17 August 2023 by Olivia Pisapia

Say a little prayer

The Queen of Soul, Aretha Franklin, died in 2018.  Initially, it was thought that she had not made a Will to govern who would inherit her multimillion-dollar estate.

Around 6 months after her death, Aretha’s niece found two handwritten Wills.  One was dated June 2010 (‘the 2010 Will’) and another dated March 2014 (‘the 2014 Will’). Proceedings have been ongoing in America since 2019 to determine which, if either, of the Wills are valid.

The 2010 Will was found in a locked cabinet in Aretha’s home alongside other important legal documents, whereas the 2014 Will was found within a notebook that was nestled in the side of the sofa.

Aretha had four sonsTheodore White, Kecalf Franklin, Edward Franklin and Clarence Franklin.

Pursuant to the 2014 Will, all four sons would each receive equal shares of Aretha’s music royalties. However, one of the main assets of the estate, the family home reportedly worth $1.1 million, was left to Kecalf and his grandchildren only.

The 2010 Will appointed Theodore as one of the executors and provided that the estate be distributed evenly but, in order for Kecalf and Edward to benefit, they must take business classes and get a certificate or a degree otherwise they would not receive anything. There was no mention of this condition in the 2014 Will.

Kecalf and Edward argued that the estate should be distributed pursuant to the 2014 Will. Theodoreargued to the contrary and suggested that the 2014 Will was simply a draft with illegible notes scribbled on it and it was not intended to be relied upon.  Theodore argued that this is why it was notprofessionally prepared (although the 2010 Will was not either) or safely stored away.

The fourth son, Clarence, was not involved in the proceedings.

Last month, in American court proceedings, it was held that the 2014 Will was valid.

Homemade Wills in the UK

In the UK, handwritten and homemade Wills are perfectly acceptable but, as they are prepared without the assistance of a solicitor, they are often challenged.

There are several grounds on which a Will can be challenged in the UK. The most common reasons are:

  1. The testator (the person making the Will or Codicil) was unduly influenced to do so or the Will was obtained by fraudulent calumny (i.e. where somebody has “poisoned” the testator’s mind).
  2. The testator did not have the relevant testamentary capacity to execute the Will.
  3.  The testator did not know or approve the contents of the Will.
  4. The testator did not execute the Will or Codicil correctly.

In the UK, a testator is free to prepare their own Will and store it wherever they wish. Even a Will scribbled on a scrap of paper can be admitted to the Probate Registry, provided it has been executed correctly and in line with the strict rules set out in the Wills Act 1837, namely:

  1. The Will must be in writing.
  2. It must be signed by the testator (or some other person by their direction and in their presence).
  3. It must appear that the testator intended by his signature to give effect to the Will.
  4. The testator signs in the presence of two or more witnesses who are present at same time.
  5. The witnesses each sign the Will in the presence of the testator.

Practical tips

This case has certainly highlighted some important practical points that should be considered by all, to avoid lengthy and costly probate disputes arising in the future.  

Here are a few of our top tips:

  1. If you have made a first draft of a Will or if you have received a draft document from a solicitor,but it is not the final version and you wish to amend it, then you should not sign it and you should make sure it is clearly stated that it is only a draft version and is not intended to be relied upon.
  2. Always inform your chosen executor that they have been appointed and let them know where your original Will is stored.
  3. Given how important a Will is, it is best practice to store it in a safe place. Most solicitor firms have a safe storage where they can store your Will free of charge. Your solicitor should also be able to register your Will on the National Will Register for you and this is an invaluable service as it can help family members or friends locate your Will on your death.
  4. If you have previous Wills in your possession that are no longer valid because you have made a later Will, then you should ensure you destroy the earlier Wills.  Similarly, if you have a Will stored at a firm of solicitors and you then make a new Will elsewhere, you should inform the previous solicitors of that.
  5. Whilst it is always advisable to have a Will drafted by a professional, if you do intend on making a Will at home, you should type the document instead of handwriting it because illegible handwriting could lead to a costly dispute regarding the construction or interpretation of certain clauses.  
  6. If any clauses in your Will are likely to be controversial, you should prepare a letter of wishes (LoW) or explanatory note to be stored with your Will.  This is especially important if you have not instructed a solicitor to draft your Will because, in this case, there will not be a solicitor’s Will file with detailed attendance notes that clearly document your instructions and your intentions. The LoW can include an explanation as to why you made the Will the way you did which could help to defend any claim in the future.

If you have come across a handwritten Will and require advice as to its validity or advice in connection with bringing or defending a Will dispute, please contact Olivia Pisapia in our Disputed Wills and Trusts team.

Alternatively, if you wish to speak to a solicitor for advice on drafting a new Will, please contact our Wealth and Estate Planning team.

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