Last week, my partners Robert Fleming and Elizabeth Friman, in their weekly podcast, talked about the late great broadcaster Larry King and his hand-written will. At the time, most people thought the simple document, which gave King’s estate to his five children (and not his wife), was his entire estate plan.
That was surprising, given that King, who died January 23 at age 87, had been divorced seven times and, at his death, was in the process of an eighth. He, of all people, should have known the importance of having a legally solid estate plan.
King’s Estate Is Not So Simple
As it turns out, the simple document was NOT King’s entire plan. His seventh spouse, Shawn, filed to contest the document. The will surfaced publicly when Kings eldest son, Larry King Jr., filed to be named special administrator of King’s estate based on the “holographic” will.
Shawn’s objection says there not only is another will (dated July 7, 2015) naming her as executor, there also is a trust and two post-nuptial agreements that, if the holographic will can be enforced, King violated. There’s a hearing on March 25, which will begin what is likely to be a long legal battle to determine who gets what.
Plenty of Questions
Among questions the court may have to answer:
Did King have the capacity to do a new will? News stories suggest that the will should be thrown out because King was having so many health problems at the time. The will is dated October 2019, a couple of months after King suffered a stroke and was about to have surgery, and Shawn’s filing notes he may have been “under the influence of pre-operative medication.” Still the capacity required to make a will is very low; a person only needs to know about their property, their loved ones (“natural objects of their bounty”), and the fact that signing the will affects how the property is distributed among loved ones (or not).
Was King unduly influenced? Shawn’s petition says King was “highly susceptible to outside influences” and mentions secret transfers to Larry Jr. totaling $266,000. Undue influence occurs when someone has testamentary capacity but is overwhelmed by someone’s else’s desires and as a result departs from their own wishes. Evidence of transfers from Larry Sr. (likely a vulnerable person at that time) casts some suspicion on what Larry Jr. might be up to, but it also doesn’t prove Larry Sr. wasn’t able to assert his own desires.
Interestingly, the will is signed by two witnesses (Greg Christensen and (illegible name) M. Ibarra). Witnesses are not required on holographic wills in California. Like Arizona, California requires testamentary capacity, material provisions in the testator’s handwriting, and a signature. No date, no witnesses are needed. The fact that there are witnesses means they probably have something to say about whether King had capacity or may have been influenced.
If the Will Is Valid, More Issues Arise
What would the will govern, Part 1? When a person has a trust, the will typically governs only assets not transferred into the trust. Assets transferred to the trust avoid the probate process altogether. So, if King transferred most of his assets to the trust, there may not be much left for the will to govern. This may account for the discrepancy between Shawn’s estimate of the estate’s value ($350,000) and Larry Jr.’s ($2 million). Either way, there’s probably a lot more in one or more trusts and/or other entities that are not part of King’s estate for probate purposes. (TMZ estimated his net worth at $144 million.)
What would the will govern, Part 2? The will says “I want 100% of my funds to be divided equally among my children . . . ” My funds? Larry King had many types of assets, likely including business entities, intellectual property, investments, real property, etc. “My funds” is an odd way to refer to a complex estate. What did he mean? The parties can introduce evidence to clarify, but it’s possible no one knows or someone in the room suggested the words. Again, those witnesses will be key. Further, the description suggests he may not have had the full knowledge of his property that is required for testamentary capacity (see above).
Even Bigger Questions
Can the will amend the trust? The handwritten will says: “This is my last will + testament. It should replace all previous writings.” Notably, it does not say “all previous wills.” Is the broader “writings” enough to amend the trust and wipe out Shawn’s inheritance? Probably not. California law allows modification, but only in specific ways. First, compliance with any method in the trust. Second, by a writing, other than a will, signed by the trustor and delivered to the trustee during the trustor’s lifetime. We don’t know the trust terms, but they usually more restrictive than Option 2. King’s writing obviously fails Option 2; it is a will.
That said, people who create trusts can choose the law that governs them. California law might not apply. In some jurisdictions, if the trustor’s intent can be proved, the trustor’s intent rules. Both Shawn and Larry Jr.’s petitions mention the pending divorce. Shawn says they were still close and the divorce was going nowhere, Larry Jr. says they were estranged. The real state of their relationship may contribute to evidence of Larry’s intent and who ultimately gets King’s estate.
Do the postnuptial agreements matter? Yes! Postnuptial agreements are like prenuptial agreements, but signed after marriage instead of before. They are contracts in which couples agree how their assets will be divided if they get a separation or divorce, and often division at death. Couples can agree to almost anything, as long as it’s fair. If the holographic will violates one of the post-nups, King’s estate can be liable for damages. And, if the agreement limits gifts to Larry’s children, as Shawn says, those limits could be enforced. There are rules, though. The agreement needs to be in writing, and signed by both of them free of coercion. An oral promise won’t do.
Shawn Gets Her Story Out
Shawn is wasting no time getting her side of the story before the court of public opinion. She has been making the rounds and telling outlets about the her final moments with Larry. She told Entertainment Tonight: “We were able to do FaceTime in the hospital and it was hard for him to talk, but the one message that he wanted to make sure I heard was, ‘I love you, take care of the boys.’”
There’s certain to be plenty of drama ahead . . . I don’t know about you, but I can’t imagine Larry would be disappointed his estate is making headlines . . .
