This is Part 2 of my reflections on renowned interviewer Larry King’s secret Will that was revealed shortly after his death on January 23, 2021. See Part 1 here.
Can handwritten Wills be valid in B.C.?
Yes. Section 58 of the Wills, Estates and Succession Act gives a B.C. Court the authority to make an order that the handwritten Will (sometimes called a “holographic” Will) is an authentic and enforceable Last Will and Testament.
Would Larry King’s ‘Secret’ Will be considered a valid Will in British Columbia?
It is possible. Whether or not Larry King’s secret Will is legally valid will depend on the laws in the U.S. jurisdictions where Larry King’s assets are situated and that govern the Will or Wills. However, if this same situation happened in B.C., it is possible a B.C. Court would find Larry King’s secret Will to be valid.
It is important to note that “secret Will” is not a legal term. A secret Will is just a Will that someone did not know about before the Will-maker died. As such, secret Wills are no different than any other Will from a legal standpoint. The Will is either legally valid of invalid. The fact that a Will was a secret to some people does not make it invalid.
If the secret Will is valid how does that change who gets what out of the estate?
The existence of a valid secret Will could fundamentally change who gets the Will-maker’s property. In this case, Larry King’s 2019 handwritten Will says that it “…should replace any previous writings…” If valid, that would mean any previous Will is revoked. This could mean that the “…very watertight family estate plan…” that Larry and Shawn King set up in 2015 is now either null and void or seriously altered. It is of note that the 2019 secret Will does not mention Shawn King. It only provides for Larry King’s 5 children (only 3 of whom were living at the time of his death).
What can a disinherited Spouse or child do?
If this situation occurred in B.C., Shawn King (or Larry’s children if they were the disinherited ones) has several options available to protect her interests.
- Argue the secret Will is invalid: She could challenge the validity of the secret Will. For example, circumstances such as a serious medical event around the time the secret Will was written could cause a court to find that the secret Will does not reflect Larry King’s true intentions for his estate. Prior to writing the secret Will, Larry King spent several weeks in hospital after suffering a serious heart attack that nearly killed him.
Another reason a court could say the secret Will is invalid is if there are circumstances showing that someone else strongly pressured Mr. King to write the secret Will. In this case Shawn believes someone has done just that.
If the secret Will is invalid, then the previous 2015 “watertight” Will is valid and Larry King’s estate would be distributed according to that Will – which presumably includes Shawn King.
- Apply to vary the secret Will: Even if a B.C. Court found the secret Will was valid, Shawn King could ask the Court to vary the Will such that she would be entitled to a portion of the estate as Larry King’s spouse. Varying a Will means that the Court would take some of the assets going to Larry King’s children and give them to Shawn King.
It is important to note that because of the 2019 divorce proceedings, it is likely that in B.C., Shawn King would not be a “spouse” as set out in the Wills Estates and Succession Act. Section 2(2) of that Act says that two persons cease to be spouses when their property rights are triggered. Section 81 of the Family Law Act says that this triggering happens on separation. On separation each spouse has a right to an undivided half interest in family property and family debt.
If she is not a spouse, Ms. King would have no right to apply to have the Will varied. However, Ms. King would still be entitled to whatever property she would have received out of the divorce proceedings based on the property that was in existence in 2019 at the time Larry filed for divorce.
Similarly, children wanting to vary the estate of a deceased parent will face challenges if they had a bad relationship with and did not get along with that parent (sometimes called ‘estrangement’). Children may not have a legal right to apply to vary a biological parent’s Will if they have been legally adopted to another family. Children who were raised by a parent but not legally adopted by that parent also do not have a legal right to apply to vary a Will.
- Claim a trust in Larry King’s assets: Depending on the assets she owned and acquired before and during her 22-year marriage with Larry King, Shawn King may have a trust claim against Larry’s estate: that is, she may be able to show that some of the assets in Larry King’s name may actually be Shawn’s. Those assets would not be a part of Larry’s estate and those assets should be returned to Shawn. King is apparently making this argument because it is being reported the estate is worth only 2 million USD with the balance being a part of family trusts set up earlier.
Shawn King can make this claim even if she is not considered a spouse.
Dealing with estate litigation disputes can be confusing and complicated. If you have questions or need some help sorting through what your legal rights to an estate are, please give us a call at Legatum. Even if you think you don’t have a case, it costs you nothing to pick up the phone and book a free 45-minute consultation.
