Gene Upshaw, one-time Oakland Raiders Hall of Fame lineman and head of the NFL Players Association for 25 years, died in August 2008. He led the union through a strike, decertification, the victory of free agency, soaring player salaries and disputes with retired players.
Upshaw was married for the second time and had three sons, Eugene III from his first marriage, and Justin and Daniel from the second. Upshaw, his wife Terri, and another couple, Norman and Sandra Singer, arrived in Lake Tahoe for vacation. Upshaw suddenly became ill and went to the emergency room where he was diagnosed with pancreatic cancer on August 17, 2008. He was hospitalized and died 3 days later at the age of 63.
On the day he died, August 20, 2008, Gene Upshaw’s will was signed, according to court filings. It left everything to his wife Terri.
Son Eugene III arrived in Tahoe the day after his Dad was hospitalized – he had planned on joining the vacationing couples. In Eugene III’s court filing, he said that by early August 2008, his Dad "had deteriorated substantially. . . He was not coherent, and was not speaking." How could his will have been signed that day?
Eugene III contested the will and sought to have his step-mother removed as executor. It came out that Mr. Upshaw didn’t sign his will. One of the witnesses signed it on his behalf. The fact that he did not sign the will is unusual, but not in itself a reason to overturn the will. Most states (including Pennsylvania) have a statute of wills that includes the alternative that a valid will may be signed by the testator or by some person in his presence and at his direction. There were a number of problems in Upshaw’s case, however. First, one of the witnesses was also the one who signed the will on behalf of Upshaw. Second, according to Eugene III, on the day Upshaw died and the will was also signed, he lacked all capacity to make a will.
The witness and signer of the will was Upshaw’s friend who went on vacation with him, lawyer Norman H. Singer. The litigation here was to contest the will and remove Terri as executor. Norman Singer was not sued.
The trial was scheduled for May 2011 (almost 3 years after death) but was settled by a confidential agreement a few days before it was to begin.
One of the assets that was uncovered was a previously undisclosed $15 million deferred compensation that the union paid to his surviving wife, Terri Upshaw. Retired NFL players, who were angry with Upshaw for not getting them better pensions and medical benefits, were outraged. Upshaw’s estate also apparently received $1.73 million in "past due compensation." The Upshaws lived in a home in Great Falls, Virginia. The probate inventory showed eight luxury vehicles, a 32-foot boat, and another home in Lake Tahoe, California.
When the will was submitted to probate in Fairfax County, Virginia; both Norman and Sandra signed a document in which they answered "yes" to the question: "Did the decedent sign this paper in your presence and in the presence of other witness(es), with all of you together at the same time?" When they were deposed, the Singers changed their answer to "no" and acknowledged that Norman Singer had actually signed it. What a mess.
If Upshaw had died intestate, his widow would have received a 1/3 share of his estate, and 2/3 would have gone to his children. That would have given a 2/9 share to son Eugene III. Which side do you like in this argument? If I had to bet, I’d say that Eugene walked away with a big chunk of his 2/9 share.
Certainly his is an interesting story, but here is my question. How can a 63 year-old man with a second wife, 3 children from two marriages, and a net worth of more than $20 million not have a will? Seriously.
A 2009 Wills and Estate Planning survey commissioned by lawyers.com found that only 35% of adult Americans currently have wills and only 29% have powers of attorney. Another survey found that 32% of respondents would rather have a root canal than make a will.
Please make a will. It is not too expensive. You have enough assets to plan for no matter how small your estate is. Signing a will does not hasten your death. You can die at any age, you don’t have to be old. Really.