Achieving Results, Exceeding Expectations

Estate Planning

Just because you can handwrite your will doesn’t mean you should: Lessons from Aretha Franklin

by Jackie Culler

When Aretha Franklin died last year, many were shocked to hear that the Queen of Soul had not left behind a will or trust with instructions for how to handle her estate, estimated to be worth tens of millions of dollars. Even with small families or families with little wealth, disputes tend to arise when an estate goes through probate. One could only imagine the fight Aretha’s four sons and other relatives were about to have in court.

After nine months, it seemed as if the family was finally making progress and getting closer to settling their differences. The most likely, and seemingly fair, outcome was to be a division of the assets evenly among Aretha’s four sons. However, things have recently gotten a lot more complicated as, just last month, three handwritten wills (also called holographic wills) were discovered in Aretha’s suburban Detroit home.

Two of the wills are dated 2010 and were found in a locked cabinet after a key was found, while the other is dated 2014 and was written inside a spiral notebook found under the cushions of a sofa. While the newly discovery wills illustrate that Aretha wanted her four sons to be taken care of, her plan was not necessarily to equitably divide her assets among them.

The question on everyone’s mind now is: Are these wills even valid?

Under Section 2502 of Michigan’s Estates and Protected Individuals Code (“EPIC”), a will that is handwritten by the testator (the person making the will) may be deemed valid, but only if very strict requirements are met:

  • The holographic will must be dated;
  • The testator must sign the holographic will;
  • Material portions of the will must be in the testator’s handwriting; and
  • It must be evident that the document was intended to serve as the testator’s will.

Determining whether these requirements have been met is almost always a task left to the court, meaning that the fate of the testator’s estate rests in the hands of a single judge.

In Aretha’s case, it is likely that the first three requirements have been met. All three wills are clearly dated, signed, and written in Aretha’s handwriting. Where the real controversy lies is in the question of intent: Did Aretha intend for these documents to be her wills?

Some have argued that the documents appear to be more like diary or journal entries because they contain many tangents where Aretha discusses non-estate related topics. Others claim that the documents could merely be notes Aretha wrote down for the purpose of drafting a future will. Finally, there are those who claim that enough evidence does exist, at least in the case of two of the three wills, to conclude that Aretha intended for the documents to be her wills. A hearing is scheduled in the matter for June 12 at the Oakland County Probate Court.

We know from Aretha’s situation that, while holographic wills may work in certain circumstances, the only way to rest assured that your final wishes will be carried out as you intended is to have a traditional will drafted by an attorney, with two or more witnesses present at the signing that can attest to your signature, mental capacity, and intent.

You should also keep in mind, however, that a will can only go so far. Many individuals and families would benefit greatly from creating trusts to protect their assets. Trusts allow for much more flexibility and protection and can accomplish a number of things that traditional wills cannot. If you have not thought about your estate plan yet, or if it might be time to revisit it, these are certainly things to consider.