10:46am PT by Eriq Gardner
Sumner Redstone Nearing Trial Over His Massive Fortune
Sometime soon, Sumner Redstone could make history in California by becoming the first living individual in the state to go to trial over the massive fortune he’ll be bequeathing when he dies. A trial was set to begin on July 16, but on Monday after a last-second petition to an appeals court, a judge temporarily put the trial on hold. Nevertheless, in a case that has seen several surprising twists recently, the trial stands a good shot at going forward within the next few months.
The 95-year-old media titan is battling Manuela Herzer, a former longtime companion who was kicked out of the billionaire's Beverly Park mansion in 2015 and largely removed from a trust that had once entitled her to at least $70 million in money and property. Herzer has responded to the ousting with a wrath of litigation alleging that Shari Redstone secretly spied on her, disrupted her relationship with the senior Redstone and interfered with her expected inheritance. Herzer even has a pending racketeering case in federal court against Shari and Sumner’s grandson Tyler Korff.
After a Los Angeles judge largely rejected Herzer’s interference claim against Shari because the plaintiff had a remedy in probate court, Hezer filed a petition there to invalidate the 40th Amendment to Redstone’s Trust — the one that provided her with a fortune. That probate case was then assigned to Los Angeles Superior Court Judge David Cowan, the same one who cut short a 2016 trial that examined Herzer’s efforts to make health decisions for Redstone. Sensing a potentially unfriendly judge and a quickly advancing trial that would get in front of her other lawsuits, Herzer voluntarily dismissed her probate court petition earlier this year.
Then, rather extraordinarily, Redstone filed his own petition. He wanted to move forward to erase all doubt about his testamentary intent.
With the trial just about a week away, Herzer made her own calculated bid to stop it. On Friday, she filed a writ petition at a California appeals court with the seemingly stunning admission that Redstone "is still competent."
Most states don’t allow so-called “pre-death trust contests,” but thanks to the 2013 appellate decision, Drake v. Pinkham, there may now be an avenue in California for one in instances where there's a dispute about the incapacity of the settlor of a trust. (In court papers, both sides refer to Drake without identifying any follow-up cases, while legal sources can't identify any probate trial in California involving a trust and a living individual.)
Ronald Richards, attorney for Herzer, is attempting to distinguish this present situation from Drake by noting in his appellate papers that "Herzer has not contested Redstone’s competence in this action," never mind how Herzer previously alleged that Redstone lacked mental capacity and was susceptible to undue influences. According to Richards, it’s premature to fight over a revocable trust that can be further amended. He asserts that Redstone is seeking a “comfort order,” that his client lacks standing to presently challenge the Redstone Trust and that Judge Cowan doesn’t have jurisdiction to make an “advisory” opinion on the validity of the Redstone Trust. The other side sees this as gamesmanship to avoid the very judge who ruled against Herzer two years ago.
That 2016 trial garnered enormous publicity and ended abruptly after an infamous deposition showing Redstone calling Herzer a "fucking bitch." At the time, Cowan focused on what was best for Redstone in deciding his present medical care and didn't reach the issue of Redstone's mental capacity and whether he's vulnerable to undue influence.
That's what this coming trial would explore. It's a case that has almost completely escaped press attention until now. Among those who may testify are Shari and many of her father’s caretakers. It seems unlikely that Redstone himself will offer new testimony via deposition or even show up at trial.
On Monday, the parties gathered before Cowan to discuss the implications of Herzer's last-second appellate petition. Richards argued to postpone the trial date, and the judge agreed that it would be best to at least allow a California appeals court to respond to Herzer's writ petition. That doesn't mean that the appellate court will actually agree to review the case. A decision from the higher authority may come in the next couple of months. If the writ is denied, presumably the trial would move forward quickly thereafter.
Richards tells The Hollywood Reporter that he doesn’t think any trial determination will be worth much while not commenting on what evidence if any he plans to present if it should move forward. Redstone's side plans to introduce witnesses and evidence.
If Cowan ultimately finds that Redstone didn't lack mental capacity and that Herzer was properly removed from the trust, it could undercut Herzer’s other cases against Shari and Tyler, including the racketeering one that is the focus of a separate hearing on Monday afternoon on whether that case should move forward. In the racketeering case, Herzer alleges a concerted scheme led by Shari that unraveled Herzer's long-standing relationship with Redstone. If Herzer was properly disinherited, though, it could poke a big hole in Herzer's claim on how the alleged malfeasance caused her to suffer economic harm. Then again, Richards says he has other damages theories.
The upcoming trial may also impact future post-death challenges to Redstone's bequeathments by potentially establishing some findings that set up res judicata (already determined) arguments. Or perhaps Judge Cowan will surprise everyone by coming to a conclusion that Redstone indeed was not competent when he sliced Herzer from the trust. Whatever happens, it would hardly be the last event. Either side could appeal Cowan's order. Meanwhile, in recent weeks, Redstone has taken care of other potential challenges to his trust, including settling with Sydney Holland, another one of his former girlfriends.
Update 7/30: Herzer's appellate petition has been denied. A new trial date could be scheduled soon.