Contesting a will

[charlestudor2005]

Originally Posted by Camille

It seems pretty adbsurd to me that because she wasn't that involved with the Rwandan community (fuck me, would you have been had you been her?) the NY court considered that to be only a place of employment and not a place of residence. What? Are 18 straight years there with no property in the US? That smacks of clutching at straws. Worse still, because she studied for 3 yrs in NY...some 3 decades before her death...that was considered her domicile. At least give a better reason for picking her residence than that. Good grief. I wonder if this was appealed. it sounds about as shaky to me as her parents. Sorry, but this has really bothered me...

C

Unfortunately, Camille, most probate courts aren't given the leniency to do that. Probate laws are very strict and construed strictly. Just because she "lived" someplace for 18 straight years doesn't mean she was domiciled there, or intended to be domiciled there. I have had relatives that lived in foreign countries (and who were not in the military) for years who still vote in local elections in the US. It's not so easy a matter to reject a domicile, at least in probate. Which is why I asked some of my original questions: where was the will drawn? Where was it probated? That would give us some idea. And NY is one of the more old fashioned states when it comes to this kind of thing, I think.

But it wasn't the domicile that caused the will to fail. It was the inability to find a valid will in the first place. And that fault can only be laid at the feet of one person: Dian Fossey. Unless, of course, anyone came forward with proof that someone else destroyed a valid will. That does happen, too.

Like I said, estates make for a lot of nefarious conduct.

[Rudyard K]

Originally Posted by Mazomaniac

Just to add a little perspective . . . the mother's intention here may not have been entirely selfish.

I can't speak directly to it because I don't know the mom, but I will say that both Fossey and the Fossey Gorilla Fund are not the most beloved characters among conservation scientists. She definitely contributed to the field and she was an outstanding leader in anti-poaching efforts in the beginning, but she definitely was not the glamorized version that was seen in the movie. In fact, she was pretty much scorned by the science community and had most of her funding cut off in the end. I give her props for a solid body of work, but she was no Jane Goodall or Richard Leakey when it came to either science or politics.

The same can be said of the Fossey Fund. A lot of people think that they're doing more harm than good to the cause. They're considered a fringe group by the scientific community - sort of the whale warriors of the jungle. Fossey's scientific funding was cut in part because she went so far radical and did things that seriously crippled other anti-poaching efforts.

So while it may look on the surface that this was just a greed grab by momma keep in mind that there may well be more to it. Her mom may have done this more to keep the money away from the fund than to stuff her own pockets. It would be interesting to know exactly what happened to the cash before we go crucifying people for it. This may have been politics, not economics.

Cheers,
Mazo.

Frighteningly...I agree with Mazo here (makes me wants to question myself more ).

What we are reading is an article written (about the contest) from the losing party. Not exactly an unbiased source. In general, I agre with most folks sentiment here that Mom should not contest the will, if it was her daughters wishes. But we also don't know if the validity of the will was in question. That typically is the reasoning behind witnesses. There were many other forces (including some government folks for the government of Rwanda) trying to grab hold of these monies too.

Typically, this is why we have the system we have. the advocate for one side puts the best spin on the facts they can. The advocate for the other side puts the best spin on the facts that they can. And a group of disinterested people listen to all that rhetoric and hope to guess the truth. In this case it seems like a judge was the jury. But that doesn't mean he didn't follow a good rational for doing so.

[Chevalier]

It's also hard to evaluate the controversy over the Barnes Foundation. Probably neither the proponents nor the opponents of the move are very objective. Just from a cursory examination, it appears to me that:

• The collection was not so much "stolen" as moved to a location where Barnes did not want it, although the trustees also allowed more touring exhibitions and more public access than Barnes wanted. (Actually, it hasn't even been moved yet, and the court is now hreopening the question.)
• Questions were raised about allowing tax-exempt status for an art collection to which public access is limited. Without knowing more details, that seems at least a legitimate question. A totally private art collection certainly shouldn't be given the benefit of not having to pay taxes, should it? This situation was somewhere in the middle; might be a tough call.
• Due to very poor management, and reluctance by donors to give money to a collection to which there was limited access, the foundation was near bankrupt. As a result, it may not have been possible to honor the founder's wishes -- at least, if the trust also prohibited selling items, which I imagine it did. If you don't have enough money to maintain the collection at the chosen site, what do you do? What comes closest to the founder's wishes? What other alternatives were there?

Without knowing a lot more details so that I can judge for myself, my tendency is to assume that the judge probably made the best of an unfortunate situation. He may have exercised poor judgment in doing so, and the court of appeals may have exercised poor judgment in affirming his actions. But there was still judicial review to limit the ability of lawyers and politicians to subvert the founder's wishes. It's not a perfect system and I don't always like the results, but it's better than most alternatives.

[I B Hankering]

Originally Posted by Chevalier

It's also hard to evaluate the controversy over the Barnes Foundation. Probably neither the proponents nor the opponents of the move are very objective. Just from a cursory examination, it appears to me that:

• The collection was not so much "stolen" as moved to a location where Barnes did not want it, although the trustees also allowed more touring exhibitions and more public access than Barnes wanted. (Actually, it hasn't even been moved yet, and the court is now hreopening the question.)
• Questions were raised about allowing tax-exempt status for an art collection to which public access is limited. Without knowing more details, that seems at least a legitimate question. A totally private art collection certainly shouldn't be given the benefit of not having to pay taxes, should it? This situation was somewhere in the middle; might be a tough call.
• Due to very poor management, and reluctance by donors to give money to a collection to which there was limited access, the foundation was near bankrupt. As a result, it may not have been possible to honor the founder's wishes -- at least, if the trust also prohibited selling items, which I imagine it did. If you don't have enough money to maintain the collection at the chosen site, what do you do? What comes closest to the founder's wishes? What other alternatives were there?

Without knowing a lot more details so that I can judge for myself, my tendency is to assume that the judge probably made the best of an unfortunate situation. He may have exercised poor judgment in doing so, and the court of appeals may have exercised poor judgment in affirming his actions. But there was still judicial review to limit the ability of lawyers and politicians to subvert the founder's wishes. It's not a perfect system and I don't always like the results, but it's better than most alternatives.

Again, what I know of the case is based primarily on the film - which, I admit, is biased. Nevertheless, Barnes' obvious intent was to leave an art conservatory, at its current location and with limited public access, to educate aspiring, talented artists. At present, these terms have been violated.

One of the reasons the Foundation ran short of money, was because it had to keep defending itself against frivolous lawsuits brought against it by local citizens and politicians seeking to grab the collection "for public use" so that some self-serving politicians could ingratiate themselves with the public by claiming "look what I did for the citizens!" Furthermore, these politicians used public funds to mount their attacks. The Foundation's funds were more limited.

Ultimately, as you noted, the court ruled the collection should be moved to a public location - and this is expressly in violation of the terms of Barnes' will. But it is being reviewed. It is a very interesting case.

[Chevalier]

Originally Posted by I B Hankering

One of the reasons the Foundation ran short of money, was because it had to keep defending itself against frivolous lawsuits brought against it by local citizens and politician

I'm pretty sure the plaintiff's lawyers among us have demonstrated clearly that frivolous lawsuits are not a concern as they do not pose significant costs or harm to defendants.

[I B Hankering]

Originally Posted by Chevalier

I'm pretty sure the plaintiff's lawyers among us have demonstrated clearly that frivolous lawsuits are not a concern as they do not pose significant costs or harm to defendants.

The politicians directed all of the pressure a government can enlist and pointed it in the direction of the Foundation: building inspectors, fire code inspectors, zoning ordinances, tax audits, etc., etc. Eventually, a court order required the Foundation to expand its number of trustees from five to fifteen - some of whom proved unscrupulous - and that's when the Foundation lost control of the collection. It was dirty pool. Essentially, the politicians - driven by selfish motives - put the Foundation out of business.

[Mazomaniac]

I think that a case like the Barnes estate raises much more difficult questions though. It that instance you're not just dealing with a bank account and some royalties. The Barnes collection holds some of the world's great art. These are unique objects, not just a pile of cash.

Once you start dealing with things like art I think the equation changes. Yes, Barnes "owned" those works. But that art also - to some extent - represents the collective heritage of mankind. In that sense there is and always will be a public interest in it.

I think that once Barnes died and left that collection to a trust rather than place it in public hands the public interest in the works magnified enormously. If he had given the stuff to his kids and they had decided to burn it . . . well . . . that's they're prerogative. They would have owned the stuff and they would have had the right to be asses and destroy it.

Once the trust came into play, however, the public interest came into it. Now the collection is under the supervision of the trustees and the court and they have all the power. The will becomes a strongly persuasive guidance, not a mandate. The works are now held in trust for the public now and the public should have some say in what happens to them. If the trustees and the court decide that the works would benefit the public more if they were moved to a new home then so be it. Barnes gave up that decision when he died and put the collection out there for the trust to manage. Bear in mind that the trust is a public charity now and as such must be run for the benefit of the public under state and federal law.

If it were just Barnes' money then yeah, I'd say it was all a cash grab. What we're talking about in this instance is something well beyond that though. I think that trustees and the court are just acting in the best interests of the public and the collection. It's a lot tougher when you're dealing with stuff like unique works of art.

Cheers,
Mazo.

[I B Hankering]

Originally Posted by Mazomaniac

I think that a case like the Barnes estate raises much more difficult questions though. It that instance you're not just dealing with a bank account and some royalties. The Barnes collection holds some of the world's great art. These are unique objects, not just a pile of cash.

Once you start dealing with things like art I think the equation changes. Yes, Barnes "owned" those works. But that art also - to some extent - represents the collective heritage of mankind. In that sense there is and always will be a public interest in it.

I think that once Barnes died and left that collection to a trust rather than place it in public hands the public interest in the works magnified enormously. If he had given the stuff to his kids and they had decided to burn it . . . well . . . that's they're prerogative. They would have owned the stuff and they would have had the right to be asses and destroy it.

Once the trust came into play, however, the public interest came into it. Now the collection is under the supervision of the trustees and the court and they have all the power. The will becomes a strongly persuasive guidance, not a mandate. The works are now held in trust for the public now and the public should have some say in what happens to them. If the trustees and the court decide that the works would benefit the public more if they were moved to a new home then so be it. Barnes gave up that decision when he died and put the collection out there for the trust to manage.

If it were just Barnes' money then yeah, I'd say it was all a cash grab. What we're talking about in this instance is something well beyond that though. I think that trustees and the court are just acting in the best interests of the public and the collection. It's a lot tougher when you're dealing with stuff like unique works of art.

Cheers,
Mazo.

The public was given limited - not denied - access according to the terms of Barnes' will. So the heritage was being shared. One of the politicians was appointed as a trustee, and he received a hefty income even as the Foundation was struggling to meet its obligations. What the politicians did was for personal political gain; thus, I would call it theft.

[Mazomaniac]

Originally Posted by I B Hankering

The public was given limited - not denied - access according to the terms of Barnes' will.

That's not the case.

Barnes was something of a kook. He left specific instructions that certain individuals and classes of people would not be allowed access to the collection. In many cases he named specific individuals because he just didn't like them. The bylaws allow for limited public access but also establish that the foundation as a school with the collection for the benefit of the students , not as a public museum.

The courts overturned that section of the charter back in 1960 ruling that, since the trust took advantage of public tax shelters as a 501(c)(3) charity, the collection had to be open to the public or the estate would have to pay tax. The collection wasn't fully available to the general public until after the courts stepped in with that ruling.

This is actually a rather famous legal case and, while I haven't seen the movie, what I've here so far does not jive very well with what's in the legal record. There is, however, an excellent and seemingly unbiased review of the whole situation in the University of Pennsylvania Law Review that you can find here.

From what I'm reading in this thread it sounds like the movie is more than a little slanted. It seems pretty clear to me that on the legal side the trustees are doing the right thing.

Cheers,
Mazo.

[I B Hankering]

Originally Posted by Mazomaniac

That's not the case.

Barnes was something of a kook. He left specific instructions that certain individuals and classes of people would not be allowed access to the collection. In many cases he named specific individuals because he just didn't like them. The bylaws allow for limited public access but also establish that the foundation as a school with the collection for the benefit of the students , not as a public museum.

Yes. This is true. There were many in "high society" that Barnes absolutely hated. I think the feeling was mutual. But that was his prerogative. Unfortunately, when your enemies out live you, they get to call you all kinds of names.

Originally Posted by Mazomaniac

The courts overturned that section of the charter back in 1960 ruling that, since the trust took advantage of public tax shelters as a 501(c)(3) charity, the collection had to be open to the public or the estate would have to pay tax. The collection wasn't fully available to the general public until after the courts stepped in with that ruling.

For what it is worth, the collection was open two days a week for public viewing; thus, it did not accommodate large numbers of people. The trustees resorted to "appointment only" viewing to avoid lines and crowds of viewers. Additionally, there were the students who used the collection to advance their craft.

Originally Posted by Mazomaniac

This is actually a rather famous legal case and, while I haven't seen the movie, what I've here so far does not jive very well with what's in the legal record. There is, however, an excellent and seemingly unbiased review of the whole situation in the University of Pennsylvania Law Review that you can find here.

If I remember correctly [and I might not] one of Pennsylvania's Universities "acquired" the collection, so such a report may not be that unbiased.

Originally Posted by Mazomaniac

From what I'm reading in this thread it sounds like the movie is more than a little slanted. It seems pretty clear to me that on the legal side the trustees are doing the right thing.

While it's true that the collection was not fully open to the masses, and certain people were explicitly denied entrance, the very dedicated few could see the exhibit. It's been months since I saw the film, and I certainly never entertained the idea of defending its major premise, so I'll "cease and desist." Watch the movie. It's good propaganda if nothing else. It certainly has me believing it was a wrongful action, and that several politicians pursued the collection for self-serving reasons.

[Camille]

I understand what you are saying Charles about being domiciled..particularly as it relates to intention. I guess I was commenting that it appears just as unlikely that she intended to be domiciled in NYC.

Mazo, I wasn't aware of the contentious issues surrounding the digit fund...but still, her parents could have gone some way towards at least trying to rectify her wishes by finding a fund that was appropriate to donate some of the funds to. I haven't seen anything yet that shows they made any charitable donations to any animal cause. I dunno, just all seems very unpleasant and odd....

C x

Originally Posted by charlestudor2005

Unfortunately, Camille, most probate courts aren't given the leniency to do that. Probate laws are very strict and construed strictly. Just because she "lived" someplace for 18 straight years doesn't mean she was domiciled there, or intended to be domiciled there. I have had relatives that lived in foreign countries (and who were not in the military) for years who still vote in local elections in the US. It's not so easy a matter to reject a domicile, at least in probate. Which is why I asked some of my original questions: where was the will drawn? Where was it probated? That would give us some idea. And NY is one of the more old fashioned states when it comes to this kind of thing, I think.

But it wasn't the domicile that caused the will to fail. It was the inability to find a valid will in the first place. And that fault can only be laid at the feet of one person: Dian Fossey. Unless, of course, anyone came forward with proof that someone else destroyed a valid will. That does happen, too.

Like I said, estates make for a lot of nefarious conduct.

[Mazomaniac]

Originally Posted by Camille

Mazo, I wasn't aware of the contentious issues surrounding the digit fund...

Just to flush this out a little so people understand the scope of what I was talking about since it doesn't get a lot of media play in the west . . .

One of the things that the Fossey Fund has taken huge heat for is their stance on indigenous populations. They claim that they work with locals to relieve poverty that leads to poaching. At the same time, however, they take the position that any human activity inside a wildlife preserve (except for their money-raising tourism activity, of course) is destructive to the wildlife and needs to end. Yes, they do funds things like clean water and health care for villagers, but they do those things in areas away from the preserve in order to encourage people to pack up and leave their ancestral lands. This has more or less pissed off the locals who see tourists paying the Fund decent cash to access the gorillas only to have that money end up in a well a couple hundred miles away. The Fund does everything it can to keep tourist dollars out of the hands of villagers near the preserves - exactly the opposite strategy taken by other conservation groups.

The nastiest example of this kind of thing happened back in the '70's when Fossey and others convinced the Rwandan government to remove all human presence from Volcano National Park where the gorillas live. The indigenous Batwa pigmies of the area where simply kicked out of their ancestral homes and hunting grounds and given nothing to start over with. They were just evicted and left with nothing. As a result some of the Batwa started hunting gorillas in an attempt to eradicate them so that they could move back to the mountain. That just brought more shit down on them and they were literally forced away from the preserve at gunpoint by the army and Fossey's poaching patrols. Today what's left of the Batwa live in abject poverty in several camps near larger towns. They've never been allowed back to the mountain or compensated for their lands.

While the Fund pulled back from such overt action after the Batwa fiasco they still do things that hurt the cause and are definitely harmful to the indigenous peoples of the area. A lot of people won't touch the Fossey Fund for these reasons. Can't say if Momma Fossey had this in mind over the will, but a lot of people in the conservation community hate these folks with a passion.

Cheers,
Mazo.

[Camille]

Originally Posted by Mazomaniac

Just to flush this out a little so people understand the scope of what I was talking about since it doesn't get a lot of media play in the west . . .

One of the things that the Fossey Fund has taken huge heat for is their stance on indigenous populations. They claim that they work with locals to relieve poverty that leads to poaching. At the same time, however, they take the position that any human activity inside a wildlife preserve (except for their money-raising tourism activity, of course) is destructive to the wildlife and needs to end.

Ah but Mazo, do you know why this is?
It's because primates (gorillas especially) are very susceptible to human diseases. They only have to be within a relatively short range of human feces and they can contract a virus relatively quickly and almost always die when they do. Their immune system cannot tolerate what a human being can. Fossey fired several staff who refused to take this seriously...so in that sense, there was definitely some logic to WHY she was doing what she did...but perhaps not so much in HOW she was doing it.

C xx

[Mazomaniac]

Originally Posted by Camille

Ah but Mazo, do you know why this is?
It's because primates (gorillas especially) are very susceptible to human diseases. They only have to be within a relatively short range of human feces and they can contract a virus relatively quickly and almost always die when they do. Their immune system cannot tolerate what a human being can. Fossey fired several staff who refused to take this seriously...so in that sense, there was definitely some logic to WHY she was doing what she did...but perhaps not so much in HOW she was doing it.

C xx

That humans and primates share certain diseases is (to some extent) true. The virulence and infection rate varies between primates but I agree with your basic premise that we share diseases with them and that the gorillas should be protected from infection with agents that aren't native or common to them.

What I don't agree with is your logic about how that serves as a reason to evict indigenous populations from a gorilla habitat. Humans and gorillas sharing that territory would have been equally exposed over the years to the same illnesses and would have developed equivalent immunity to them. The indigenous peoples who were displaced would not have posed an infection threat to the gorillas.

What does pose an threat are western tourists who bring in viruses that are not typical of that region. For instance, respiratory syncytial virus - a virus that leads to respiratory "colds" and is a common cause of pneumonia - is normally only a problem in equatorial regions during the rainy summer months. In temperate latitudes, though, you see much more RSV problems during the winter (our "cold and flu season"). The serotypes of the virus found in temperate climates are also different from those found in equatorial Africa. That means tourists are going to be carrying in RSV serotypes that the gorillas have less immunity to and are doing it at the time of year when they are not normally being exposed.

And RSV is just one isolated example. There are numerous infectious agents that are common in northern latitudes that you don't see at the equator. The risks are far greater than just minor agents like RSV.

If the Fund is really concerned about this as a threat then they are doing exactly the opposite of what they should be. The native population doesn't pose any real risk because, while they may serve as a reservoir of virus that could infect the gorillas, they also are carrying the viruses the gorillas will already have developed innate immunity to. Furthermore, the native people don't get near the gorillas so there's minimal chance of infection in the first place.

Not so with the Fund. They march as many western tourists through the preserve as they can every year and those tourists get right up in the face of the animals. If a gorilla is going to die from an exotic disease then chances are they're going to have caught it from a tourist, not a native pygmy.

So I agree that this is a potential problem, but it's also one more example of how the Fund is not following Fossey's legacy. As you noted, Dian was extremely picky about who got close to the animals. These days the Fund is hooked up with a private safari company that leads groups of tourists into the preserve to get as close to the animals as they can. You can just pop on their website and sign up. Dian's original intent may have been to protect the animals from disease. Now days that's been abandoned in the name of fund raising.

On a related note, one thing Fossey never stood for was holding animals in captivity. The Fund is now doing just that. They've built a "rehab center" for gorillas with funds put up by The Disney Company. Gorillas that are rescued from poachers are now sent to the center rather than being returned to the wild population. At the center they are in constant contact with humans - yet another thing that Dian herself would never have stood for. There are rumors that Disney paid for the project in exchange for rights to bring some of the animals back to the theme parks for display. That hasn't happened yet, but Disney put up a good chunk of change for the work. We'll have to see exactly what they got for their money.

Sorry to drone on about this but as you can tell I really, really despise what these people are doing. They're pretty much working against the core principles that every other conservation movement uses. I think that it's a sad state of affairs but money talks in Rwanda and the Fund has the government's ear. Until somebody with more cash can muscle them out we're stuck with whatever the Fund wants to do. It's really frustrating to the science community to see it happening this way.

Cheers,
Mazo.

[Camille]

Mazo:

I'm not saying that she was right to evict people...which is why I said that how she actioned her logic was very questionable. Sorry if I didn't make that clear. I'm just agreeing that there needed to be some seperation from humans for the reasons she (and plenty of others, even those that despised her) outlined. She had problems with indigenous and Western folks working for her who just didn't take that seriously...so at least she didn't just target just one group of people. However, if you don't balance the needs of parties on either side of a project like this you are going to run into serious trouble at some point...as she did.

It's clearly complicated and Fossey obviously wasn't an easy person to work with. I think her difficult nature ultimately made her a target for many things, ranging from her to death and will to her sponsorship deals and funding when she was alive.

This has been an interesting thread for me and I'm going to look at the art collection story too. Thanks everyone for adding to this...I've enjoyed it a lot

C xxx