Larry King was a famous television and radio show host that was well known for his interviews of the world’s prominent politicians, celebrities and social movers. However, his death on January 23, 2021 revealed that his messy personal life has complicated his estate plans. During his life, Mr. King was married eight times to seven different women and had five children total. In 1997, he married his final wife Shawn Southwick-King and she bore him two of those children. They had filed for divorce in 2010 but reconciled soon after. Despite trying again to make it work, they filed for divorce again in 2019. The latest divorce filing was still pending at the time of his death, meaning that she was legally his surviving widow. While the vast majority of Mr. King’s $144 million assets were tied up in trusts, there was approximately $2 million in his estate that was subject to probate proceedings.
Two months after filing for divorce in 2019, Mr. King purportedly created a handwritten last will and testament that left his entire estate to his five children and completely omitted his wife. His son, Larry King Jr., produced the document to the court and requested to be appointed as estate administrator. Mrs. Southwick-King is contesting the validity of the document, claiming that someone pressured her husband to write it and it should be invalid. She relies on the estate planning drafted in 2015 that provided she would be cared for from estate assets. The battle rages on in court.
These situations involving contention among blended families and divorcing couples after death are not uncommon. Even in Michigan, probate judges hear cases every day where heirs challenge the purported estate planning documents of decedents that they felt cheated by.
How would some of the issues in Larry King’s estate play out in Michigan courts?
QUESTION #1: CAN YOU LEAVE A HANDWRITTEN WILL? Typically, a last will and testament is valid in the State of Michigan if it includes ALL of the following:
- It is in writing. MCL 700.2502(1)(a).
- It is signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction. MCL 700.2502(1)(b).
- It is signed by at least two individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will, or the testator’s acknowledgment of that signature or acknowledgment of the will is made by a notary public. MCL 700.2502(1)(c).
However, a last will and testament can qualify as a “holographic will” if the will is dated and if the testator’s signature and the document’s material portions are in the testator’s handwriting. MCL 700.2502(2). A will that meets the requirements of a holographic will is not required to be witnessed or acknowledged by a notary public. Even a holographic will that doesn’t meet the technical requirements may still be valid. “Intent that the document constitutes a testator’s will can be established by extrinsic evidence, including, for a holographic will, portions of the document that are not in the testator’s handwriting.” MCL 700.2502(3). A proponent of a purported holographic will with defects (e.g. some parts are typed, signature is missing) may still be admitted to the probate court if it can be shown by clear and convincing evidence that the document was intended to be the testator’s last will and testament.
While Mr. King’s handwritten last will and testament drafted in 2019 may be legally valid under law, it is even more susceptible to will contests by heirs due to the lack of witnesses, lack of notarization and the suggestion that he was unduly influenced away from other family members into creating a will he did not intend.
QUESTION #2: IS A WILL INVALID AS A RESULT OF UNDUE INFLUENCE? “To establish undue influence it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient.” Kar v Hogan, 399 Mich 529, 251 NW2d 77 (1976).
However, “[i]t is not improper for a spouse, child, parent, relative, friend or housekeeper to advise, persuade, argue, flatter, solicit, entreat, implore [the decedent],… appeal to the decedent’s hopes, fears, prejudices, sense of justice, sense of duty, sense of gratitude and sense of pity,… or appeal to ties of friendship, affection or kinship…”. M Civ JI 170.44. The fact that a family member may suggest, urge or implore someone to change their will to make it more favorable to them is not enough in itself to establish undue influence. There must be evidence that the testator’s free will was so impaired that he or she would never have considered executing the document but for this intense pressure. This can be a result of the undue influencer threatening to withhold necessary care, isolating him or her from family or friends, and even threats of blackmail or physical violence if compliance is not given.
The contestant of a will has the burden of establishing undue influence. MCL 700.3407(c). In Mrs. Southwick-King’s case, if the court finds that the 2019 document was a valid document on its face, then she must produce legally admissible evidence to the court to prove that its creation was the result of undue influence. If she is not successful, then the document will stand. This is a very high bar and most contestants fail to provide sufficient proof. Somehow, she would have to produce witnesses or documentary evidence that Mr. King was coerced or influenced to write this last will and testament to the extent that his ability to make free choices was abrogated. It is not enough to overturn a will just because you don’t like its contents. If all of the elements are not met, the will contest crashes and burns in spectacular fashion.
QUESTION #3: CAN A TESTATOR DISINHERIT HIS OR HER OWN SPOUSE? In Michigan, a spouse has certain rights to inherit from the estate even if the last will and testament explicitly provides nothing to him or her. Known as the “right to elective share”, the surviving spouse can make one of the following elections regarding the decedent spouse’s estate to the probate court:
- Abide by the terms of the last will and testament. MCL 700.2202(2)(a).
- Elective Statutory Share: Take ½ of the sum or share that would have passed to the spouse had the testator died intestate, reduced by ½ of the property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death. MCL 700.2202(2)(b).
- Dower Rights: Exercise the right to dower (for surviving wife only, not surviving husband) and claim one-third interest in the real property that the decedent husband owned during marriage. (Public Act 489 of 206 abolished this option for decedents that died on or after April 6, 2017). MCL 700.2202(2)(c).
MCL 700.2102(1) defines the intestate share of a decedent’s surviving spouse as one of the following:
- (a) The entire intestate estate if no descendant or parent of the decedent survives the decedent.
- (b) The first $150,000.00 ($242,000.00 in 2021*), plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
- (c) The first $150,000.00 ($241,000.00 in 2021*), plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
- (d) The first $150,000.00 ($242,000.00 in 2021*), plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent.
- (e) The first $150,000.00 ($242,000.00 in 2021*), plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.
- (f) The first $100,000.00 ($161,000.00 in 2021*), plus 1/2 of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.
- *This amount may be adjusted by the Michigan Department of Treasury pursuant to MCL 700.2102(2) to account for inflation.
If choosing the elective statutory share, the reduction by “½ of the value of all property derived by the spouse” by other means includes all of the following transfers:
- “A transfer made within 2 years before the decedent’s death to the extent that the transfer is subject to federal gift or estate taxes.” MCL 700.2202(7)(a).
- “A transfer made before the date of death subject to a power retained by the decedent that would make the property, or a portion of the property, subject to federal estate tax.” MCL 700.2202(7)(b).
- “A transfer effectuated by the decedent’s death through joint ownership, tenancy by the entireties, insurance beneficiary, or similar means.”
The personal representative must notify the surviving spouse of the right to election within 28 days of his or her appointment. MCL 700.3705(5). The surviving spouse may only select one of the options unless the testator’s will clearly provides the surviving spouse can pick more than one choice. The election must be made within 63 days after the presentment of claims or within 63 days after service of the inventory upon the surviving spouse, WHICHEVER IS LATER, but it must be exercised in the surviving spouse’s lifetime. MCL 700.2202(3). If a surviving spouse fails to make an election within the statutory time frame, then it is presumed that said surviving spouse elects to abide by the terms of the will. MCL 700.2203.
If Mr. King’s last will and testament was probated in Michigan and presumed to be valid, Ms. Southwick-King would be entitled to take an elective share against the estate regardless. It doesn’t matter if the parties were in divorce proceedings (but not yet divorced) at the time of death. The Michigan Court of Appeals confirmed that participating in divorce proceedings does not disqualify the spouse as a “surviving spouse” if there has not yet been a final judgment of divorce granted. Estate of Von Greiff, __ Mich App __ ; __ NW2d __ (Docket No. 347254)(2020). All of her rights remain intact.
No matter how clear the documents were, sometimes messy probate proceedings cannot be avoided if familial tensions are high. However, the chances of your wishes being followed after death are much higher if you sought good estate planning from a skilled probate lawyer. An improper procedure can be the difference between a smooth transition of assets and an all-out court battle. Make sure all of your affairs are in order while you are still alive!
If you or a loved one have questions about estate planning or probate procedure in Michigan, then do not hesitate to contact the experience attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
