Where there’s a will, there’re relatives — or so the saying goes. The events following the death of legendary TV host Larry King earlier this year serve as the most recent illustration of the enduring truth contained in that statement.
The current legal dispute between King’s widow, Shawn, and Larry King Jr, the host’s son from a previous marriage, centers around a handwritten will that King made in 2019. That this handwritten will would lead to conflict within the family is undoubtedly sad, but not entirely surprising. Handwritten wills are valid in the State of California if they meet certain requirements.
However, just because you can, it doesn’t mean you should. This is especially the case when the estate involves numerous marriages, multiple children and millions of dollars. So could his handwritten will stand up in court?
On the surface, California law merely requires that King’s will be written in his handwriting. It must be signed and dated and he must have been of sound mind at the time. That all sounds simple enough, but courts will often scrutinize whether a handwritten will represents a person’s true intent.
Because there is no requirement for handwritten wills to be witnessed, they are perceived to be more susceptible to fraud than a will that has been typed, signed and witnessed in the conventional way. How might King’s widow challenge the validity of his will?
One possible avenue would be to argue that King did not have mental capacity at the time that he made the will. Shawn King would have to prove that King did not understand what he was doing, or that he was suffering from delusions or hallucinations that caused him to leave his property to his children instead of his wife.
In the months prior to writing the will, King had suffered a heart attack and filed for divorce from his wife. These events, when considered alongside the fact of his advancing years, could be used as the basis for asserting that King did not have mental capacity at the time he made the will.
However, without more, such a claim is unlikely to succeed. This is especially the case where the decision by King to leave his estate to his children rather than his wife cannot be construed as bizarre or unnatural in circumstances where he had recently filed for divorce.
If Shawn King is unable to prove lack of mental capacity, she may argue that the will is void because of “undue influence” by the children. This is a legal minefield because the question is not “did the children influence him”; it is did they influence him “unduly.”
If it can be shown that King was in a weakened physical or mental state that made him more susceptible to influence, that will help Shawn King’s case. The existence of suspicious circumstances would also support her case. It could be argued that for a man of King’s stature to prepare a will scrawled on a scrap of paper, that itself amounts to suspicious circumstances.
It is all the more suspicious because the Kings apparently had an estate plan, likely consisting of a series of trusts. They will have used an attorney to prepare that plan. If King wanted to make a new will, why would he not have contacted his attorney?
The strong case to be made on the other side in support of the legitimacy of the will is that leaving his property to his children is neither unjust, unnatural or unfair in circumstances where King was estranged from his wife. This is not a case where abruptly and without apparent reason a faithful and deserving family member was disinherited. Those are the situations where undue influence will often be found.
It remains to be seen whether all of this will play out in court. Shawn King’s attorneys will have informed her that case law in this area is riddled with inconsistencies, making it difficult to predict which way a judge will rule.
If there is one common thread that can be gleaned from prior cases, it is that judges and juries appear determined to find evidence of wrongdoing where the will doesn’t conform to their view of what is appropriate. Where someone chooses to leave their fortune to the local animal shelter instead of their children, courts will typically bend over backwards to find evidence of mental impairment or undue influence. No such issues exist in this case.
Given the difficulties inherent in predicting how a court would rule, it is likely that this case will settle before the trial. A trial would also likely lead to public revelations about personal matters that the family would prefer to keep secret.
The lesson of Larry King’s handwritten will, though, is that they should generally be avoided. Handwritten wills certainly have their place; when someone fears that death is imminent and time is of the essence, preparing a handwritten will is often the only way to make your wishes known.
In circumstances less fraught, and in particular where much is at stake, a handwritten will can plunge the family into a nightmarish legal battle that fractures relationships and causes an endless cycle of conflict.
Daniel R. Weiner is a trusts and estates attorney and holds a masters degree from Duke Law School. He lives in the Del Mar area of San Diego with his wife, Miriam, and two young children, Aiden & Emma.