Before long, a battle over Upshaw’s will erupted, as happens from time to time. I’ve written a story for the Metro section that reveals that Upshaw had established a $15 million deferred compensation fund for himself, which his wife inherited, and that upsets many former players and his son, Eugene III.
However, what appeared to be a far more fascinating matter of local interest was going to be a six-day trial starting this week in Fairfax County Circuit Court, concerning Upshaw’s actions on his death bed. It turned out that Upshaw was too sick to even sign his will, and his son claimed that Upshaw wasn’t coherent when his vacationing friend from McLean, lawyer Norman H. Singer, signed it for Upshaw on the day he died. A bevy of medical experts was lined up to opine about Upshaw’s competency in the hours before he succumbed to pancreatic cancer on Aug. 20, 2008.
But with the trial set for Monday, a settlement was reached late last week. And a lot of people were spared the experience of having to sit in a witness chair and describe the horrible final day of Gene Upshaw’s life.
Eugene Upshaw III, 40 and living in Orlando, was Gene Upshaw’s son by his first wife, and whether the two were close was going to be “an issue at trial,” as the lawyers like to say. But he already had plans to join his father for vacation in Lake Tahoe, arrived the day after his father fell ill, and he was at his father’s side when he died, along with Upshaw’s two sons from his second marriage to Theresa L. Upshaw, known as Terri.
And in the hastily drafted will that was executed in Tahoe Forest Hospital, Upshaw left every penny and every tangible asset to his widow, who is now 50, and named her both trustee and executor. The three sons would inherit equally if Theresa Upshaw died, the will shows.
Eugene III, having seen his father unconscious on his final day, wondered how the will was executed. And after some seeming hanky panky with the paperwork filed upon his father’s death, Eugene III hired some Fairfax lawyers and sued in 2009 to have the will thrown out and Theresa Upshaw disqualified as trustee and executor.
The lawyers on both sides declined to comment and the terms of the settlement are confidential.
But a lurid tale emerges from the court filings, and a trial would have been a tension-filled drama. The sides had agreed to a non-jury trial, and Fairfax Circuit Court Judge Charles Maxfield would have decided the case.
Eugene III claimed in his suit that he arrived in Lake Tahoe on Aug. 18, and went to see his father, still alert but in great pain, on Aug. 19. Also in Tahoe were Norman and Sandra Singer, family friends who also owned property there, the court records state.
At the hospital, Eugene III stated, Norman Singer and Terri Upshaw were concerned about Gene Upshaw’s lack of a will and tried to get him to sign “an unidentified document.” Terri Upshaw denied this in her response. Norman Singer was not sued and declined to comment on the case Wednesday, other than to say, “I’m glad it’s been resolved.”
By early Aug. 20, Gene Upshaw “had deteriorated substantially...He was not coherent, and was not speaking,” Eugene III’s lawsuit alleged. Terri Upshaw responded that her husband “was coherent and able to speak.”
When Eugene III arrived at Forest Hospital at 9:30 a.m., his suit stated, Gene Upshaw “was in no condition to sign anything or give any instructions as he was sedated and not conscious.” There is a fax time stamp on the will of 12:43 p.m. — 9:43 a.m. in Tahoe — and Eugene III argued that he was present for the rest of the day until his father died, and that Upshaw was incapable of signing or directing anyone to sign his will.
Terri Upshaw responded that her husband was capable — and directed Singer to sign the document for him.
But that little tidbit wasn’t revealed right away.
Gene Upshaw died that evening, surrounded by his family, without regaining consciousness.
His will is dated Aug. 20, and beneath his signature are these words:
“Eugene Upshaw Jr. stated to us that this document is his Will, requested that we act as witnesses to his signing it, and signed it in our presence on the above date. We now, in his presence and in the presence of each other, sign as witnesses.”
And then Norman and Sandra Singer formally signed and attested that Upshaw had signed his own will.
A little more than two weeks later, the will was filed in Fairfax County probate court, along with standard form depositions by both of the Singers attesting to its legitimacy. On both forms, the question was asked: 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?”
Both Norman and Sandra Singer wrote “yes.”
The will was filed, with an estimate that Upshaw’s estate was worth “$100,000.” That turned out to be about $19.6 million low, according to a later accounting filed by Terri Upshaw.
In a second set of depositions filed by the Singers in October 2008, the couple changed their answers to “No”on whether Upshaw signed his will, and acknowledged that Norman Singer actually signed it.
Norman Singer declined to discuss the case.
In September 2009, Terri Upshaw filed an inventory of her husband’s estate, which disclosed not only the $15 million payout from the players’ union’s Players Inc. licensing arm, but also a separate payment from the union itself “for past due compensation owed to decedent” of $1,730,000.
The inventory also revealed that Upshaw had $2.275 million in a checking account [for those high-end impulse buys], about $346,000 in a couple of investment funds, eight luxury vehicles and a 32-foot boat. As union chief, he was paid $4.3 million in salary from the NFLPA in 2006 and another $2.4 million from Players Inc., of which he was also a director, according to Labor Department records.
Eugene III argued that the will should not have been admitted to probate because Singer couldn’t both sign and witness it. He also asked for the removal of Terri Upshaw as executor, in part because she moved his father’s $15 million payout from Players Inc. to an investment account run by Norman Singer’s son, Ryan Singer, and that $1 million in value had already been lost. Terri Upshaw acknowledged moving the fund to Ryan Singer at Edelman Financial Services, but denied the loss.
(UPDATE: Ric Edelman, CEO of Edelman Financial Services, checked in Thursday to back Terri Upshaw’s version:
“Ordinarily, we would not confirm publicly that we serve as the investment advisor for any particular client,” Edelman wrote in an e-mail. “However, since our client has acknowledged our role, it is appropriate for me to confirm that the accounts we manage for her have never incurred any losses. Any assertions to the contrary are false and without basis.”)
And finally, court records show, after Terri Upshaw filed an inventory which showed the value of her husband’s estate at $19.7 million, Fairfax County sent her a letter saying she owed a bit more in probate tax. Specifically, about $16,740 more. And the county alleges that Terri Upshaw has not answered their demands for the taxes since December 2009, and a judge this year ordered her to show cause why she shouldn’t be held in contempt of court.
Norman Singer said this matter would be easily resolved, and such controversies are often routinely disposed of in probate court.
Still, the trial promised to be juicy. Psychiatrists from the District and the University of Virginia and a pharmacologist from Virginia Commonwealth University med school reviewed Gene Upshaw’s medical records, Eugene III’s filings state. The experts were prepared to testify that the combination of Upshaw’s illness and his heavy sedation so impaired him “that he would not have appropriately appreciated the implications of any of the directions he allegedly gave to Norman Singer.”
Instead, the case is done and no one’s talking. But what a trial it could have been. Maxfield could have sided with Terri Upshaw, and Eugene III would have gotten nothing. Or he could have ruled for the son, which would have thrown the estate, and the Upshaw family, into deep chaos.
The retired NFL players who are currently suing Players Inc. for withholding money from them were deeply interested, however, to learn Wednesday that Players Inc. had arranged to pay Upshaw $15 million, so we may not have heard the last of this.
Here’s some great footage that NFL Films put together on Upshaw’s playing days for the Oakland Raiders.