• The Star Staff

James Brown’s will: Is it inching toward closure after 14 years?

By Steve Knopper

After more than a decade of litigation over James Brown’s estate, which he, the Godfather of Soul, had largely bequeathed to underprivileged students in South Carolina and Georgia, the chief justice of South Carolina’s Supreme Court seemed irritated.

“Has one scholarship been given, pursuant to Mr. Brown’s will?” the justice, Donald Beatty, pointedly asked at a hearing in October. “So all the people who’ve gotten any money out of this are the lawyers, thus far?”

S. Alan Medlen, a University of South Carolina law professor who represents Brown’s wife, Tommie Rae Hynie, responded, “Maybe some, Your Honor.”

The judge was not amused. “It’s quite bothersome,” he said, “considering the will was clear.”

But now, the state’s Supreme Court has taken a large step toward unraveling the tangle of litigation that has trailed the estate since Brown’s death on Christmas Day 2006. The five justices ruled unanimously last week that Hynie was not legally married to Brown because she had not annulled a previous marriage.

Legal experts say the decision weakens Hynie’s claim to Brown’s estate, which has been subject to a variety of opinions on its value, from $5 million to $100 million. In addition, there is the potential value of copyrights to classics such as “I Feel Good” and “Say It Loud — I’m Black and I’m Proud,” which are not part of the estate.

While the decision is not the sort of magic wand that will make years of acrimony and potential further appeals disappear, experts said it was a clear step forward in resolving a dispute that has begotten case after case in the courts.

In its ruling, the Supreme Court instructed the lower court to “promptly proceed with the probate of Brown’s estate in accordance with his estate plan,” which called for the creation of a charitable trust to help educate poor children.

“His intent is finally going to be carried out, and it’s going to benefit the children of South Carolina and Georgia,” said Dylan Malagrinò, a professor at the Charleston School of Law in South Carolina. “Most people are going to look at that and think that’s a really good outcome.”

Hynie, a singer who met Brown in 1998 after she performed a show in Las Vegas, has been a key player in the legal battle over Brown’s assets. Independent of what Brown had spelled out in his will regarding beneficiaries, as his widow, she would have had the right under state law to a third of his estate value, Malagrinò said.

But when Brown and Hynie married in 2001, she was married to another man: Javed Ahmed. She said in court that she had later learned that he had three wives in his native Pakistan. (After Brown learned of Hynie’s earlier marriage, he filed for an annulment in 2004.) Hynie’s lawyers have argued that Ahmed was a bigamist and that, as a result, her earlier marriage was void. Lower courts had upheld that view and declared her marriage to Brown as valid.

But, citing its 2008 ruling in another case, the state’s highest court disagreed: “All marriages contracted while a party has a living spouse are invalid unless the party’s first marriage has been ‘declared void’ by an order of a competent court.” In the case of Hynie’s marriage to Ahmed, no such declaration had occurred.

Robert Rosen, one of Hynie’s lawyers, said in a statement, “We are naturally very disappointed in the ruling.” He said he planned to “file a petition to reconsider and rehear the decision.”

Hynie, who was entitled as spouse to a share of Brown’s music copyrights under federal law, has already settled part of her dispute with the estate. Under that settlement, Hynie had agreed to give the charity 65% of any proceeds from her so-called termination rights — copyrights that, although once sold, can return to the songwriter or his heirs after several decades, according to court papers.

“Mrs. Brown,” said Rosen, “had given up her contests to the estate and charitable trust and agreed to give substantial funds from her very valuable federal rights to the charitable trust for needy students, which otherwise would not go to the charity. In our opinion, under her plan, many more millions of dollars would have flowed from those federal rights to the charitable trust if she had been confirmed as the surviving spouse.”

But Marc Toberoff, the lawyer for nine of Brown’s heirs, including his daughters Deanna Brown-Thomas, Yamma Brown and the children of Venisha Brown, who died in 2018, criticized previous South Carolina court rulings in Hynie’s favor as “shockingly bad.”

“There was an injustice in these rulings and that was righted by the Supreme Court,” he said.

Toberoff’s clients stand to benefit from the decision because Hynie would no longer share in the proceeds from the estate or in future copyright revenues.

Brown’s will had set aside $2 million to underwrite scholarships for his grandchildren. It designated that his costumes and other household effects were to go to six of his children; the rest of the estate was to go to the charitable trust for the poor, called the “I Feel Good Trust.”

“We won,” Daryl Brown, one of James Brown’s children, said by phone last week. “It’s a beautiful thing.”

Much of the value in Brown’s legacy arises from the “termination rights” to Brown’s song publishing, which are not part of the estate. The copyrights sold to a music publisher can be terminated after several decades and the rights revert to the songwriters or their heirs, who can strike deals to sell or license the songs.

Some of the 900 songs that Brown wrote have appeared in commercials by companies including Walmart and L.L. Bean; rappers like Jay-Z and Dr. Dre have sampled his music on lucrative hits; and his 1968 classic “Say It Loud — I’m Black and I’m Proud — Part 1” recently landed atop Spotify’s popular Black Lives Matter playlist.

“‘I Feel Good’ alone pretty much could support you and me for the next 100 years,” said Walt McLeod, a longtime Newberry, South Carolina, lawyer and former state representative who has followed the case.

As Brown’s spouse, Hynie sold her share of termination rights in five of the songwriter’s works to publisher Warner Chappell Music for nearly $1.9 million in 2015, according to a federal lawsuit by nine of Brown’s children and grandchildren. The lawsuit accused Hynie and her son, James Brown II, of “unlawfully” making deals without informing the other children and grandchildren.

Hynie and her son denied that, asserting that the heirs’ lawsuit was filled with “misrepresentations and material omissions.”

Lawyers for the nine heirs negotiated a settlement with Warner Chappell where the heirs also transferred their shares and received half of that money, Toberoff said, but the federal lawsuit is still pending.

Now that Hynie has been dislodged as a spouse, Scott Keniley, a lawyer who represented Brown’s son Terry, said, “The children have rights to the copyright terminations at 100% capacity that they split between themselves.”

Although it is far from a capstone, the Supreme Court ruling is a significant decision in a case that has entangled multiple participants. Brown’s 2000 will said that any heirs who challenged it would be disinherited, but several of his children and grandchildren sued after his death.

Although Hynie is no longer an heir, as determined by the Supreme Court, her son with Brown, James Brown II, has also asked to be considered an heir to the estate.

Toberoff says the nine heirs he represents are “more sympathetic” to James Brown II, although he declined to discuss further how they view the son’s claim.

Brown’s heirs have more details to work out, but for now, the will he drafted seems more likely to be implemented than it has.

“If all were right in the world,” said Adam Silvernail, a lawyer representing one of the estate’s former executors, Adele Pope, “the needy and deserving students would be receiving scholarships by the end of this year.”