In January, famed broadcaster and former CNN host Larry King died after contracting sepsis. At the time of his death, Larry King was in the process of divorcing his seventh wife, Shawn Southwick King. As we have discussed in prior blog posts, when someone dies, there are steps their loved ones must take to administer the estate. Sometimes estates will be administered in Probate Court and other times, such as with properly funded trusts, estates can be administered outside of court proceedings.
According to Ms. King, Larry had in place a “very watertight family estate plan”. However, news recently came out that in 2019, Larry had secretly drafted a handwritten will, known as a Holographic Will, that cut Ms. King out of his estate plan and left his estate to his five children. Notably, Holographic Wills are not valid in Illinois, however, this case will be decided under California law. The Holographic Will has been submitted to the Probate Court in California and Ms. King is actively opposing it arguing that Larry did not have the mental capacity to draft nor sign the Holographic Will in 2019. While we do not yet know how this will play out in court, it is important to understand what is required to draft a Will and other estate planning documents.
According to the Illinois Probate Act, section 755 ILCS 5/4-1, to draft a Will, you must be over the age of 18 and of “sound mind and memory”. This is known as “Testamentary Capacity”. But what does it mean to have “sound mind and memory?” Illinois courts have defined Testamentary Capacity as the “mental ability to know and remember the natural objects of [one’s] bounty, to comprehend the kind and character of property held, and to make disposition thereof according to some plan formed in the testator's mind”. In re Estate of Elias, 408 Ill. App. 3d 301 (1st Dist. 2011). In Illinois, when family members or beneficiaries contest a Will in court, such as what Ms. King is doing, the court will presume that the person had mental capacity until proven otherwise. If Ms. King was in Illinois Probate Court, the burden would be on her to prove that Larry did not have capacity when he drafted and signed the 2019 Holographic Will.
While there are other requirements to execute a Will including having two witnesses over the age of 18 sign the document who also attest that you have capacity to sign the document, the attorneys at The Law Office of Kate Curler first make sure our potential estate planning clients have Testamentary Capacity. As demonstrated by the Larry King news, it is not enough to just write down how you want to leave your estate. There are other requirements that must be met, and it is best to use an experienced estate planning attorney to create your estate plan.
If you have questions about Wills or other estate planning documents, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.