequests can be delivered to the child’s guardian. For larger bequests, the law provides for a restricted deposit in an insured account with a bank or similar deposit institution. This, of course, does not permit financial planning which might be appropriate for someone of Dannielynn’s age. Finally, a full blown guardianship proceeding can be instituted, and the court can appoint a guardian who would have investment powers, such as a bank or other responsible person acceptable to the Court. Finally, the guardianship or sequestered trust provisions would ordinarily terminate upon the child’s eighteenth birthday, no matter whether the child was ready to receive a fortune or not. Rather than using the legislature’s generic plan for a minor, a well drawn will could have recognized the possibility that Anna Nicole might have later have had children and provided for them. Another possibility is that when her situation changed, either at Dannielynn’s birth or Daniel’s death–the will could have been revised. It might also have provided more guidance for the entity in charge of the money.
If Anna Nicole’s estate manages somehow to hold onto her claim for half of her late husband, J. Howard Marshall’s multi-million dollar estate, it may not be appropriate for Dannielynn to come into possession of all this money at age eighteen, which seems to have been Anna Nicole’s concern for her son. Moreover, the fees in this case will probably fund the retirement programs of more than a few lawyers, money that could have been better spend on Dannielynn’s care and upbringing.
The lesson here is to review estate plans periodically. The typical advice is to review the documents every five years or whenever your situation changes. A review at either of these times could have avoided Anna Nicole’s final controversy. The fees for a local attorney to conduct this review are certainly minor in comparison to the harm that could be avoided, and since the law is constantly changing, it is important that the reviewed by a lawyer. Other agencies who try to couple estate planning advice with unrelated services such as financial or tax planning may or may not be up to date on the latest changes in the law that are outside their areas of expertise. They all have an important role to plan in creating an estate plan, but a local lawyer is one of the most important players.