When offering a will can lead to criminal charges

When offering a will can lead to criminal charges

The Mary Ellen Bendtsen estate has been the subject of much media coverage in the Dallas area.  The short version of events is that she owned a historic mansion on Swiss Avenue in Dallas. Several years before her 2005 death, she was befriended by two much young antique dealers, including Mark McCay. Eight days before she died, she executed a will in a hospital leaving the house to McCay and the other dealer. The entire saga is the subject a series of stories in the Dallas Morning News and became something of a rallying point against financial abuse of the elderly and infirm.

Mccay offered that 2005 will for probate the day after Bendtsen died. Bendtsen’s daughter successfully contested that will.

McCay was subsequently indicted and convicted of attempted theft of property valued at more than $200,000.  The trial court assessed his punishment at ten years in prison, probated for four years, and a $1000 fine.

He appealed the conviction, arguing that causing a person to execute a will and filing that will for probate are not illegal acts. In its decision, the Dallas Court of Appeals agreed that causing and offering a will are not criminal acts. But the decision noted that McCay’s conduct went beyond, including acting with specific intent to deprive someone of property who could not give effective consent.

McCay contended the prosecution improperly attempted to criminalize a will contest. The court replied that a will contest determines the validity of a will, whereas a prosecution for theft determines whether a person has the specific criminal intent to deprive the owner of her property:

“The only will contests that can be ‘criminalized are those in which a will proponent knowingly submits a will for probate with the specific intention of stealing an estate from others with the legal right to inherit.  A good faith contest between two wills does not amount to a theft and would not be prosecuted as one.”

The court of appeals then detailed extensive evidence that MCCay had been trying for years to have Bendtsen leave him the house.  Those efforts had been unsuccessful for years, until Bendtsen was on her death bed and incapacitated.

I have a number of thoughts on the issues raised in this case that I can discuss in a later post. Ordinarily, these matters should be handled in civil proceedings. Threats of criminal prosecution should not be used as leverage in a civil case.  But too often civil remedies are cost prohibitive to pursue. Wrongdoers are aware of this and the only effective deterrent may be a series of high profile criminal prosecutions.

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