‘‘WEL on the Street’ is a weekly blog series published by WEL Partners focusing on estate litigation in the news and popular culture. It’s your one-stop-shop for newsworthy estate gossip, covering high-profile cases making waves in the estate world and beyond.

Kicking off

As Tom Brady looks to capture his record-setting seventh Super Bowl Championship in a showdown this week against the Kansas City Chiefs, a different sort of battle is brewing in a Colorado Courthouse which could have a dramatic impact on the landscape of the multi-billion-dollar National Football League and its ownership group.

The NFL is the most profitable pro sports league in North America. It generates around 15 billion dollars per year, bringing in massive profits for the uber-powerful owners of its 32 franchises. Each team is worth billions of dollars.

Obviously, this makes control over an NFL franchise an extremely lucrative venture. Many of the teams are family-owned-and-run, passed down from generation to generation, creating massive empires of wealth for the families that own them (see: the Rooney Family who own the Pittsburgh Steelers or the Maras who own the New York Giants).

Such is the case for the Bowlen Family, who own the Denver Broncos. In 1984, Pat Bowlen and his two brothers, John and Bill, bought the Broncos for a measly $75 million. Today, the team is worth over $3 billion.

Pat thought that he had in place a solid succession plan that would see the team seamlessly passed down to one of his surviving children when he died, by way of an inter vivos discretionary trust that Pat made around 10 years prior to his passing. He was wrong.

Sadly, after Mr. Bowlen’s death in 2019, litigation ensued between his kids and trustees who are fighting over control of the team. The litigation stems from allegations that Pat was not mentally capable when he made his estate plan and his succession plan for the team is therefore invalid.

A Contested Turnover

In addition to being the team’s majority owner, Pat Bowlen was the Broncos’ CEO until he stepped down in 2014 because of health concerns relating to Alzheimer’s and dementia. Since that time, control of the team has been vested in three trustees who were appointed by Pat himself and empowered with full decision-making authority to manage the team on his behalf.

It was always Pat’s intention that one of his seven children (two from his first marriage and five from a second marriage) would eventually inherit the team following his death.

However, Pat never actually specified which of his 7 kids he wanted to take over the Broncos. He ultimately left this choice up to his trustees.

In 2009, Pat settled a trust that would control the team after he resigned and he authorized his trustees to decide which of the seven kids would inherit the Denver Broncos upon Pat’s death. The trust conferred essentially unfettered discretion upon Pat’s trustees in making this selection.

The three trustees ran the Broncos operation from 2014 until Pat’s death in August, 2019. At which time the trustees announced their decision that one of Pat’s daughters from his second marriage, 30-year old Brittany Bowlen, would be the next controlling owner of the Broncos.

This decision came after Mr. Bowlen’s two daughters from his first marriage, Beth and Amie, had expressed their interest in running the team back in 2018 (before Pat’s death). At which time the trustees exclaimed it was their view that Beth and Amie were “not capable or qualified” to take over as owners of the Broncos.

The trustees went on to select Brittany as the next owner of the Broncos and have since given Brittany a position among the team’s management to groom her for that role.

This was not received well by Beth and Amie.

The elder Bowlen children proceeded to file a lawsuit contesting the validity of Pat’s trust on the grounds that Mr. Bowlen was already suffering from advanced Alzheimer’s when he made the trust in 2009 and he lacked to requisite capacity to settle the trust or was unduly influenced to do so. If successful, the lawsuit would wrestle control of the team away from the trustees and invalidate Pat’s estate plan.

Beth and Amie assert that medical records and corroborative evidence provide “substantial and overwhelming evidence that Mr. Bowlen lacked the required capacity in 2009” when he settled the trust. Meanwhile, the trustees contend that Pat knew exactly what he was doing when he made the trust, and that the lawsuit is simply an attempt by Beth and Amie to override the trust and is contrary to the testamentary intentions of Pat.

Interestingly, Pat’s trust and estate plan reportedly include a “no-contest” clause, which prohibits the beneficiaries of Pat’s estate from challenging his testamentary plan. This means that if Beth and Amie’s challenge fails in court, they could be disinherited from Pat’s estate entirely if found in violation of the “no-contest” clause.

Fourth Quarter

The trial of the Bowlen case is scheduled to take place over 5 weeks beginning in July, 2021.

Ultimately, as in most will challenges and capacity-focused litigation, the lawsuit will hinge on the strength of the evidence presented by both sides, and in particular the medical evidence and legal files available that speaks to Pat’s capacity or lack thereof when he gave instruction for and settled the trust.

Beth and Amie will have to produce convincing evidence – including health care records, expert reports and witness testimony – capable of convincing a judge that Pat Bowlen’s cognitive decline in 2009 was such that he was not able to fully comprehend the nature, meaning or effect of his estate planning decisions when the trust was settled. Alternatively, Beth and Amie will have to show that Pat’s mental state was so compromised at the time, that he was vulnerable to being unduly influenced and was, in fact, pressured by others into making the trust against his will.

On the other hand, Pat’s trustees and his lawyers that helped draft the trust must show that Pat was of sound mind when his estate plan was settled, and that the decision to make the trust was Pat’s alone.

The Bowlen case is yet another reminder for estate planners and will-makers to keep meticulous notes and records detailing the period during which an estate plan is drafted and executed. This includes both medical and solicitors’ files. Which notes and records should confirm that the will-maker’s capacity was duly assessed and confirmed around the time the testamentary plan was made. The keeping of such records could help protect the estate from a potential challenge down the line.

The Bowlen case also provides an important lesson for those contemplating their estate plan and their families: it is not only crucial to draft and execute these plans while the testator is still capable and before the onset of cognitive decline that may accompany advanced age; it is similarly important for a testator to discuss their plan and review their intentions with their family members while the testator remains capable of having such discussions. While talking to loved ones about one’s wishes in the event of their death is never an easy conversation to have, such conversation and the mutual understanding amongst family that can result from these talks could prevent misunderstandings, conflict and even litigation in the future.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.