The Department of the Treasury and the Internal Revenue Service released new guidance that is “designed to expand the use of income annuities in 401(k) plans.”
July 13--This much is clear from the court records on file in Judge Christopher E. Krueger's Sacramento courtroom: Kenneth Pawlowski, a prominent Sacramento-area veterinarian, was having dinner at Ruth'sChris Steak House with his friend, attorney Kenneth L. Rosenfeld, and their wives on the evening of March 12, 2011. Pawlowski's cellphone buzzed, and on the other end was a nurse from the Eskaton Care Center skilled nursing facility in Greenhaven. She told Pawlowski that a third friend of the pair, Joseph Herb O'Brien, 74, appeared to be nearing the end.
Five days earlier, O'Brien, with bad kidneys and restricted aortic blood flow, suffered a fall that put him in the hospital, according to testimony contained in the court file. Two days earlier, he had given his power of attorney to Pawlowski, to modify his estate plan.
What happened next remains a matter of debate: Pawlowski and Rosenfeld would later testify that, immediately after getting the call, they left the restaurant on Fair Oaks Boulevard for the Eskaton facility on Florin Road. When he arrived at the bedside, Rosenfeld said in court documents, O'Brien told him, "I'm going to die," and that he wanted to dictate a new will. Rosenfeld said he ran out to his car, got a pad of paper and took the final request.
That new will -- in just 50 words -- left everything to Pawlowski, except for $10,000 O'Brien set aside for his stepson. The one-paragraph, handwritten will, signed with an "X" on a single sheet of paper from a legal pad, replaced a previously established trust under which the stepson, Glenn Scott Slattery, 44, was the primary beneficiary.
O'Brien was right. He did die, within minutes of Rosenfeld's visit on that March evening.
Three years and two trials later, the will remains the subject of a fierce probate fight in Sacramento Superior Court. Lawyers for the stepson and O'Brien's brother have challenged the will as a fraud. They contend O'Brien didn't have the mental capacity to amend the original trust.
Judge Krueger took the case under submission for the second time on June 12. Five days later came news of a house fire on East Country Club Lane in Sacramento's Arden area. Inside the residence, firefighters rescued a critically injured man, Christopher Heard, the owner of the house and a forensic psychologist who had emerged as a key witness in the probate case.
According to his testimony in the case, Heard had visited O'Brien in the hospital two days before his death. He told the court that Rosenfeld had referred him to Pawlowski, and that Pawlowski asked him to evaluate O'Brien's mental state, a process known as a "testamentary competency evaluation." He said he found O'Brien "really incoherent" during the visit, and unable to submit to the exam.
Heard, 63, never recovered from the injuries he sustained in the June 17 fire. He died the same day. Sacramento Metro Fire continues to investigate the cause of the blaze, and has not determined whether it was arson. The Coroner's Office has not issued a cause of death, pending the results of toxicology tests.
Law enforcement officials are waiting for the results of both probes. Meanwhile, intrigue builds around the case that once again is in Judge Krueger's hands.
Card table buddies
Born in Buffalo, N.Y., in 1936, Joseph Henry Biedrzycki changed his name to J. Herb O'Brien as a young man and went into sales, according to his brother, James Bryan, a retired Marine lieutenant colonel who lives in Melbourne, Fla. A job with Aerojet brought O'Brien to Sacramento, according to his brother, where he lived for at least 17 years and gained a general reputation for affability.
"Everybody liked Herbie," his brother said in a phone interview.
O'Brien bought a house, property records show, in a tidy Greenhaven neighborhood on Brickyard Drive in 1994. His brother said he liked eating out and playing poker.
The petition for probate filed by Pawlowski did not list an estimated value of O'Brien's estate, but a trustee's accounting as of last Aug. 31 in a companion matter listed it at $611,000. The Brickyard Drive home has since appreciated in value, according to property records.
According to Rosenfeld, Pawlowski was one of O'Brien's poker buddies and closest friends -- he served as best man at Pawlowski's wedding. Pawlowski, 50, is chief of staff at the Banfield pet hospitals in Folsom and Lincoln, and is frequently quoted in the media on how to keep pets safe and healthy. In 2003, he was named Outstanding Veterinarian of the Year by the California Veterinary Medical Association.
Rosenfeld, another card table regular with O'Brien and Pawlowski, is one of the most recognizable criminal defense lawyers in the Sacramento courthouse. He sports sharp pin-striped suits and slicked-back hair, and boasts a client list that has included high-profile murder defendants, sexually violent predators and a juror who came under scrutiny in a 2010 gang beating trial for posting his thoughts about the case on Facebook.
O'Brien had married four times, according to his brother, and one of those wives brought Glenn Slattery into his life, her child from a previous marriage. When Slattery's mother died in 1998, "Herb took a greater interest so that Glenn had a parent or someone to turn to," his brother said.
Slattery had some legal problems over the years, according to court records. In 2008, he was arrested in Kings County and charged in a 36-count complaint with vandalism, terrorist threats and burglary, among other offenses. The charges stemmed from Slattery's dispute with an ex-girlfriend over his right to visit their daughter. In February 2009, he pleaded no contest and was sentenced to five years' probation. Rosenfeld represented him in the case.
John Kessler, the Oakland attorney representing Slattery in the two probate trials, conceded in court documents that Slattery's troubles made the trustee of the O'Brien estate "uncomfortable." The trustee, Paul Kinney, testified he had advised O'Brien on three separate occasions to remove Slattery as the beneficiary of the trust, or risk his quitting as trustee. O'Brien had agreed to do so in 2008, Kinney told the court.
Slattery was still listed as beneficiary on March 7, 2011, when O'Brien fell at his home and was admitted into Kaiser South hospital with back pain, restricted blood flow to his heart and shortness of breath. According to medical reports filed in the probate case, the doctors gave him less than six months to live.
O'Brien apparently thought the prognosis optimistic. Still in Kaiser the day after the fall, he called Pawlowski to say he needed to get his financial affairs in order immediately, according to the veterinarian. "He said he had three to five days to live," Pawlowski testified at the second trial.
'A mere scrivener'
Three days later, on March 11, O'Brien was transferred to the Eskaton nursing facility. At 9:10 p.m. the following night, Eskaton personnel noted that O'Brien's condition had deteriorated, according to medical records filed in the probate case.
Nurse Encarnacion Arenas noted in her report that O'Brien had "an altered mental status." By that, she testified in the second trial, she meant "he's disoriented to person, place, time, situation -- lethargic." Asked if she thought O'Brien was capable of carrying on a lucid conversation, Arenas replied, "No."
Her report stated that O'Brien's oxygen saturation level had dropped to 81 percent, meaning his vital organs were in danger of shutting down. She said she gave O'Brien oxygen and called Pawlowski, who held his friend's power of attorney over health care decisions. Pawlowski's cellphone records show he took the call at the steakhouse at 9:20 p.m. and that it lasted four minutes. That put his and Rosenfeld's departure time from the restaurant at around 9:24 p.m.
During testimony at the probate trial, Rosenfeld said that when he arrived at Eskaton, his friend was pale, weak and prepared to die. Pawlowski's lawyer, Jerry L. Guthrie, said in court papers that O'Brien asked Rosenfeld "to do a favor" and "write something down for him." Rosenfeld said he got the paper, came back to the room, and with Pawlowski talking to medical personnel outside the room and no other witnesses present, wrote out the dying man's dictation:
"I, Herb O'Brien, being of sound mind have asked Ken Rosenfeld to write my last request," Rosenfeld wrote. "This is my final will and trust, no other is valid. I leave all my property to Ken Pawlowski. I also direct Ken Pawlowski to give Glen Slattery the sum of $10,000 U.S. Dollars."
"He acted solely as a friend and as a mere scrivener," Guthrie wrote of Rosenfeld in his court brief.
Rosenfeld said he had taken the statement by the time paramedics arrived, which according to medical reports, occurred at 9:42 p.m. They put O'Brien on a gurney and wheeled him to the ambulance. He never made it out of the parking lot, and was pronounced dead at 9:59 p.m.
A pivotal phone call
Pawlowski filed the will on May 25, 2011. O'Brien's brother, the retired Marine, challenged it on Sept. 2. Slattery's challenge came on Sept. 9, but under unusual circumstances: On June 1, 2011, a week after Pawlowski filed the will, probation officers -- under the terms of Slattery's conviction in the Kings County case -- conducted a search where he was living at O'Brien's residence on Brickyard Drive. The search turned up 3 grams of methamphetamine and a crank pipe. They took Slattery into custody, and on Nov. 23, 2011, a Kings County judge revoked his probation and sentenced him to eight years and four months in state prison.
He has pressed the probate case from his cell in Arizona, where he is serving his time as an out-of-state transfer.
In the first trial, in 2012, Slattery and his lawyer argued it would have been impossible for Rosenfeld, driving alone in his Hummer, to travel the 15 miles from the steakhouse to Eskaton, see O'Brien at his bedside, return to his car for paper and come back to take down the dying man's final wish -- all in the 18-minute time frame between 9:24 p.m., when Pawlowski terminated the phone call with Eskaton, and 9:42 p.m., when the emergency medical personnel reported that they arrived in O'Brien's room.
The judge disagreed.
"The four simple sentences set forth in the will would not have taken much time to dictate, particularly for a man who knew he was dying and wanted to resolve his affairs before passing," Krueger wrote in his April 29, 2013, statement of decision on the first trial. "There is simply no evidence that contradicts Mr. Rosenfeld's account of receiving dictation to the will."
Pawlowski and his wife, Kristi, the judge noted, had been friends with O'Brien for years and had tried to help him with his legal and financial planning, especially in O'Brien's dealings with Slattery. The judge approved the will as recorded by Rosenfeld.
Less than a month later, on July 3, 2013, Slattery's lawyer retrieved a message on his answering machine. In a halting voice, the caller said he had information he thought would be of value, according to a transcript contained in the court file. He identified himself as Clark Head, an attorney who once practiced law with Rosenfeld.
Head was still working with Rosenfeld at the time of O'Brien's death, he said, and "happened to know" that Rosenfeld had sent a psychologist to evaluate O'Brien's mental state just days before his death. He identified the psychologist as Christopher Heard, who had done work for Rosenfeld. Head also said that he knew the psychologist had reported back to Rosenfeld his finding that O'Brien was "not competent."
Kessler contacted the psychologist, who at the time said he didn't recall the visit, according to court documents. A week later, Head, the attorney, received a letter from an attorney for Rosenfeld threatening a defamation lawsuit.
"Mr. Rosenfeld assures me that the facts as presented by you to Mr. Kessler are false," said the July 17, 2013, letter from attorney Elizabeth M. Roth. Yes, Roth said, Rosenfeld knew of Heard's visit to O'Brien, but it came "at the request of Kenneth Pawlowski."
On July 25, 2013, Kessler filed a motion for a new trial, citing the revelations about the psychologist's visit as significant new evidence. He noted that both Rosenfeld and Pawlowski had testified that they knew nothing about "statements or evidence concerning (O'Brien's) mental capacity prior to the alleged execution of the Will ..."
Asked during trial if steps had been taken to perform a competency evaluation, Pawlowski said, "They hadn't been, but ... I planned to do that."
In a deposition before the first trial, Kessler also asked Rosenfeld if he "had received or caused to be taken any statements or evidence of Mr. O'Brien's mental capacity" in the five days before the man died. Rosenfeld replied, "I have no knowledge of that."
The new information showed that Rosenfeld and Pawlowski "repeatedly misrepresented and concealed ... information material to the ultimate facts at issue in this case," Kessler wrote in his motion for a new trial.
In a sworn declaration, filed in opposition to Kessler's motion, Pawlowski said he recalled that "I did contact Dr. Heard about having an evaluation done." He said the psychologist made the visit but could not conduct the examination. O'Brien "was weak and very tired" after a dialysis treatment and was "not up to holding a conversation," Pawlowski stated.
Judge Krueger, in ruling on the bid for a new trial, wrote that Pawlowski, in his sworn declaration, was essentially "impeaching his own trial testimony."
He also cited a sworn declaration by Head, the attorney, saying Rosenfeld had told him that psychologist Heard met with O'Brien and found him to be incompetent. And the judge noted a second declaration by a legal research assistant in the office, Marilyn Mobert, who said that Heard, while in the office waiting to speak with Rosenfeld, had told her that "Mr. O'Brien was 'out of it.' "
The weight of the statements, the judge said, "raises doubts about whether Mr. O'Brien had capacity to make the will."
"It also raises questions ... that relate to the credibility of witnesses at trial," Krueger wrote. "These questions are particularly relevant because the court based its prior judgment on its findings that Dr. Pawlowski, Mrs. Pawlowski and Mr. Rosenfeld were credible."
On Aug. 30, 2013, he granted the motion for a new trial.
A man's last wishes
"Look, I'm just going to flat-out ask you," Kessler told Pawlowski in May, on the first day of the second trial. "Were you trying to hide the fact that Dr. Heard tried to evaluate Herb O'Brien? Were you trying to hide that from us? Were you trying to hide that from the court?"
"I was not trying to hide it from the court," Pawlowski said. "I was -- I was trying to make things difficult for you, yes."
Pawlowski also testified that Rosenfeld had referred Heard for the competency evaluation.
"I referred Dr. Heard to Dr. Pawlowski and Dr. Pawlowski to Dr. Heard," Rosenfeld testified, but he said that he did not know why Pawlowski wanted Heard to evaluate O'Brien's mental capacity and that he wasn't aware of the result of the psychologist's visit.
"The context and their conversation, I am not privy to, and I don't know what happened and I don't -- I wasn't part of their agreement or retainer or anything from that point on," Rosenfeld testified.
In the second trial, Heard's testimony took center stage. He testified that he did remember the visit, and that Rosenfeld told him "he had a friend who was an executor, that the holder of the estate wished to switch the will ... and that they needed a competency -- basically a testamentary capacity evaluation."
Heard said he visited O'Brien at Kaiser on March 10, 2011, two days before his death. "He could not understand why I was there, what the purpose was," Heard said. "(He) was fundamentally non-responsive to my questions. He was really incoherent."
The psychologist told the court he "likely" relayed the information to Rosenfeld, "but I can't say with certainty."
During the trial, Rosenfeld's former office mates repeated the assertions made in their declarations.
"Mr. Rosenfeld had told me that he talked with Chris Heard a couple days or a few days before Mr. O'Brien's death and that Chris Heard had told him that Mr. O'Brien was incompetent," Head testified.
"I want to make sure we're clear on this," Kessler said. "You're saying that Ken Rosenfeld told you that Dr. Heard told him that Mr. O'Brien was incompetent?"
"Yes," Head replied.
In briefs the judge took under submission last month, the lawyers laid out their final arguments:
On behalf of Slattery, Kessler challenged Pawlowski's credibility, contending he had purposely concealed the psychologist's examination attempt and his findings regarding O'Brien's mental state.
Kessler said Heard's testimony also "suggests that Rosenfeld lied" in the second trial about why Pawlowski wanted O'Brien evaluated and about the veterinarian's intent to change the estate plan and to have himself made the prime beneficiary. Rosenfeld, Kessler alleged, "in fact was the agent of Pawlowski" when he claimed to have taken O'Brien's dictation.
Pawlowski's attorney, Guthrie, countered in his post-trial brief that O'Brien had "clearly showed" his intent to modify the trust. Guthrie maintained that Heard never completed a competency evaluation, and that it was the effects of the dialysis that left O'Brien unable to submit to the exam, not a lack of mental capacity. Guthrie stated that the day before O'Brien died, his treating physician at Eskaton checked off in admission notes contained in the medical file that he had the capacity to make his own medical decisions.
Rosenfeld, not being a direct party to the probate case, did not have an opportunity to formally respond to Kessler's argument. In an interview, he said, "I was simply a witness to a man who was a very good man and his last wishes. That was my entire role."
"Whoever wins or loses, I don't know and I really don't care," Rosenfeld said. "I just wanted my friend to go into death with some peace."
As for Kessler's statement that Heard's testimony suggested Rosenfeld had lied on the stand in the second trial, Rosenfeld said, "I don't know what Chris Heard said in his testimony. I just know what happened. I know that a referral was given to Ken Pawlowski of two different psychologists. What they did was between them. I had nothing to do with it. Kessler can make up any fiction he wants to try and win a case. But that's all it is -- fiction."
With Christopher Heard dead, discrepancies raised by testimony in the case may never be ironed out. While the judge will decide who is O'Brien's rightful beneficiary, uncertainties will linger about the stories told under oath by the psychologist and the veterinarian and the lawyer, over the mental capacity of a dying man and the veracity of his final words.
Judge Krueger is expected to issue his decision within 90 days.
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