What does a homemade Will need in order to be valid?
The Queen of Soul, Aretha Franklin, passed away on 16 August 2018 without leaving a Will. Under the intestate succession laws of Michigan, as Franklin was not married, her entire estate passes in equal shares to her four sons; Clarence, Edward, Kecalf, and Ted. However, in May 2019, two homemade Wills were found at Franklin’s residency; one from 2010, found in a locked cupboard, and the other from 2014, found in a notebook lodged between Franklin’s sofa cushions. A dispute consequently arose between Franklin’s children; Ted claimed that the 2010 Will was the true final Will of Franklin, whereas Edward and Kecalf argued that it was the 2014 Will.
Typically, the effect of a later Will is to revoke all previous Wills. One would assume therefore that the arguments put forward by Edward and Kecalf in respect of the 2014 Will were valid. However, the 2010 Will was significantly longer; 11 pages compared to the 4 paged 2014 Will, and had been signed on each page, adding further weight to its validity. The question was therefore whether the later 2014 document was a valid Will.
A holographic Will is a Will which is written and signed by the testator entirely in their own hand, which can be valid in both UK law and the law of Michigan if certain criteria are met.
In the law of Michigan, for a holographic Will to be valid, it must be signed, dated, and the material portions of the Will written in the handwriting of the testator. In the case of Franklin’s 2014 Will, the jury found that each of these criteria were met and found in favour of Edward and Kecalf. However, the same ruling would not have occurred in the UK courts.
The UK law around holographic Wills sets forth a greater threshold than that of Michigan; the additional requirement for the signing of a holographic Wills to be witnessed. Under Section 9(c) & (d) of the Wills Act 1837, a testator must sign in the presence of two or more witnesses present at the same time with each witness themselves also signing the Will.
Consequently, as the 2014 Will had no witnesses, it would have been found to be invalid in the UK, as, indeed, would the 2010 Will, which also lacked any witnesses. If the Queen of Soul were from the UK, and her sons making their claims in a UK court, Franklin would therefore have been deemed to have died intestate.
The benefit of having witnesses to a Will, other, of course, than it being a legal requirement for a valid Will in the UK, is that they can speak as to the circumstances of the production of the Will and shed integral light on the testator’s intentions. One of the key arguments put forward by Ted was that Franklin did not intend for the 2014 Will to be her final Will and that it was only a draft; any witnesses may have been able to speak to this fact as it is unusual to go to the effort of having witnesses witness and sign a draft Will.
In the UK, a homemade Will, written by hand, found months after death and tucked between sofa cushions will be legally valid so long as it is properly signed and witnessed in accordance with Section 9 of the Wills Act 1837 (and is not subsequently overturned on one or more limited legal grounds). However, this is far from the ideal course of action for a testator to take.
Franklin’s children were embroiled in a taxing and costly legal dispute that lasted over 4 years from the date that the homemade Wills were found, and that was only a claim in respect of validity. There is nobody that can speak as to the circumstances surrounding the drafting of Franklin’s 2014 Will and whether she was coerced, unduly influenced, or properly considered the effect of the Will she was signing; Franklin’s son Clarence, who has undisclosed special needs, for example, was written out of Franklin’s 2014 Will with only directions included to her other sons to support Clarence’s needs. Clarence has been under legal guardianship since at least 1989 so it is difficult to imagine that Franklin was concerned about Clarence’s use of the money from her estate in 2014. This is all speculation, of course, but did not prevent further arguments being advanced on behalf of Clarence that he wasn’t adequately provided for, further entangling the Franklins in legal disputes.
This story is a bitter reminder of the importance of involving legal professionals in the drafting of Wills to assist with both estate and, of course, tax planning (a further issue now faced by the Franklin family). It also demonstrates that disputes can arise, regardless of the size of the estate or the identity of the testator. The Contentious Trusts and Probate Team at Birketts LLP have a wealth of experience in dealing with all types of probate dispute and work closely alongside our expert Private Client Team.
This article was written by Lauren Coote, Associate. For any enquiries, please contact Lauren or another member of our team on 01473 406386 or at email@example.com.