As the holographic, or handwritten will, of Thomas Kinkade names his girlfriend to receive the bulk of the estate, many issues still exist in this high-maintenance case, due to all of the complex legal issues. The Legal Broadcast Network spoke with Robert Robertson, an attorney in Austin, Texas and expert in probate law, about the big issues that arise with holographic wills.
The Kinkade case references an existing formal will he had with his wife. This codicil, or amendment, may have an impact on the previous will, Robertson says. There are big issues with documents like holographic wills, such as the surfaces on which they are written. Robertson references a case where a farmer was trapped under his tractor and was able to write his will on his fender. Other surfaces, such as Post-It Notes, grocery bags and greeting cards, to name a few, also come into play. Another example is hotel stationary. Robertson says that some states have been know to say that if a will is written on hotel stationary, it is not a written will because the name of the hotel is at the top and it is typed.
Another big issue is intent and what the intent of the person writing the will is. In the case of Kinkade, the question is whether he intended that the $10 million just be used for the museum operations in the house that he was going to give his girlfriend or did he intend for her to get any cash from it, Robertson says.
Handwriting and authenticity is another component of holographic wills and whether the person actually did hand write it. Additionally, there are different state statutues that spell out the contents that a holographic will has to have and it may say that they need to be dated and where the date goes. Many signatures, or marks, are illegible and you have to establish whether the mark is that person's signature, Robertson says.
Capacity of the signer is also important and whether they were under undue influence. Kinkade's holographic will was illegible and given his history of alcoholism, undue influence may come into play in this case. Robertson says that most states say that the mere fact of intoxication doesn't mean a person can't be established to have intended to write a will. In other words, just because a person is intoxicated doesn't mean they can't make a binding contract, as long as they knew they were contracts.
Robertson says that this case "spells settlement as far as I'm concerned and the attorneys' fees could go through the roof."
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