Stormy Daniels’s Oral Will: Noncupative Wills Make For Risky Estate Planning

Stormy Daniels (Photo by ROBYN BECK/AFP/Getty Images)

Last week, Stormy Daniels with Kevin Carr O’Leary released her memoir, Full Disclosure, published by St. Martin’s Press.  The book delivers Daniels’s vivid narrative of her 2006 Lake Tahoe meeting with President Donald Trump and the drama that ensued from her execution of a Non-Disclosure Agreement prior to the 2016 election. The memoir, written over the course of 10 years, poignantly reveals details of Daniels’s humble Louisiana childhood and her path to a prolific career as an actress, director, and writer. With candidness and humor, Daniels hits all of the marks for an entertaining celebrity memoir, all the while maintaining sentimentality as she reflects on her lifelong passion for horses, her romantic relationships, and most importantly, her enduring love for her young daughter. As a result of the latter, Daniels inadvertently teaches us a lesson in trusts and estates.

The final chapters of Full Disclosure describe the tremendous fear that Daniels felt following the Wall Street Journal’s January 2018 reporting of a Non-Disclosure Agreement that she later argued in federal court is invalid.  The Wall Street Journal revealed Michael Cohen paid Daniels $130,000 to stop her discussing her 2006 encounter with President Trump. Cohen later admitted, under oath, to making the payment. President Trump also admitted that Cohen was his attorney with regard to this matter.

Daniels’s March 6, 2018, lawsuit and her memoir allege that she felt intimated by Cohen and that she was scared into not speaking about the 2006 incident. By example, Daniels describes a 2011 encounter with an unknown a male individual in a Las Vegas parking lot. The individual warned Daniels to leave President Trump alone and she felt scared for her and her daughter’s safety.  Daniels’s fear and concerns grew stronger following her the airing of a March 2018 interview with Anderson Cooper on CBS’s 60 Minutes.

Following the program, she received hundreds of messages from the public who made various threats against her and her daughter. In Full Disclosure, she describes one message which stated: “Your child should be euthanized because she would be better off than with you.” Feeling as if her death was imminent, Daniels made her friend record a video wherein she directs the disposition of her estate upon her passing. Daniels refers to the recording as her last will and testament, writing that she was “never so direct about anything” in her life and that she had “the clear-eyed vision of a person about to die.” The recording reveals detailed information about her life insurance policy and specific distribution instructions. She also advises as to the care of her beloved horses and directs the sale of one horse so that the proceeds can be used for the care of her daughter.

Daniels’s recording is an oral will, also known in the law as a nuncupative will. An oral will is rarely enforceable in a court of law, although there are a few specific exceptions, such as when a written will is nearly impossible to execute. Oral wills are problematic because they raise questions as to authenticity and fraud. In California and Texas, where Daniels resides, oral wills are not admissible for probate. In New York, they are permissible under certain circumstances, for example when made by a member of the armed services in active duty during a war or a mariner is at sea.

Despite our society’s technological advancements and reliance on electronics, wills, unlike many other legal documents, require original signatures and in-person witnesses. A will is not accomplished by an electronic survey or a text to a friend.  Handwriting an entire will, known in the law as a holographic will, is generally unacceptable except in certain limited instances.

When executing a will, states require particular formalities including that the testatrix makes certain statements as she signs the document and the witnesses attest to her ability to execute. Questions as to the validity of a will often hinge on the disposition of a testatrix, the testimony of the witnesses, and the strength and character of the testatrix’s signature. To offer a will for probate, the original document with a real signature must be filed.

It makes dramatic sense that Daniels, an artist, chose film to air her final disclosure, although it is her imminent fear of danger that prompted the recording. If anything, Daniels  teaches us that we should not wait until an emergency to manage our affairs. Given Daniels’s young daughter, her case against President Trump, a pending divorce, and her growing estate, it behooves her to properly prepare and execute her last will and testament. If the last six months are any indication, Daniels’s continued disclosure mandates the appropriate protection.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at [email protected]

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