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Did Artist Thomas Kinkade Change His Will While Drunk?

It’s estimated that one in twenty American homes have a Thomas Kinkade painting hanging on the walls.  The self-named “Painter of Light” turned his gift of rendering landscapes and other words of art into a tremendous commercial endeavor.  In fact, his numerous corporate holdings reportedly topped $100 million in annual sales some years, primarily due to mass reproduction of his works.   Thomas Kinkade

But the Painter of Light was not without his demons, primarily alcoholism and a failed marriage.  He died suddenly at age 54 caused by “acute intoxication” from  alcohol and Valium, on April 6, 2012.  His wife, Nanette, had filed for divorce two years before, and the couple was legally separated.  Kinkade died while living with his girlfriend of 18 months, Amy Pinto-Walsh.

The girlfriend and estranged wife began fighting almost immediately after Kinkade passed.  Pinto-Walsh was kept from the funeral and slapped with a lawsuit for breach of a confidentiality agreement.  The family wanted her to remain quiet and not share any personal details with the media.

Pinto-Walsh did not rest on her laurels.  She went to probate court to enforce two handwritten wills (called “holographic” wills) that she says Kinkade wrote for her benefit in late 2011.

These two handwritten wills are interesting, to say the least.  The first one, dated November 11, 2011, bequeaths to Pinto-Walsh the sum of $10 million dollars “from my corporate policy” and his house and property next door “for her security.”

The second will, dated December 11, 2011, includes both of these same bequests to Pinto-Walsh, but further clarifies that the $10 million gift is to be used by Pinto-Walsh to create a museum to show the public his works.

But what is most interesting about these two purported wills is not what they say, but how they are written.  They are  so illegible that calling them “chicken scratch” may be deemed offensive to chickens.  This from a man who left behind an estate reportedly worth more than $66 million because he was so gifted in painting popular works of art.

You can read the two handwritten documents for yourself, courtesy of The Mercury News.  In fact, that same publication had the wills reviewed by a handwriting expert who concluded that, unless the writer of them was suffering from Parkinson’s disease (and nothing suggests that Kinkade was), the author of those documents “was three sheets to the wind.”

Certainly, they don’t look like they were written by a skillful painter, unless of course he was drunk at the time.

But does this mean the wills would be invalid?  No, not necessarily.  Even handwritten wills are valid in California (when signed and dated at the end, as these were), unless the person who created them was not of sound mind or created the wills due to “undue influence.”

Undue influence does not refer to the influence of alcohol.  Rather, it is when someone coerces or otherwise improperly influences someone to create or change a will or other legal document.  But, being drunk can make someone far more susceptible to being influenced improperly.

And being drunk does not mean that the will creator lacked the mental capacity to create a will.  It’s really a question of how drunk he was, and what, if anything, was said to him to convince him to write the wills.

Kinkade’s estranged widow will seek to have the two wills thrown out, arguing that there was undue influence by Pinto-Walsh and that Kinkade was not of sound mind when he wrote them due to drunkenness.  Her representatives stated that Kinkade and his wife had created a “formal, written and irrevocable” estate plan previously and they will try to have the prior estate plan enforced in court.

Pinto-Walsh says the two wills do represent Kinkade’s actual wishes.  She says they were shopping for engagement rings and planned to marry as soon as the divorce was finalized, and he wanted to protect her.

This court fight promises to be long and nasty.  Last week, the two sides were in court arguing over whether the probate proceeding should be held in open court, or in a private arbitration proceeding.  Pinto-Walsh won the court hearing and the Judge ruled the case will be decided in probate court, not arbitration.  The parties return to court on August 13th, but the lawsuit will undoubtedly drag on for many months — if not years — until the issue of whether these two purported wills are valid is laid to rest.

And it will be an interesting one to watch.  It is not, of course, without an important lesson or two.  Taking a shortcut like creating a handwritten will, when someone already has a complete estate plan, is bound to lead to fighting in court.  If Kinkade’s wishes did change, why not have the estate plan updated accordingly?  Even the lawyer representing the widow’s interests in the estate admitted that Kinkade had spoken to his lawyer about changing his estate plan to leave something for Pinto-Walsh.

In fact, Kinkade should have updated his estate plan even if the two wills were not what he wanted.  His marriage was obviously over — the divorce was started two years before and he was with his girlfriend for 18 months.  All estate planning documents should be reviewed and updated with critical life events like divorces and plans to remarry.  No one is promised tomorrow.  While Kinkade was only 54 and his death was sudden, he should not have waited to update his will, trust and other documents if he did have new wishes.

Because he failed to do so, everyone will pay the price by a costly, public fight over whether his written wishes — apparently made while he was drunk — were valid or not.

Don’t delay updating your will and trust if your marriage is done, even if the divorce proceeding is still dragging on.  Tom and Katie, take note!

By Danielle and Andy Mayoras, co-authors of Trial & Heirs: Famous Fortune Fights!, husband-and-wife legacy expert attorneys, and hosts of the national television special, Trial & Heirs:  Protect Your Family Fortune! For the latest celebrity and high-profile cases, with tips to protect yourself, your loved ones, and your clients, click here to subscribe to The Trial & Heirs Update.  You can “like” them on Facebook and follow them on Twitter and Google+.

For legal help in Michigan, visit Andy and Danielle's law firm's websites, The Center for Elder Law and The Center for Probate Litigation.