By: Robert Moore
You may have seen the news story about Aretha Franklin’s will. Aretha, the famous singer, died in 2018. A will executed in 2010 was originally thought to be her last will and the document that controlled the distribution of her assets to her heirs. The 2010 will appears to have been a formal will, prepared by an attorney, and properly executed by Franklin. However, a 2014 handwritten will was later found in a notebook in Franklin’s couch. Some of the heirs of Franklin’s estate disputed the validity of the 2014 will. The 2010 left Franklin’s home to three sons while the 2014 will left her home to only two sons. The issue was recently resolved by a Michigan jury. The primary issue was: can a handwritten will be a valid will?
The answer in most states, including Ohio and Michigan, is yes. Known as a holographic will, a person can write their own will and the will can be valid provided it is signed and witnessed by two adults. Generally, the holographic will must be in the person’s handwriting to confirm that they did, in fact, write the will themselves. So, even a will written by hand on notebook paper found in someone’s couch, like Aretha’s will, can be valid. Presumably, two witnesses were present when Franklin signed the handwritten deed. A few lessons can be learned from Aretha Franklin’s situation:
- Revoke the prior will. When executing or updating estate planning documents, the new or updated documents should clearly revoke the prior relevant documents. If Aretha’s 2014 will would have expressly revoked her 2010 will, the matter may not have gone to court because her intent to use her 2014 will would have been much clearer.
- Every requirement of a will matters. If Aretha’s will would not have been signed, it would not have been valid. The law vigorously enforces the technical requirements of estate planning documents. An unsigned will is typically not enforceable even if it is clear the person intended to use the will but did not sign it in error. Aretha’s will met all the requirements of a holographic will in Michigan and was deemed valid.
- Secure your estate planning documents in a safe location and make sure someone knows where they are. Whether a desk drawer, safe or filing cabinet, your estate planning documents should be held in a protected location and the executor and/or heirs should be aware of the location of the document for easy access. Also, the law firm drafting the documents usually retains a copy in their files.
- Put a “No Contest” clause in your will. A No Contest clause disinherits any heirs who challenge the validity of a will. If Aretha’s 2014 will had included a No Contest clause, the son disputing the will may have not initiated the lawsuit in fear of losing his inheritance in her valuable song royalty rights.
- Every change in an estate planning document should be a formal change. Scratching out a line on a will or adding a provision by hand will likely not be effective. If a change needs to be made to a document, a formal amendment should be drafted and executed or the document should be changed and re-executed.
- Casual execution of documents can cause conflict among heirs. Because Aretha took a more casual approach to her 2014 will, heir heirs ended up in a lawsuit and family relations are likely strained. Have an attorney assist with your documents so that formalities are followed and conflicts among heirs are minimized.
- Take the time to visit with an attorney for your documents. No one likes spending money on legal fees but a modicum of legal fees preparing estate planning documents can save heirs many thousands of dollars in litigation fees.