We always advocate that when you prepare your Will, have a solicitor do it. Why? Because that way you can be sure it will be valid and less likely to be open to challenge. Not only that, but when a solicitor prepares your Will, it will be typed up and properly executed. Importantly, it will contain a clause which revokes any prior Wills or testamentary writings. That means any Will that predates your latest Will, will have no effect.
Aretha Franklin’s Disputed Wills
Perhaps it would be best to explain what we mean by using the recent dispute over the late Aretha Franklin’s two handwritten Wills. Although this dispute was settled in an American court, the warnings about duplicate and handwritten Wills are as relevant for Scotland as they are for anywhere else!
When Aretha Franklin died, at the age of 76, in 2018, it was initially thought that she had not made a Will. If that had remained the case, her estate would have been divided equally amongst her four sons. However, some months later, in May 2019, two handwritten Wills were discovered in the late singer’s house. One of these Wills was in a locked cabinet whilst the other was in a spiral notebook. The one in the spiral notebook was found beneath a cushion on the couch. The question then arose as to which Will should be followed when distributing the estate.
Competing Handwritten Wills Cause Confusion
Both the Wills were handwritten and neither of them had been prepared by a lawyer. However, the Will found in the locked cabinet had been notarised. Neither of the wills had been witnessed. However, as the Wills were handwritten by the late singer, they were both equally valid. A handwritten Will (also known as a holograph Will) is a valid Will if it is signed, dated, appoints an executor and instructs the division of the estate. Each of the Wills contained a long list of the late singer’s assets.
The earlier Will (the Will which was found in the locked cabinet) instructed weekly and monthly payments to be made to each of Aretha’s four sons. It also directed that Kecalf and Edward “must take business classes and get a certificate or a degree” to participate in the estate.”
The later Will (the Will which was found in the spiral notebook and below a cushion on the couch) divides the estate amongst three of her children (but not Clarence who, apparently, has a mental illness). However, whilst this Will divided the estate amongst those three sons, there were certain assets which Kecalf would inherit in addition to the equal share in the estate. Kecalf was to inherit his late mother’s home in Bloomfield Hills, Michigan USA as well as her cars. The house had an estimated value of $1.1 million.
Who disputed the Wills?
Kecalf and his brother, Edward, raised proceedings in Michigan, claiming the second document properly reflected the late singer’s wishes with regard to her estate. Her son, Ted White Jnr., who also played guitar in his mother’s band, disagreed. He argued that the earlier Will should prevail. He said it contained much more detailed and the late singer had signed on every page. Clarence did not participate in the proceedings because of his disability. However, despite being on the opposite sides in the case, Ted agreed to support Clarence.
What was the outcome of the case?
The case went ahead by way of a jury trial in the probate court in Pontiac, Michigan. The trial lasted two days and the jury, consisting of six people, decided in less than an hour that the later Will should be taken as the late singer’s Will.
What lessons should be learned from this case?
It is simply not sensible to make handwritten Wills. Handwritten Wills are fraught with danger and risk and should be avoided at all costs.
It is also essential, when creating a new Will, that you include a clause revoking all prior Wills. This puts it beyond doubt which Will prevails.
Finally, to be sure your family do not dispute your Will, have it prepared by a solicitor. It is very much harder to dispute a Will which has been prepared by a Solicitor.