Want to Know a Secret? A Will Is not a Wish ListFebruary 18, 2021 | Wendy Hoey Sheinberg |
Multiple news outlets have reported that a secret Will of the late broadcast legend, Larry King, has been found. According to the reports, this secret Will is handwritten and states:
This is my Last Will and Testament. It should replace all previous writings in the event of my death, any day after the above date I want 100% of my funds to be divided equally among my children, Andy, Chaia, Larry Jr. Chance & Cannon.
While the court may ultimately determine the effect of this alleged writing, Larry King’s secret Will raises important issues, including whether an informal handwritten note can be considered a Will, whether a spouse can be disinherited and whether an informal writing can revoke a Will.
Are My Written Wishes A Will?
Making a Will is different from making a list or writing a note. A New York statute sets forth the legal requirements for a Will and has specific formalities for its signing. The language used to write a will requires specificity – ideally the language should leave no question about the testator ‘s wishes. Vague language or language which is open to multiple interpretations can be problematic.
The secret Will appears to have a number of problems under New York law. The witness provisions do not attest to the circumstances of the signing or that Larry King declared it to be his Will. Additionally, the language, “100% of my funds,” could be read as applying only to cash assets, and not to real estate holdings, corporations, brokerage accounts or other types of assets. This could mean that some assets would pass according to the laws of intestacy and not to the named children. When the language of a Will is not clear, additional proceedings can be brought in an attempt to determine what the testator meant.
As with many DIY projects, a homemade will may create more problems than it solves, and often those problems are not discovered until it is too late to solve them.
Can You Disinherit Your Spouse?
The ability to disinherit a surviving spouse can be limited by specific state laws as well as prior written agreements. Many states have laws that prevent the disinheritance of a surviving spouse. For example, in New York a surviving spouse has a statutory right of election, which gives a surviving spouse the right to receive the greater of $50,000 or one-third of the estate (including certain testamentary substitutes) outright and free of trust (“the elective share”). The surviving spouse who is either omitted from a Will or specifically disinherited in a Will can object to the Will and/or assert their right of election. Even if a surviving spouse decides not to object to the Will, they can assert their right of election within seven months of the Will being admitted to probate.
A surviving spouse can be disqualified and lose the right to receive the elective share. If the marriage was void or prohibited under New York Domestic Relations Law, then the surviving “spouse” is disqualified. A final decree or judgment of separation can disqualify the surviving spouse. Also, if the surviving spouse will be disqualified because they abandoned the deceased spouse or had the ability and failed to support the deceased spouse and the abandonment or failure to support continued through the date of death.
Prenuptial, antenuptial and separation agreements (“matrimonial agreements”) can contain provisions limiting or expanding a surviving spouse’s inheritance rights. For example, a matrimonial agreement can contain a waiver of the right of election or an agreement that they will not receive any benefit from the deceased spouse’s estate. Conversely, matrimonial agreements can obligate the spouses to leave a particular amount or percentage to the surviving spouse.
Can You Revoke a Will?
Generally, a person with the mental capacity to make a Will can revoke a Will. In New York a Will can be revoked by another Will. A Will can also be revoked by a written revocation by the person who made the Will. The written revocation must clearly express the testator’s intent to revoke the Will and must be signed with specific formalities. Finally, a Will can be invalidated by burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction performed by the testator or in specific circumstances with particular requirements by another person, in the presence and by the direction of the testator.
Similar to the old adage, just because you can revoke a Will, does not mean you should do so. New York law provides for various means of revoking Wills. The formalities are tricky and if not revoked properly there can be unintended consequences.
One of the most important issued raised by the secret Will is that revoking and changing Wills should not be done without an experienced trust and estate lawyer.
- Wendy Hoey Sheinberg