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Handwritten Wills and the Importance of Witnesses – What you need to know because it is complicated

Larry King’s Handwritten Will Ordeal

The recent passing of the broadcasting legend, Larry King, has resulted in his family not only mourning him but also fighting amongst themselves over his true last wishes. Larry, together with his wife, Shawn Southwick King, had executed estate planning documents in 2015, where he named her the personal representative of his estate. However, the couple faced some difficulties and Larry filed for divorce in August 2019. Just two months later, he executed a new handwritten will, leaving his entire estate valued at $2 million dollars to his five children. Two witnesses also signed their names to the hand-written will.

Larry’s eldest son, Larry King Jr., submitted the 2019 will to the court and has petitioned to be appointed the temporary administrator of Larry’s estate. However, Shawn has filed an objection to the 2019 will, claiming that the will is invalid and that Larry King Jr. exerted undue influence over his father towards the end of his life, and insisting that the 2015 will is the valid one.

Handwritten wills are commonly referred to as “Holographic Wills.” Florida does not recognize holographic wills, however Florida has an exception under Florida Statute section 732.502 which states that, even if a will is handwritten, as long as the testator’s signature is done in the presence of two attesting witnesses, it will not be considered a “holographic will.” Thus, in Florida, whether a will is handwritten is not the determining factor to establish the validity of a will. In Larry King’s case, there were two witnesses to the 2019 will.

Regarding Shawn’s claim of undue influence, the Florida Supreme Court held that a will is presumed to be the product of undue influence when the person who allegedly exerted the undue influence: (1) is a substantial beneficiary; (2) had a confidential relationship with the testator; and (3) actively procuredpersuaded the testator to executethe will. In re Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971). The Court explained that a confidential relationship is one where the testator trusts and relies on another person. For the third element, there are seven factors that may suggest an active procurement of the will. Those factors are: (1) the presence of the beneficiary at the execution of the will; (2) the presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (3) the beneficiary’s recommendation of an attorney to draft the will; (4) the beneficiary’s knowledge of the contents of the will prior to execution; (5) the beneficiary’s giving of instructions to the drafting attorney on preparation of the will; (6) the beneficiary’s securing of witnesses to the will; and (7) the beneficiary’s safekeeping of the will following execution. Id.

As you can see, invalidating a will on the grounds that it was procured by “lack of testamentary capacity and or undue influence” is no easy task.

To make sure you comply with Florida’s Will Execution strict requirements and to spare your family post-death litigation (Will contests, Probate Litigation, Trust Litigation), you should consult with an experienced Estate Planning and Probate attorney. The lawyers at Chepenik Trushin LLP are experienced, ready, and willing to help you. Please contact Bart Chepenik, JD LL M, on his cell 305-613-3548 or Brad Trushin, Esq at 305-981-8889, who are ready, willing and able to assist you with all of your estate planning, probate and guardianship needs.

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