The press has made much of the handwritten will that Larry King executed in the months before he died and in which he purports to change his prior will executed in 2015 to leave his estate equally between his children. The facts pertaining to the King estate dispute are explained in more detail in this article from the Los Angeles Times.
The family dispute over the King estate highlights issues that sometimes arise when an elderly Testator/Testatrix makes changes late in life after becoming weakened physically and perhaps mentally as a result of age and disease. Here are four key takeaways:
- The handwritten will is likely to be probated. King’s handwritten will was witnessed by two witnesses and therefore, potentially satisfies the requirements of section 6110 of the California Probate Code. California was likely King’s state of domicile at the time of his death. However, even if King’s will does not satisfy the requirements of section 6110, it appears to satisfy the requirements of section 6111 of the California Probate Code for a holographic will. Although the requirements vary from state to state, a holographic will is generally a will in the testator’s handwriting that may or may not be witnessed. Holographic wills are permitted and can be admitted to probate in 26 states including California. Some states will allow a holographic will to be admitted to probate if the will was executed in another state and was valid in such other state. Even other states will only accept holographic wills when made by members of the armed forces under certain circumstances.
- The dispute over King’s will is just the tip of the iceberg. The bulk of King’s assets were titled in the name(s) of his revocable trust(s) and will be conveyed through those trust(s), which he apparently did not seek to revoke or amend in his own hand (or otherwise) before he passed away. In fact, according to news reports, the probate estate to be conveyed according to the terms of the will is only $2 million, as compared to his nonprobate estate (i.e., the revocable trust(s) and other assets passing outside of probate) estimated by TMZ to be worth $144 million (other reports indicate his net worth was $50 million). One of the advantages of passing assets by trust, rather than by will, is that the administration is not subject to the probate process. This helps to prevent the trust agreement from becoming a matter of public record and having to file an inventory of its assets with the court which is not the case with a will. This element of privacy offered by trusts can be a big deal for wealthy individuals, particularly celebrities like King. Also, note that keeping the makeup of the assets private only works if title to the assets are transferred from the testator to the trust during the testator’s lifetime. It appears in King’s case that $2m of his assets did not make into trust.
- Any pre- and/or post-nuptial agreements will be important in how King’s estate will be distributed ultimately. News reports indicate that King did not have a prenuptial agreement with Shawn Southwick King (“Southwick”), who was his 7th wife in 8 marriages. Although the couple was married for 22 years, they separated in 2019 and King had filed for divorce. They had not yet reached a financial settlement. Because California is a community property state, Southwick will likely have a claim to 50% of the assets the couple acquired during their lengthy marriage, regardless of any changes King made to his will. It is unclear whether the parties executed one or more post-nuptial agreements. King and Southwick reportedly were separated in 2010 after tabloids reported King had a relationship with Southwick’s sister. Reports indicate the couple then executed a post-nuptial agreement declaring all of King’s $144 million in assets (even those acquired before his marriage to Southwick) to be community property. Southwick reportedly filed for divorce in 2010, and King sought to have the post-nup nullified. The couple subsequently reconciled for a time and King reportedly updated his estate plan in 2015. It seems likely his 2015 estate plan would have addressed the status of the marital assets.
- Setting aside the will on the basis of undue influence will be challenging. Southwick is alleging that King was unduly influenced by his son, Larry King, Jr., who is 59 years old and a resident of Florida. Larry, Jr. is King’s oldest child, but apparently the two did not have a relationship for most of Larry, Jr.’s life. Nonetheless, King reportedly transferred over $250,000 to Larry, Jr. in the final years of his life, and Southwick is seeking to set aside those transfers, in part, on the basis of undue influence. Southwick claims that when King executed his will in October 2019, King was “highly susceptible” to outside influences and had “questionable mental capacity” due to various physical health issues. Under California law, undue influence is defined as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Typically, proving that a Testator’s “free will” was overcome is a difficult task. Southwick will be particularly challenged by the length of time that transpired between King’s execution of his will and his death.
The King will contest is likely to continue for some time, with the next hearing scheduled to take place later this month. Whether the probate court dispute will be expanded to other litigation between Southwick and Larry, Jr. remains to be seen.
Robert H. Brunson
Maurice D. Holloway