Larry King – Talk Show Host’s Widow Contests Handwritten Will
Many of you may have seen the recent news heading ‘Larry King : Talk Show Host’s Widow Contests Handwritten Will’.
One may start to think that contests of public figures Wills are quite common because they are headlines that we do see fairly often. What these headlines often show us is that there are going to be long drawn out Court cases which are going to cause even more family divides than already exist, extend peoples grief as they will not be able to start to move on, and most importantly cost the estate lots of money. On a more serious note, what these cases also show is the importance of taking good legal advice when making a Will.
Larry King’s death of course took place in the US and US law will apply, but in England, if a Will is challenged there is a standard list of evidence that the challenger will usually ask for. This usually includes a request for contemporaneous evidence such as a record of the instructions given for the preparation of the Will, copies of correspondence regarding the preparation of the Will and details of the circumstances in which the Will is signed. Medical evidence can also be asked for together with details of who else was involved in the Will, making process such as in Larry King’s case was Larry King Jnr himself actually involved?
With a homemade Will it is likely that very little of this evidence may exist. Details of the circumstances in which the Will was signed may be available if the witnesses are still alive, can be traced and remember signing the Will. You should note that when asking witnesses to sign a Will they do not have to see the content of it so it can often be very difficult for witnesses to remember what has happened as they may not even know it was a Will that they were signing.
When a Will is prepared by a lawyer, the lawyer should (and Trethowans certainly do) keep records of all meetings and telephone conversations with the client. These records should include the lawyer’s assessment of the person such as whether they were of full mental capacity. There should also be records of anyone else who has called about the person’s Will and how the instructions were given i.e. were they given through the testator himself or did someone else such as a child give them on his behalf. At Trethowans we will always insist that we must take instructions directly from the testator as it is their Will and no-one else’s and so we must know that the Will is recording their wishes. Not only that, but we will insist that we see the testator on their own at least once. The witnesses to the Will could be deceased but if we have witnessed the Wills then there will always be a record of it that can be used as evidence and if we have not we will still have taken instructions from the testator and as such there will be a record of those instructions. Should we have any concern about mental capacity or undue influence then we would take further steps to establish the position.
If mental capacity becomes an issue then we would usually arrange for the testator to be seen by a doctor who knows them well, or a mental capacity specialist to prepare a report as to whether they can understand the nature and effect of making a Will and that they understand the implications of who they are leaving their assets to. If undue influence is a concern we would ensure that meetings took place without the knowledge of the person who may be exerting the undue influence and that we may have more meetings than normal to ensure instructions stay consistent.
In Larry King’s case one of the arguments is that his 2019 Will which was handwritten is significantly different to his 2015 Will. In circumstances where a testator deviates from their previous Will we will ask them and record why the changes are being made. In these cases we are not saying that a testator cannot make those changes, but we are just recording the reasons why should there be questions in the future.
Where a testator wishes to exclude someone who might expect that they should benefit from the Will, we can also give advice on what can be done by the testator when they are making the Will to help if after their death the Will is challenged. This will often involve a letter from the testator setting out their reasons as to what they are doing and why and is often in the form of a sealed letter only to be opened if the Will is challenged. This is often classed as the testator speaking from their grave.
The pandemic has certainly made taking Will instructions harder as it is not easy seeing people face to face due to the risks of transmitting Covid-19. At Trethowans, even prior to the pandemic, we had recognised the need for advancement in our procedures and have been taking instructions over video conferencing software for many years meaning that we have been able to come up with ways to identify when someone may be suffering undue influence or have someone else in the room with them but out of view of the camera screen. Not only that but for those are uncomfortable giving instructions over video we have been able to take instructions in other ways such as through someone’s window or in their garden. Our offices are also set up Covid-secure so that where necessary we can meet with people in our offices.
If you would like assistance in preparing a Will, please don’t hesitate to contact Trethowans here today or call on 0800 2800 421 and one of our specialist private client solicitors will be happy to help.