January 12, 2007
BEECH ISLAND, S.C.---More controversy today over James Brown's will.
The singer's attorney says the woman claiming to be his wife, Tomi Rae, and her son, James Junior, are not included.
However, there could be legal grounds for her to lay claim to part of James Brown's estate.
There are several areas in South Carolina's code that could give Tomi Rae and her son part of the estate, no matter what the will says.
A legal analyst tells us it's all complicated...and the battle could go on for years.
James Brown's will calls for everything from his music rights to his Beech Island estate to be divided equally among his children. But does that include Tomi Rae's son, James Junior?
"You can have a will and if it just says 'my children', the question is, who's that?" said 22-year legal veteran attorney Peter Flanagan. Flanagan says that vague wording makes the decision tricky.
South Carolina code says even if James Junior is not listed by name, the law is on his side. Section 62-2-302 gives children an automatic claim to a portion of what's left behind.
"The child, and his guardian or conservator acting for him, may claim a share as provided by this section..."
But for that to apply, James Junior has to be Brown's legal son...meaning Brown and Tomi Rae had to be married. That has recently come into question, since some documents show Tomi Rae was still married she and Brown wed.
"Even if one or both of the parties cannot marry, if you have a formal wedding ceremony, the child is still considered a child of both parents," Flanagan said.
Meaning as long as there is a ceremony, the son is legal.
"...the surviving spouse has a right of election to take an elective share of one-third of the decedent's estate..."
The South Carolina code also guarantees the surviving spouse one-third of the inheritance. But for Tomi Rae to get that, she has to prove in court that the marriage was legitimate.
"When you're dealing with large estates and large sums of money, you'll have a lot more fighting," Flanagan said.
But all that fighting might not make much of a difference.
"When a person makes a will, they can only give away those items they own," Flanagan said.
And if the estate is, in fact, in an irrevocable trust, a trustee--not Mr. Brown--owns everything. That means whether Tomi Rae and James Junior have legal ties to Brown might be irrelevant.
With all these questions, there could be a long legal road ahead.
We can expect more details about what's in the will when attorneys file it in probate court. That has to happen by January 24.
Phone calls to attorneys on both sides went unreturned.