Tag: last will
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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Many estate solicitors are retained to draft Wills for elderly clients. Concerns over capacity are normal. As such, I am frequently asked how thoroughly a drafting solicitor should enquire into capacity.
Although there is no universal answer, the decision in Wiseman v Perrey, provides helpful insight. Referring to an earlier decision from the Manitoba Court of Queen’s Bench, the Court set out the basic rules dealing with testamentary capacity where a professional, such as a drafting solicitor, is involved:
(a) neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity;
(b) the duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill and, particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous; and
(c) a solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.
There are a variety of tools a solicitor should employ, including having the testator take a Mini-Mental State Examination.
Depending on the severity of the solicitor’s concern, the use of a capacity assessor who specializes in assessing testamentary capacity should be considered. The assessor should be specifically instructed to assess whether a testator has the capacity to make a new Will. Although not an easy topic to broach with a client, these types of assessments can assist in ensuring the testator’s last ‘capable’ wishes are followed.
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Celebrities and Explosions.
Now that I have your attention, yes today’s estate blog is actually about celebrities and explosions.
Johnny Depp, the famed actor.
Now I really have your attention.
I recently came across this article in The Guardian, which highlighted the efforts made by Depp to plan Hunter S. Thompson’s funeral after his passing in February 2005.
Thompson, well known for authoring Fear and Loathing in Las Vegas had made requests prior to his passing to Depp, a close friend, as to how he wanted his ashes to be scattered. Depp stuck to his word and took steps to ensure that Thompson’s last wishes came true and made sure that “his pal was sent out the way he wanted to go out”.
As such, Thompson’s ashes were fired from a cannon that was placed atop a 153-foot tower shaped like a double-thumbed fist, clutching a peyote button, on Thompson’s Colorado farm. Yes, apparently Thompson loved explosions.
The total cost of the funeral was $3 million, which apparently, was funded entirely by Depp.
The surviving spouse, Anita, Thompson, supported Depp’s decision and even went on to state that the grounds where the cannon stood, remains a meditation labyrinth that is used every day at Thompson’s Colorado farm.
In Ontario, an estate trustee has the paramount legal authority to determine the place and manner of burial. There is no legal requirement for the estate trustee to follow the wishes expressed by the deceased (or the family of the deceased). Where a Will includes burial instructions, such instructions are precatory and not binding on the estate trustee.
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- Cryogenics and Funeral Arrangements