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Clock is ticking in James Brown estate

Since 2011 citizen journalist Sue Summers has reported on developments in the fight over the estate of legendary entertainer James Brown.

The public has followed the court battle surrounding James Brown’s estate with a mix of interest and outrage.

The journey could be likened to Alice’s visit to Wonderland. Not everything is what it appears to be, and what is said today may have no relation to what is said tomorrow.

One thing is clear: James Brown intended to leave his music empire to an education charity for needy students in South Carolina and Georgia, the “I Feel Good” trust.

After his death in 2006, however, Brown’s companion Tommie Rae Hynie and some Brown children contested the will, demanding more. That led to the intervention of South Carolina Attorney General Henry McMaster, who worked a settlement deal.

Under the 2008 settlement, McMaster gave over half of what Brown left to charity to those who contested the will, even though Brown’s will and trust include in terroreum clauses that say: anyone who contests either document receives nothing.

Former trustees Adele Pope of Newberry and Robert Buchanan of Aiken appealed the McMaster settlement because it ignored Brown’s estate plan. In May 2013, the South Carolina Supreme Court agreed with the former trustees and overturned the deal, calling it a “dismemberment” of Brown’s noble estate plan.

The case was returned to Aiken for further proceedings, with a directive to follow Brown’s estate documents. That directive has been largely ignored. Brown’s trust documents required the appointment of three trustees, but in late 2013 the court appointed only one, McMaster’s appointee Russell Bauknight of Columbia.

Bauknight was returned as the sole trustee even though he had worked for four years not to uphold Brown’s estate plan, but in support of the McMaster settlement and in the interest of the settling parties (i.e., will contestants).

Curious questions

Some questions about the Brown estate appear “curious-er and curious-er,” among them:

In 2010 Bauknight and others brought a multi-million dollar lawsuit against the former trustees who appealed the McMaster settlement. All pleadings in the suit, brought by the Wingate law firm of Columbia, have listed the Attorney General as a plaintiff. In 2013, however, the Attorney General said he never sued, but in any case, he filed a motion to be dropped as a party. Why would he need to be dropped if he had never been a party?

Attorneys in the Wingate lawsuit have asked Richland County Judge Casey Manning to stay the case–not to hold hearings–until proceedings in Aiken are completed. The Wingate attorneys are in default in the lawsuit, and they wrote to the judge that they are no longer sure who their clients are. Yet, they argue that hearings must be stopped in the interest of “judicial economy.” After four years, how are further delays helpful?

In Sept. 2011, the Attorney General wrote to Judge Manning that he was ready and “more than willing” to release the contingency-fee contract with the Wingate law firm under which the Attorney General sued the former trustees. In a 2012 Freedom of Information Act (FOIA) lawsuit, however, the Attorney General claimed he never had a copy of the Wingate contract, nor did he ever have a signed copy of the Legacy Trust. The Legacy Trust was created by the Attorney General under the McMaster settlement, but the Attorney General’s trustee now claims it does not exist. If it does not exist, why is the Legacy Trust still a plaintiff in Wingate lawsuit?

South Carolina ethics policy requires clients to sign a contingency-fee contract. When the 40-percent contingency-fee contract with the Wingate firm was released in late 2013 by a federal judge, the only signatures on the contract were those of Bauknight and attorneys for the will contestants. Why is this suit being pursued, when it appears that it was not legally authorized?

Was Brown married when he died? The answer to that question will have a far-reaching impact on copyrights Brown gave to the charity. According to a longtime friend of Brown’s, a diary abandoned in the Brown home could provide “explosive” evidence that Hynie and Brown were not married and she knew it. Copies of the diary were widely circulated in 2007, but at the request of Hynie’s attorneys, the Aiken Court issued gag orders in 2008 to prevent anyone from talking about the diary contents. If the diary can help to protect Brown’s charity, why in May 2012 did the Attorney General ask the Court not to lift the gag orders, issued six years ago without a hearing?

In the 2010 Wingate lawsuit, Bauknight claimed on behalf of the settling parties—and the Attorney General—that former trustees had caused tens of millions of dollars in damages to the Brown estate. Yet, Bauknight filed documents with the IRS that claimed the world-wide music empire of James Brown was worth only $4.7 million at his death. That figure raises the question: how is it possible that the former trustees caused tens of millions in damages to an estate with a value of $4.7 million?

How is it possible that the at-death value of Brown’s music empire could be only $4.7 million? In anticipation of a loan to Brown, in 2006 the Royal Bank of Scotland valued the royalties alone at $42 million. Brown’s music empire includes not only the rights to 850 songs, but also the right to exploit his image. All previous trustees set the at-death value at closer to $85-100 million, and a $100 million offer was on the judge’s desk when the McMaster settlement deal was approved, according to previous filings.

The estate proceedings seem to confuse more than to enlighten, but one thing is certain: the clock is ticking.

Method to the madness?

This raises the question: is there method to the madness?

Brown had every reason to believe his estate plan was ironclad. His will and trust documents included in terroreum clauses that said anyone who contests either document will receive nothing. He spent years in the development of his estate plan, and he made a recording in which he talked about his plans.

He informed his children that they would be provided for, but would not receive everything they wanted. He had his companion sign three agreements that promised she would never make a claim against his estate, not even as a common-law wife. His previous will, from 1999, also could be used to prove his charitable intent. That will, too, left his music empire to education.

The Supreme Court opinion was as clear as Brown’s will. The Court did not believe the children’s claim of “undue influence” and did not believe Hynie to be Brown’s wife, citing Lukich v. Lukich as an important consideration. In that case, the Court ruled a second marriage is not valid unless an annulment or divorce occurs prior to the ceremony. Hynie and Brown exchanged vows in 2001, but her 1997 marriage was not annulled until 2004.

According to online sources, under the South Carolina Probate Code, a will that is offered for probate more than 10 years after death cannot be considered. Recent filings in the South Carolina Court of Appeals suggest that the current Brown trustee is doing nothing to protect the 1999 will, a valuable back-up to Brown’s 2000 estate plan. Both the 1999 and 2000 wills leave Brown’s music empire to the “I Feel Good” charity.

Delays, stays and legal contortions have become the hallmark of the James Brown estate cases, which now involve over 90 attorneys—a number of them, at taxpayer expense.

Attorney General Alan Wilson is still a party to the Wingate lawsuit, and he continues to fight alongside Bauknight and Hynie to prevent the release of documents under the FOIA—documents that could help to end the madness.

Or perhaps, is that the point of the fight?

As the rabbit might say: it’s late, it’s late.

Featured image: Shutterstock.com 

Sue Summer

Sue Summer is a journalist from South Carolina. She has extensively covered the legal battle over James Brown's estate.

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