Sue Summer For The Observer
November 13, 2013
NEWBERRY COUNTY — Another skirmish in the James Brown “estate wars” was fought Nov. 6 and the May 8 opinion of the S.C. Supreme Court was ignored again.
At the Aiken hearing, Judge Doyet Early said three issues remain to be litigated in the estate: Was there a valid marriage between Brown and his companion, Tommie Rae Hynie? Is Hynie’s son, James II, James Brown’s child? Was Brown “unduly influenced” while writing his estate plan?
The Supreme Court opinion raised strong doubts about the validity of all three claims, suggesting that Brown’s estate plan should be carried out as written. None of the 10 or more attorneys at the Nov. 6 hearing, however, asked why the judge is ignoring the Supreme Court ruling and giving those who contested the will another opportunity to take assets from Brown’s education charity.
Under Brown’s estate plan, his music empire was left to the “I Feel Good” education charity for needy students in South Carolina and Georgia. Brown also established $285,000 education trusts for some of his grandchildren, and he left household goods to six children named in the will. He left nothing to his companion, Tomirae Hynie, or her son.
Both Brown’s will and trust include clauses that anyone who contests, receives nothing. Even so, five of the six children named in the will — and Hynie — contested Brown’s estate plan after his death on Christmas Day in 2006.
As the second set of trustees were mounting a defense against the will contests, former Attorney General Henry McMaster brokered a 2009 settlement deal that gave those who contested the will over half of the music empire Brown had excluded them from inheriting.
Former trustees Adele Pope of Newberry and Robert Buchanan of Aiken appealed the McMaster deal, represented by Columbia attorney Jim Richardson, who served pro bono. In May, the Supreme Court overturned the deal, calling it a “dismemberment” of Brown’s estate plan.
The Supreme Court returned the case to Aiken for further proceedings, but strong language in the opinion leaves little doubt as to the Court’s answer to the three questions Judge Early raised:
1) The validity of the marriage: “As to the spousal claim, even if Tommie Rae were able to establish a claim as Brown’s surviving spouse, she executed a prenuptial agreement in which she … waived all rights to Brown’s property or any statutory claims against his estate.” The Court also noted a “major impediment” to her spousal claim, namely her marriage to another man when she exchanged vows with Brown.
2) The claim of the omitted child: This “…was not supported by a properly authenticated DNA test, even though one had been offered …, and Brown himself had previously requested a DNA test during his relationship with Tommie Rae.” Even if James II passed the DNA test, an omitted child is not entitled to a statutory share if it appears the omission was intentional. The Supreme Court believes that to be the case here, given the strong language in Brown’s estate plan that any omission was not made by accident.
3) Undue influence claim: “In sum … the primary claim … (of) undue influence, was of dubious validity…” The Court further stated, “we do not believe the cobbling together of tenuous claims can be the basis for a good faith finding that would justify the drastic results sanctioned here.”
The Supreme Court also issued directives on trustee appointments and accountings that have been ignored by Judge Early.
Early was instructed to appoint trustees “in accordance with the … estate documents,” which required the appointement of three trustees. Recently, however, Early appointed only one trustee, Columbia CPA Russell Bauknight.
Bauknight was chosen by the AG’s office as the sole trustee four years ago. The Supreme Court declared his appointment void but allowed him to reapply. During interviews for the trustee positions, Bauknight announced he would refuse to serve if Early appointed other trustees, as directed by Brown’s estate documents and the S.C. Supreme Court.
The Supreme Court also instructed Judge Early to review all fees, including attorneys’ fees and trustees’ fees, but Bauknight has refused to release complete financial records — and has refused to release fee agreements with attorneys he has engaged to handle matters related to the Brown estate.
Bauknight and AG Alan Wilson have also refused to release the agreement under which the Wingate law firm in Columbia was retained to bring a multi-million dollar lawsuit against Pope and Buchanan.
In the lawsuit, Bauknight, the AG, Hynie and some of the Brown children allege the former trustees caused tens of millions of dollars in damages to the estate — even though Bauknight has claimed to the IRS that the music empire was worth only $4.7 million when Brown died.
In a letter dated May 18, 2010, McMaster confirmed Bauknight was engaging the Wingate law firm, using the AG’s standard litigation retention agreement. That agreement provides for contingency lawsuits in which attorneys take a percentage of what they can recover.
After his recent reappointment, however, Bauknight revealed 2012 payments of over a half -million dollars from the estate to the Wingate firm for continuing to pursue the lawsuit against Pope.
One indication as to the weakness of the lawsuit is that when Buchanan settled with the estate in 2012, he owed no damages in the Wingate lawsuit and the estate paid him $500,000 for his service as trustee.
Judge Early has said he is starting proceedings from “square one,” and on Wednesday, attorneys for Hynie asked to sever two cases that had been consolidated early in the proceedings.
According to Hynie’s attorney Alan Medlin of Columbia, the suits involve different issues. In one action Hynie claims she was Brown’s spouse and is entitled to an elective share of his estate. In another action, she contests the will, claiming Brown was “unduly influenced” while writing his estate plan.
The elective share claim involves two issues, Medlin said. “Is someone a surviving spouse, and has that spouse the right to an elective share?”
Hynie claims she is entitled to a spousal share of Brown’s estate, even though she was married to another man when she and Brown exchanged vows in 2001 and she signed three documents in which she agreed never to claim a part of his estate.
Speaking for Brown’s son Terry, attorney David Bell of Augusta argued against severing the Hynie cases and in favor of carrying out James Brown’s estate plan as written. Bell further argued that the question of whether Hynie is Brown’s wife is critically important for future royalties under the Federal Copyright Act.
Louis Levenson of Atlanta, attorney for four children who are contesting the will, objected to Bell’s discussion of the Federal Copyright Act.
Attorney John Beach of Columbia represented David Sojourner, who was recently appointed by Judge Early as “limited special administrator” for the sole purpose of defending against the will and trust challenges. Beach took no position on severing the Hynie cases, but he did have questions about the extent of Sojourner’s authority to handle other cases related to the estate.
Beach did not ask Judge Early to lift gag orders that prevent any discussion of the “Hynie diary.” According to a longtime friend, the diary contains evidence that Hynie was not Brown’s wife and she knew it. Hynie’s attorneys have admitted that lifting the gag orders would cause “irreparable harm” to her spousal claim.
Not represented at the hearing were a number of Brown’s children, including son Daryl, who has launched a national campaign to save his father’s estate plan. Also not represented were three DNA-proven daughters and the seven grandchildren to whom James Brown gave $285,000 education trusts. These seven education trusts were destroyed by the McMaster deal but reinstated in the May 8 Supreme Court decision.
No representative of AG Wilson spoke. At the AG’s request, he was removed as a party in the Aiken County proceedings in an order filed the day of the hearing.
Judge Early ruled to separate the Hynie cases but to consolidate discovery. Beach was asked to work up a scheduling order within 15 days.