As famed American painter Thomas Kinkade leaves a holographic will, a battle over his estate is brewing between his soon to be ex-wife, girlfriend and children. Retired Superior Court Judge of Santa Clara, California Eugene Hyman says that a holographic will is written in a person's handwriting, doesn't require eyewitnesses like a regular will but does need to have the intent of being a testamentary instrument and state the purpose of the will. In the case of Thomas Kinkade's holographic will, the handwriting reads that he was leaving all of his possessions to his girlfriend.
In his holographic will, Kinkade does not void any prior wills and while Judge Hyman is not sure if there were any, he says it is usually pretty standard fare to void any prior wills. Hyman notes that Kinkade doesn't address his children in this will and if this happens, the assumption is that the person made a mistake by not including his children. If you have two wills and the second will doesn't void all prior wills, the prior will still exists to the extent that they're not inconsistent, says Hyman.
Kinkade still has a wife, as their divorce is still not final, so she has her community property interest that she is still entitled to get, regardless of what any will says, according to Hyman. Additionally, his wife is probably still entitled to administer the estate and if she doesn't want to or can't, then the children would have preference. The girlfriend would be the last one appointed in this situation.
With a holographic will in avoiding probate, or avoiding the necessity of an attorney, one needs to address the tax aspects of the estate, which Judge Hyman says the average person is not capable of and good estate planning would be necessary to avoid probate.
Another issue with Kinkade's holographic will is whether he had the capacity to write the will or if he was under undue influence, given his history of alcoholism. Judge Hyman says that if he were the wife or family member, he'd be attacking this as Kinkade might not have had the ability to do what he was doing and saying that he was of sound mind.
Judge Hyman believes there is going to be a settlement, given the $10 million + valued size of Kinkade's estate and he's pretty sure the girlfriend will receive a healthy chunk of change but that the family will get the bulk of the estate.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.