When Aretha Franklin passed away in 2018 it was widely believed that she had died without a will. She was thought to have left behind an $80 million fortune, which included rights to royalties and copyrights. Since then, no fewer than four wills have been discovered. Two of those were handwritten, with additions and crossings out that are barely legible. Since the discovery of the purported wills, Franklin’s four adult sons have been embroiled in multiple court battles as they argue over which of those documents is valid and represents the true wishes of their late mother. A Michigan jury last month found that one of the handwritten wills, written in 2014, was valid. Even though the rarefied world of celebrity estates appears to be of little relevance to most families, there are nevertheless some valuable lessons that can be gleaned from the haphazard planning and associated destruction of family relationships that have occurred in this case.
Two of Franklin’s sons, Kecalf and Edward Franklin, had been advocating in favor of the 2014 will, which was discovered between two couch cushions. That will bequeathed Franklin’s Bloomfield Hills, property, described as the “crown jewel” of the estate, to Kecalf and his children. Another son, Ted White II, had argued that a document created in 2010 should be considered Franklin’s last will and testament. The 2010 document named Mr. White as executor and required Kecalf and Edward to obtain a degree or certificate in business administration before they could inherit. Those conditions did not appear in the handwritten 2014 will.
Nevertheless, the jury agreed with the attorneys for Kecalf and Edward, who argued that it is immaterial that the 2014 will was found in a spiral notebook tucked under a couch cushion at Franklin’s house. Mr. White had protested that every other document produced by his mother had been meticulously prepared by attorneys in a conventional manners. However, the jury found that the 2014 handwritten note met the requirements to be considered a valid will in the state of Michigan and should therefore prevail over the document created in 2010 by Franklin’s lawyers.
Although this case was decided in accordance with the laws of Michigan, the State of California also recognizes the validity of handwritten wills, provided that certain statutory requirements are met. A handwritten will, also known as a “holographic” will in California, may be valid if the signature and “material provisions” of the will are in the handwriting of the person making the will. Unlike typed wills, which must be witnessed, a handwritten will does not need to be witnessed in order to be valid.
Should everyone therefore scribble their wishes on the back of an envelope and bypass the more formal and conventional methods of estate planning?
The Franklin case exemplifies more than any other why estate planning is about far more than creating technically correct legal documents. Franklin created a will in 2014 that was technically legal and valid under the law. If estate planning is only about creating documents that are legally valid, her plan can be considered a resounding success. The same applies when using online document software to create estate planning documents. It may be the case (“may” being the operative word here) that the online service you use will churn out a technically valid document. However, did the online service counsel you on how to anticipate and prevent conflict between family members after you’re gone? Did it provide advice around how to protect what you leave behind from future lawsuits or divorces that you children could be involved in? Without that kind of advice and counseling, you are left with a technically valid will or trust, but a failed estate plan. Just as Franklin had a technically valid will but a failed estate plan, with the relationships between her children now damaged irreparably.
Another reason not to eschew the formalities of estate planning in favor of a handwritten will is that the formalities are helpful in staving off legal challenges. Even if a handwritten will meets the technical requirements, the will maker must still have mental capacity and not be subject to under influence in order for the will to be deemed valid. It is much easier to allege lack of capacity or undue influence when there is a handwritten will than if you have a document prepared by an attorney, properly witnessed and, in the case of other related estate planning documents, notarized.
The case of Aretha Franklin is a cautionary tale as the evolution of DIY estate planning continues apace. When it comes to the law, there is nothing that prevents the law person from acting as their own counsel. If you suffer an injury because of the negligence of your employer, you could prepare the lawsuit and represent yourself in court. If you are accused of a crime, you can serve as your own defense attorney. You can also create your own estate plan using online software. Just because you can, that doesn’t necessarily mean that you should.
