Larry King & the Holographic Will

Larry King was born Lawrence Harvey Zeiger in Brooklyn, New York, in 1933, in an observant Jewish household. Following the death of his father Edward at 44, Larry worked to support his mother for several years after graduating high school.

Moving to Florida in his early twenties to work on radio, he was asked to fill in on air at short notice; the radio general manager told him to change his last name to something “less ethnic”, after seeing a newspaper ad for King’s Wholesale Liquor, Lawrence Zeiger became Larry King.

Building his career in local radio during the 1950s and 1960s, by 1978 Larry hosted The Larry King Show, a syndicated late-night radio show; originally aired in 28 cities, within five years, it had spread to 118 cities. In 1985 he launched Larry King Live on CNN.

King hosted Larry King Live on CNN for over 25 years, retiring in 2010 after taping more than 6,000 episodes of the show.Throughout its time on air, the show was routinely CNN’s most-watched program, with Larry arguably being the network’s biggest star.

King died on January 23, 2021, at the age of 87 in Los Angeles, California; with an estate estimated at around $2 million. He had married eight times to seven women and had five children, nine grandchildren and four great-grandchildren.

King and his seventh wife, Shawn, were married for 22 years. In August 2019, Larry King filed for divorce; agreeing that he would pay $33,000 per month in interim spousal support before their divorce hearing on April 29, 2021.

In October 2019 King left the following handwritten letter:

This is my Last Will & 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, Lary Jr Chance & Cannon.

In July 2020 Chaia died from lung cancer; Andy died from a heart attack in August 2020.

King’s son, Larry Jr argues that his father’s handwritten note constitutes a “holographic will,” the terms of which should be followed. Additionally, as Shawn and his father were involved in a pending divorce proceeding at the time of his father’s death he should be appointed administrator.

Shawn says that Larry had made a formal will in 2015, naming her the executor of the estate. She was surprised to learn Larry had secretly updated his will — in a handwritten document, two months after filing for divorce.

Shawn submitted that the document was an “ineffective codicil” with no legal significance. Additionally, King had reduced mental capacity as he had suffered a stroke and was susceptible to “outside influences.”

Shawn claims that she and Larry were on good terms and were not headed toward divorce, as Larry had been uncooperative and refused to participate in the divorce proceeding. Importantly she has a clear understanding of Larry’s business dealings, and it would be inappropriate for the Court to appoint Larry Jr. who

“has never been involved in Larry’s career or business, and it would be highly inappropriate to place him in a position of representing Larry’s estate.”

Shawn also objects to Larry Jr. acting as administrator on the grounds of conflict of interest; claiming Larry Jr owes a debt to his late father’s estate for $266,261 originating from a “secret account” through which, Larry made gifts “to various individuals from community property, without her knowledge.”

Shawn claims to have the right to declare the “gifts void and recover” between 50-100% of their value.

Additionally, Larry entered into a post-nuptial agreement limiting his ability to make testamentary gifts to his children. The holographic will would violate a valid post-nuptial agreement.

A court date has been set for March 25.

Statutory Wills

Luciano Paoli is 84 and made a will in 2007 – in late 2019 following changed financial circumstances he instructed solicitors to make a new Will. On 21 November 2019 Luciano’s solicitor prepared a draft Will based on Luciano’s final instructions, however, before that draft Will was executed Luciano suffered a stroke.

The Application 

Luciano’s wife Vlasta applied to the court pursuant to s 7 of the Wills Act 1936 (SA) (the Act) for the making of a statutory will reflecting the final instructions given by Luciano to his solicitor. 

The Court appointed a litigation guardian for Luciano.

Luciano and his wife Vlasta have been married for 39 years. There are no children of the marriage. Luciano has three children from an earlier marriage and is the stepfather of the Vlasta’s only child. 

Statutory Wills

Section 7 the Act, empowers the Supreme Court of South Australia to authorise a Will to be made on behalf of a person who lacks testamentary capacity, in situations where adults lose their legal capacity; or have never had testamentary capacity.

In doing so, the Court must be satisfied that: 

  • the proposed testator lacks testamentary capacity, and 
  • the proposed Will accurately reflects the likely testamentary intentions of the proposed testator, and 
  • it is reasonable in all the circumstances that the Order should be made.

The evidence provided in lost-capacity cases tends to be less problematic. As the Court has some indication whether the terms of the proposed Will reflect the likely testamentary intentions as the proposed testator was once able to give effect to their wishes and views.

The Application

An application supported by affidavit evidence must be served upon any person who may have an interest in the proceedings and will include any family members who would otherwise benefit under intestacy laws.

All of Luciano and Vlasta’s family members were served with proceedings and have had the benefit of legal advice; it was inferred they were content for the Court to make the proposed Will. Luciano had no contact or communication with one of his children for 30 years. After consideration, the Court dispensed with the need to serve proceedings upon her. 

The Decision

The Court was satisfied that the instructions Luciano gave to his solicitor in late 2019 for the making of a new will were reflected by the terms of the proposed will. The applicant established that it was reasonable in all the circumstances to make the orders sought. Although the estate is substantial, and the proposed Will leaves Luciano’s entire estate to Vlasta if she survives him. The Court was satisfied that would have been Luciano’s testamentary intention if he now had capacity. 

Bankruptcy and the Secret Trust

Maria Mammarella died on 18 October 2014; leaving a will dated 4 April 2014 appointing her daughter Marilena and Marilena’s husband, Donald, as joint executors and trustees. Maria left a one-fifth share in her estate to each of four other daughters Sylvia, Lucia, Lynette and Marilena; the remaining fifth share was left to her granddaughter Stephanie. (the share). 

Probate of Maria’s will was granted to the executors on 15 January 2015. The total net value of the estate was over one million dollars.

Bankruptcy

At the time Maria made her will Stephanie’s mother Rita was bankrupt; to be discharged on 24 December 2016. 

When a person is declared bankrupt, divisible property – including the bankrupt’s house, shares, vehicles (worth more than the threshold amount), vest in the bankrupt estate for the benefit of creditors.

Additionally, after-acquired property – including an interest in a deceased estate vests as soon as it is acquired by the bankrupt.

Rita (the plaintiff) claims that her daughter Stephanie (the defendant), received by the funds from the estate on trust for her. The alleged trust is said to have been a ‘secret trust’. 

Secret Trust

A secret trust arises when a testator tells a person (the donee) that they are to be given property on the testator’s death to hold on trust for a third party, to which the donee agrees. Despite its informality if the following elements are present a secret trust can be established and will be enforced by the court: 

• the intention of the testator to subject the donee to an obligation in favour of the beneficiary. 

• communication of that intention to the donee. 

• the acceptance of the obligation either expressly or by acquiescence. 

It is, therefore, a trust which the testator intends to create, that the court will enforce by requiring the donee to hold the property for the other’s benefit. 

Submissions

Rita submitted that she asked Maria to put her share into a trust with Stephanie until the period of bankruptcy was over as she was worried, she would lose her inheritance to creditors. 

Following the establishment of the alleged secret trust, the relationship between Rita and Stephanie deteriorated; with Stephanie obtaining a restraining order against her mother. 

Stephanie submitted that at no time did Maria indicate to her that a bequest had been made to her in the will and that it was to be held on trust for Rita and

“that the funds were to be given to my Mother once she had been discharged from bankruptcy.” 

Stephanie submitted that she assumed her mother was endeavouring to manipulate her into agreeing to her request

“I may have said to her, okay, but only to stop her pestering me.”

The court found that Rita failed to establish that Maria had an intention to impose any obligation on Stephanie at all; and was satisfied that there was no secret trust and that the bequest as made in the will was intended to be absolute. 

Out of time Family Provision claim overturned on appeal

Donald Whiteway died on 14 July 2003, aged 74. Donald married Sheila in 1956; although they separated in January 1984 they remained married until Sheila’s death in December 1985. There were two children of this marriage: Jane and Elizabeth.

In February 1987 Donald married Stephne; there were no children of this marriage. Donald left $25,000 each to Elizabeth and Jane, with the balance of the estate left to Stephne.

Stephne died, on 18 November 2016, aged 60 with no children. Stephne named her brother Adrian Haertsch, as her executor with Elizabeth and Jane receiving $100,000 each with the balance of the estate being left to Stephne’s siblings and their children.

Family Provision claim

Elizabeth, being unable to make a provision claim against Stephne’s estate under the Succession Act 2006 (NSW), made an application for provision out of Donald’s estate under the Family Provision Act 1982 (NSW) (”the Act”) seeking an order designating property in Stephne’s estate as the notional estate of Donald.

As her claim was some 12 and a half years out of time, she also sought an extension of time in which to make an application, under the Act. The court accepted that Elizabeth’s delay in making her application was sufficiently explained by:

(a) her reasonable expectation of benefit from Stephne’s estate as compensation for any disappointment attending administration of Donald’s estate in the interests of Stephne;

(b) the respect she paid to Donald’s concern for Stephne’s wellbeing, and for her ongoing relationship with Stephne, by deferring any claim she might have had until the death of Stephne; and

(c) the consistent assurances of future benefit she received from Stephne (in due course acted upon by Stephne), articulated by reference to a common bond with Donald.

In assessing what provision should be made for the Elizabeth out of Donalds notional estate, the primary judge granted an extension of time, designated $740,000 of Stephne’s estate, as notional estate of Donald, and made an order for a further provision of $250,000 to be made to Elizabeth out of that notional estate. The court considered that a larger grant would pay insufficient respect for Stephne’s reasonable expectation of testamentary freedom in disposition of her estate.

Appeal

On appeal, the NSW Supreme Court held that s 24 of the Act is concerned with beneficiaries of the estate and does not invite a broader “chain of causation” inquiry. As a corollary, there is no basis for Adrian Haertsch who did not hold property “as a result of” the distribution to Stephne from Donald’s estate.

Similarly, the general assurances of a testamentary benefit given to Elizabeth by Stephne were not “sufficient cause” for the application not having been made within time, as required by s 16(3)(b) of the Act.

Additionally, the primary judge erred in finding that there was no prejudice to Stephne or her estate in allowing the application out of time in circumstances where the strength of Elizabeth’s claim for provision was improved by Stephne’s death.

Teddy Pendergrass – Estate Litigation

Teddy Pendergrass the only child of Jesse and Ida Pendergrass was born on March 26, 1950, in Philadelphia. He first sang in church at 2, was ordained a minister at 10 learning to sing and play the drums as a junior deacon of his church.

Teddy found fame as the lead singer of Harold Melvin & the Blue Notes with hits: Wake Up Everybody, If You Don’t Know Me by Now, The Love I Lost, and Don’t Leave Me This Way subsequently covered by Thelma Houston in 1977 and the Communards in 1986. Houston’s version of the song became widely known for its association with the AIDS epidemic in the 1980s and 1990s

However, the proceeds from the Blue Notes’ success were not shared equally; on tour, Melvin enjoyed luxury accommodation while the other group members stayed in cheap motels. In 1976 Teddy quit the Blue Notes. Melvin responded by threatening the singer with bodily harm.

Teddy’s voice has been described as deep, rich warm and fuzzy, like someone hugging your body. Often referred to as “black Elvis” Teddy was tall, handsome and stylish; women found him irresistible, fathering three children by two different women, in the same year.

Shep Gordon offered to manage Teddy following a drug-off to see who could handle their drugs better; Teddy … collapsed after two days, when he came to, he and Gordon shook hands, and Gordon became his manager.

At Gordon’s insistence, Teddy began his infamous “Ladies Only” concerts with his next three albums going gold or platinum. Teddy received several Grammy nominations during 1977 and 1978, Billboard’s 1977 Pop Album New Artist Award, an American Music Award for best R&B performer of 1978, and awards from Ebony magazine and the NAACP.

In 1982 following a car accident Teddy was left paraplegic however he continued to successfully record. He formed the non-profit Teddy Pendergrass Alliance in 1998 to advocate for those with spinal cord injuries

Teddy suffered complications following colon cancer surgery dying on January 13, 2010. Following Teddy’s death, probate of his entire estate was granted to his wife, Joan.

However, his son Teddy Jr denied the legitimacy of the Will — an amendment of an earlier document naming him as his father’s sole beneficiary – claiming that his father lacked the capacity make such a decision and that it had been signed by Joan, not Teddy.

Teddy Jr. claimed he possessed the sole copy of his father’s legitimate will.

Montgomery County Pennsylvania Orphans Court, declared the Will produced by Teddy Jr. as fake, finding that his testimony about the will was “wholly lacking in credibility,” similarly the notary public, who, certified the Will and testified to its authenticity in court — further complicated the $850,000 six-year-long legal battle.

However, the conflict exacerbated animosity among family members with relatives and friends picking sides during the case. Joan commenced an action against Teddy Jr and his lawyers to recover costs.

De Facto, Intestacy, Tenants in Common

Phung Thanh Mac (“the deceased”) died intestate with a relatively small estate in November 2019. An intestate estate in Queensland is distributed under Part 3 of the Succession Act (“the Act”). Nga Thi Vu and the deceased lived in a de facto relationship from September 1994; therefore, she is a spouse under of s 5AA of the Act.

Who takes under Intestacy

In this case, those who can take under the intestacy are the deceased’s:

(a) spouse, and

(b) any children who have survived him.

Under Part 3 of the Act, Ms Vu is entitled to $150,000 together with any household chattels and, on the basis that more than one child of the deceased survived him, one-third of the residue. The deceased estate consists of the home owned with Ms Vu as tenants in common (valued at $310,000) and approximately $80,000 in a trust account. 

Tenants in Common

When property is owned by parties as tenants in common it means they co-own a property in defined shares that they can dispose of as they wish; meaning that there is no right of survivorship.

Ms Vu made an application to acquire the deceased’s interest in the home they owned as tenants in common.

The applicant (the administrator of the deceased’s estate) seeks an order under s 6 of the Succession Act that he is justified in:

(a) transmitting to Ms Vu, under s 39(3)(b) and s 39C of the Act, the interest of the deceased in the home for $156,052.40 (“transfer value”), and

(b) setting off the transfer value against the entitlement of Ms Vu to the estate of the deceased.

The applicant believes the deceased had four children from a marriage in Vietnam. He did not have contact with them during his de facto relationship with Nga Vu; she does not know the names of the children or where they are. The applicant engaged a private investigator to find any surviving children without success. 

The Decision

The Court held that from the evidence submitted it is appropriate for the applicant to proceed on the basis that the deceased was survived by more than one child allowing distribution of the estate on that basis and to make further inquiries so that any surviving child can receive his or her entitlement. Noting that it would be a nonsense if Ms Vu could not obtain sole ownership of the shared home by setting off the statutory legacy due to her as the only way for her to generate the funds necessary to pay the transfer value would be to sell the house.

The applicant, therefore, is entitled to the direction he seeks under s 6 of the Act.

Step Daughter, Survivorship, Family Provision & the Notional Estate

Frank Radinksi died in September 2018 at the age of 85 he married twice. Frank had two daughters Anna and Blzena (“the Plaintiff”) with his first wife Jela who died in 1983. He later married Terezija who had a son and a daughter (Frank’s stepdaughter) Tereza Osrecak from a previous marriage. Terezija also predeceased him, dying in 2015.

Frank’s main asset was his home which was owned by Frank and Tereza as joint tenants. Therefore, Frank’s share passed to Tereza by survivorship; the value of a half share in the property is approximately $410,000.

Frank’s last will made in 2011 left his estate to Terezija, if she predeceased him, (which was the case) the estate went to Tereza (the second defendant). Jasna Vukic (the first defendant) Tereza’s daughter, was appointed executor of the deceased’s estate. On Frank’s death all his assets passed to Tereza; as the estate was small (around $5000) there was no formal grant of probate.

Blzena received nothing from her father’s estate. She seeks an order for provision out of his estate under the Succession Act 2006 (NSW) in the form of a lump sum payment of between $200,000 and $250,000. To fund this payment, she seeks an order designating a half share of the property as Frank’s notional estate.

As I have discussed in previous posts in a Family Provision Claim the court must balance the testator’s moral obligation for the maintenance and education of a defined class of beneficiaries with the testamentary freedom to leave their estate as they wish. However, as Blzena is an adult beneficiary who has reached retirement age the Court held that any entitlement to family provision is best seen as a provision for “advancement” rather than “maintenance” 

The Court accepted that Frank failed to make adequate provision for Blzena’s advancement; finding the provision which “ought” to be made is a legacy for $220,000 to be taken from Frank’s half share of the property as notional estate. 

A Will, Family Provision & the Surveillance Devices Act

Robert Rathswohl, sought a family provision order under the Succession Act 2006 (NSW) from his father’s estate for his maintenance and advancement in life. Robert’s sister, Yvette Court, is the executor of their father’s estate.

In January 2017, while on a family visit to their mothers nursing home an argument arose where Yvette protested that Robert and their sister Lisa Davies had left the care of their elderly parents to her alone.

Later that day Robert and Lisa drove their father back to his home; after discussing the events at the nursing home, they looked for a Will the father had made in 2007 – but could not find it. Robert and Lisa took prompt steps to have a replacement Will executed by the father; leaving his Estate to his children equally.

On 15 March 2017, the father executed another Will leaving the family home to Yvette and funds in a bank account to Robert and Lisa. Yvette promptly sent a text to her brother advising that a new Will, power of attorney and enduring guardianship had been executed. In cross-examination, Robert gave the following evidence:

Yvette … moved into the house. One week after she moved in, she texted me and Lisa, ….saying that dad had left her the house. Lisa and I both thought that was outrageous because we knew there was a will but Yvette didn’t know there was a will previous to that”

On the evening of 29 April 2017,  Lisa recorded a conversation with the father using her mobile phone, without his knowledge or consent

 “to prove that Yvette wasn’t there every day like she stated she was”.

Objection was taken under s138 of the Evidence Act 1995 (NSW) that the recording was improperly or illegally obtained. With the agreement of counsel, the Court listened to the sound recording to consider whether it was reasonably necessary for the protection of Lisa’s lawful interests under s7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW), and thus not an offence under that Act.

The Court stated that whilst none of the children had a legal right or title to insist that their father leave his Will in any particular manner, they might have an interest in ascertaining whether Yvette’s claim to warrant a greater entitlement to the father’s Estate was truthful or exaggerated.

The Court accepted that when Lisa had spoken to her father over the years about his Will, he consistently stated that his Estate would be divided equally amongst the three children. The dispute between the siblings had crystallised into a real and identifiable concern about the imminent potential for significant harm to Lisa’s lawful interests. Similarly, the recording reflected Lisa’s concern for her father’s welfare.

However, the Court was concerned that elderly parents being secretly recorded by those who believe they are entitled to receive a distribution from an Estate is unpalatable and unseemly. It not only breaches the testator’s privacy but, a parent may say what they perceive the listener wants to hear to avoid “home truths” if they think it is likely to lead to conflict; the recording may also contain evidence which is unwittingly damaging to the person who made it.

A Spouse, a De facto & Intestacy

Brian Palombo died, suddenly and unexpectedly, at the age of 55 in October 2018 without a Will. Brian married Gail in March 1983, migrated to Australia in 1985 living with his parents at their home in St Clair (the St Clair property). Moving to their own home in St Clair in 1986, Brian and Gail raised three children, Ashleigh, Emma and Kristy.

Brian and Gail separated in about July 2010. Immediately before their separation, they had lived together in a property at Emu Plains, Gail continues to reside in the Emu Plains property. Following their separation, neither Brian nor Gail, initiated, negotiated or applied for a property settlement or entered into a Financial Agreement, under the Family Law Act 1975 (Cth).

Jacqueline Bailey met Brian in 2011 she had separated from her husband in 2010 and they divorced in 2013. Brian’s mother died in September 2010; when his father died in July 2013 Brian purchased the St Clair property from his father’s estate. Jacqueline has remained living in the St Clair property, which is still registered in Brian’s name.

Chapter 4 of the Succession Act 2006 (NSW) (“the Act”) provides the order in which your eligible relatives will inherit your estate if you die without a will.

A spouse is defined as person who was married to, or was a party to a domestic partnership immediately before the death of the intestate -which may include a de facto spouse. If the intestate leaves more than one spouse and children who are all issue of one or more of the surviving spouses, the spouses are entitled to the whole estate in shares determined by the Act in accordance with inter alia a distribution order of the court.

In May 2019, Ashleigh’s application for a grant of Letters of Administration was rejected as she had no “interest” in the deceased’s estate. On 11 June 2019, Jacqueline lodged a caveat requiring that

“[n]o grant of Letters of Administration be made in the estate of [the deceased] … without prior notice to me”.

The Court was satisfied the St Clair property, owned solely by the deceased, at the date of his death, forms part of Brian’s intestate estate. Gail is a spouse as she was married to Brian immediately before his death and there had been no divorce order made to dissolve their marriage.

Similarly, Jacqueline and Brian were not married to one another or related by family; their relationship wasn’t a registered relationship, within the meaning of the Relationships Register Act 2010 (NSW) and had not resulted in the birth of a child. However, the Court was satisfied that Jacqueline and Brian were in a de facto relationship for more than two years, and although Brian was the sole registered proprietor of the St Clair property, Jacqueline treated it as her home.

Section 126(3) of the Succession Act 2006 (NSW) provides the Court with the ability to distribute Brian’s estate between Jacqueline and Gail in any way it considers just and equitable.

The Court took the view that a distribution order which provides Jacqueline with the St Clair property, unencumbered, (the St Clair property was security for two loans that are liabilities of the deceased’s estate) and a lump sum of $500,000, would ensure that she is secure in accommodation, enable her to discharge the mortgage on her investment property, and still leave her with a lump sum of about $250,000 for exigencies of life. Gail received approximately $2,117,841 out of the estate and retains the death benefits that she has received.

Knowing Receipt, Knowing Assistance; Barnes v Addy

Barnes v Addy (1874) outlined what may constitute third-party liability concerning breach of trust or fiduciary duties: ’Knowing receipt’ and ‘knowing assistance’.

Henry Barnes appointed William Crush, John Lugar and John Addy to be testators and executors of his Will with a sum of money to be invested as the basis of an annuity for his widow, three daughters and son.

John Addy, as the sole remaining trustee, appointed a sole trustee to half the trust (with an indemnity) against the advice of his solicitor, William Duffield. However, Duffield drew up the deeds of appointment and indemnity and introduced Addy to a stockbroker who transferred money to the trustee.

The trustee mismanaged the trust property and became bankrupt. Barnes children sued Addy and Duffield; the Court held that the third parties could be liable for a breach of trust in two circumstances, known as the two ‘limbs’ of Barnes v Addy: knowing receipt and knowing assistance

To prove ‘knowing receipt’, the principal must establish the recipient knew that the property they received was a transfer of trust property in breach of the trustee’s duties.

To prove ’knowing assistance’ there must be a breach of trust or fiduciary duty by a third party who knowingly assists in the breach.

In a recent decision, the High Court of Australia insisted on strictly applying Barnes v Addy and holding that the breach must be dishonest and fraudulent.

Where the two limbs in Barnes v Addy are established, a third party will be held to be a constructive trustee with the party bringing the claim against them having the same remedies as they would have against a constructive trustee.

The court accepted that Duffield, never knew nor suspected any dishonest purpose, or believed that any actual fraud would result from what was done; it was therefore unable to hold him responsible.