Shortly after Larry King passed away on January 23, 2021 at age 87, it was widely reported that the prominent television and radio host merely had a simple, handwritten will executed in the months before his death. At the time, many were shocked as this appeared to be his entire estate plan. After all, with King going through the process of his eighth divorce, one would think he would understand the importance of a dependable estate plan. This handwritten will allegedly gave his entire estate to King’s five children, but not his wife.
Written in October 2019, this document included numerous grammatical errors. The note stated: “This is my Last Will & Testament. It should replace all previous writings. In the event of my death, any day after the above date I want 100% of my funds to be divided equally among my children Andy, Chaia, Lary Jr Chance & Cannon.”
This handwritten note became public when King’s eldest son, Larry King, Jr., filed an emergency petition to be named special administrator of his father’s estate based on this “holographic” will (i.e. a handwritten and testator-signed will). The emergency petition alleged Larry and his widow, Shawn, “were actively involved in ongoing dissolution proceedings” and “were residing separately from each other since 2019, and were living separate and apart at the time of Mr. King’s death.”
Subsequently, Shawn filed an opposition to the emergency petition, asking the court to deny admission of the holographic will. King married Shawn, his seventh wife, in 1997. As it turned out, King’s entire estate plan did not merely consist of a simple, handwritten will. In fact, it quickly became apparent that King’s estate was not straightforward at all as many questions quickly arose.
When Shawn contested the admission of the holographic will, she notified the Los Angeles Superior Court that a prior will existed. This prior will, dated July 7, 2015, named her as executor. Additionally, Shawn informed the court that King had a trust and there were two postnuptial agreements. In fact, Shawn argues that if the handwritten will was enforced, it would be a violation of one of those postnuptial agreements. The parties are only beginning what is likely to be a long and drawn out legal battle over the deceased celebrity’s estate.
The Larry King estate turmoil highlights issues that often arise in probate matters when an elderly individual makes late in life changes to his or her estate plans. In many ways, this saga is a lesson in how not to leave a legacy. Here are a few key takeaways:
The will is likely to be admitted into probate. King’s handwritten will was witnessed by two witnesses. For instance, Maryland does recognize holographic wills; however, they must comply with Maryland law, i.e. witnessed by two individuals. As a side note, pursuant to Maryland Estates & Trusts § 4-103, a holographic will handwritten by a testator who is serving in the armed services of the United States is also valid if signed by the testator outside of the United States, even if there are no attesting witnesses. However, it is void one year after discharge. Conversely, in California, not only are holographic wills permitted but it is not necessary for the testator to have two witnesses. As such, it is likely the 2019 document will be admitted into probate and subsequently challenged by Shawn.
Capacity. King executed the handwritten will in October 2019, merely a few months after he suffered a stroke and shortly before he underwent a surgical procedure. Should the will be admitted into probate, it is likely that Shawn will contest the admission of the document on the basis that King lacked testamentary capacity when drafting the note. In her opposition to Larry Jr.’s emergency petition, Shawn hinted she will be making this argument in future litigation when she maintained her husband was “under the influence of pre-operative medication” when the will was drafted and signed in October 2019.
Undue influence. Another potential route for Shawn to attack the validity of the will is to argue the will was the result of undue influence. In her petition, Shawn argued her husband was “highly susceptible to outside influences.” Further, Shawn claims she discovered a “secret” joint bank account between Larry Sr. and Larry Jr. valued at approximately $266,000. Shawn argues through this joint account, Larry Jr. received these funds without her knowledge or consent. Undue influence on the maker is a commonly used basis to challenge a will. A will procured through undue influence is invalid. In Moore v. Smith, 321 Md. 347 (1990) the Maryland Court of Appeals identified the seven characteristics for the existence of undue influence. The elements are:
- The benefactor and beneficiary are involved in a relationship of confidence and trust;
- The will contains substantial benefit to the beneficiary;
- The beneficiary caused or assisted in effecting execution of the will;
- There was an opportunity to exert influence;
- The will contains an unnatural disposition;
- The bequests constitute a change from a former will; and
- The testator was highly susceptible to the undue influence.
Based on Shawn’s contention that Larry was “highly susceptible to outside influences,” along with the revelation of the “secret” joint bank account, it appears Shawn is preparing to argue that Larry Sr. was vulnerable to undue influence. Shawn would need to prove that Larry Sr. was not capable of declaring his own wishes at the time the will was prepared and signed.
The 2019 will’s effect on the Trust. Should the will be admitted into probate, many additional and more complex questions would arise. For instance, when there is a trust (as Shawn indicated there is), the will only governs assets not transferred into the trust prior to the decedent’s death. Assuming Larry Sr. already transferred most of his assets into his trust, there would be minimal estate assets left for the will to regulate. Furthermore, the 2019 will awkwardly states “I want 100% of my funds to be divided equally among my children…” It is not clear what would constitute as “my funds.” He surely had many different types of assets and it is not clear what he meant by “my funds.” This also could potentially be used as evidence that Larry Sr. did not have full knowledge of his assets at the time the will was signed, which could be used to support the argument that he lacked testamentary capacity.
Does the 2019 will violate a postnuptial agreement? Shawn alleges that the handwritten will violates one of the postnuptial agreements, which limited gifts to Larry’s children. If it is found that the will did in fact violate the terms of a postnuptial agreement, Larry’s estate may be liable for damages. Further, the limitations set forth in the agreement could be enforced as it relates to the “secret” joint account.
At this stage, many of the details of the Larry King estate drama are not yet publicly known. However, it is quite clear that both sides are gearing up for what will be a long, contentious and high-profile legal battle.
Zachary W. Worshtil is an attorney at Ralph W. Powers, Jr., P.C. He is also a member of the PGCBA Board of Directors and co-chair of the Probate, Estates, Trusts & Elder Law Section. He concentrates his practice primarily in estate administration and probate litigation.