Handwritten Wills/Codicils are certainly quite rare, particularly for people with means. In certain circumstances, and particularly where the testator had made a pre-existing Will, the presence of a subsequent handwritten Will or Codicil can suggest the presence of suspicious circumstances.
As Paul Trudelle blogged last week, Larry King apparently executed a secret handwritten codicil in 2019 that divided his roughly $2 million estate amongst his five children, to the exclusion of his wife, Shawn King. Mrs. King apparently intends to challenge the validity of the 2019 codicil.
In Ontario, an amendment to a Will is referred to as a “codicil” and it is considered to be a Will, for the purposes of the Succession Law Reform Act. A handwritten Will, in Ontario, is referred to as a “Holograph Will” and the only requirement is that it be made wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. The fact that a Holograph Will is usually made without witnesses will often cause litigation, particularly if there are suspicious circumstances surrounding its execution and/or discord in the family of the deceased.
If Mr. and Mrs. King resided in Ontario, Mrs. King could pursue various claims in challenging the validity of the 2019 codicil (subject to the available evidence), including:
- Lack of requisite testamentary capacity on Mr. King’s part;
- Mr. King being subject to undue influence from any or all of his children (or other third parties);
- Presence of suspicious circumstances in the execution of the codicil; and
- Presence of fraud in the execution of the document (which is pleaded quite rarely, as there are serious costs consequences for those that make such an allegation but are unable to prove it).
It will certainly be interesting to see how this matter unfolds, particularly taking into account that $2 million is not a significant amount when the costs of litigation are taken into account.
Interestingly, some sources suggest that his Estate is actually worth $50 million, which sounds a lot more accurate!
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