Don’t Make Handwritten Wills – if you do, don’t make more than one!

Confusion, conflict and court. The result of the competition between two handwritten Wills. These were not the Wills of an ordinary individual, but the Wills of the “Queen of Soul”, Aretha Franklin who died in 2018.

Following her death, the family did not believe she had made a Will. That meant her four children, Kecalf, Edward and Clarence Franklin and Ted White Jnr., would receive equal shares in her estate. However, in 2019, two handwritten Wills were discovered. One was in a locked cabinet and it had been notarised. The other was found in a spiral notebook below a cushion on the couch.

The problem was to work out which Will was valid.

What were the issues that led to litigation?

The first Will, written in 2010 ran to around a dozen pages, every one of which was signed. It provided for weekly and monthly allowances to be paid to the four children. In addition, before Kecalf or Edward could share in the estate, the Will stated they “must take business classes and get a certificate or a degree”.

In the second Will, written in 2014, the late singer directed that three of her four sons, Kecalf, Edward and Ted White Jnr would receive equal shares of her music royalties. However, it also directed that Kecalf was to receive his mother’s house in Bloomfield Hills, Michigan and various cars she had owned. The house was valued at $1.1million at the time of Aretha Franklin’s death.

Kecalf and Edward supported the argument that the second Will was valid and its direction should be followed. They claimed that it revoked the 2010 Will. Ted, on the other hand, argued that the earlier Will was valid.

This then led to Kecalf and Edward raising proceedings in the Probate Court in Michigan seeking a ruling that the later Will be followed.

The trial involved a jury. After a two-day trial, it took them less than an hour to decide the second Will should be followed.

Clarence has mental health issues and the other three brothers agreed they would all support him.

Are handwritten Wills valid in Scotland?

Handwritten Wills are valid in Scotland provided they contain the essential elements any Will must contain. These types of Wills are known as holograph Wills. A Will like this must appoint an executor and must deal with the distribution of the estate. In addition, the person making the Will must sign and date it.

However, handwritten Wills are to be discouraged as they are frequently defective in some way.

What is the problem with having different Wills?

Apart from being handwritten, as they were in this case, there were two Wills. The problem with this is deciding which Will is the one to be followed. When a solicitor prepares a Will for a client, they will ask the client to confirm they wish any Will they have made before to be cancelled. When the client confirms this, a clause stating that any prior Wills and testamentary writings are revoked is included. This ensures any prior Wills no longer have any effect. It is also good practice to destroy any prior Wills.

In the Aretha Franklin Wills case, there was no such clause in the later Will. That meant there was no easy answer as to which Will was valid.

Whilst his case was decided in America, the same kinds of issues would arise in a similar case in the UK.

What should I do to make sure your Will is valid?

The first thing you should do when you are thinking about making a Will is to arrange a meeting with your solicitor. Your solicitor will explain the process of making a Will and seek your instructions about what you wish it to contain. Your solicitor will then draw up your Will for you and send you a draft for you to check. This allows you to make sure the Will properly reflects your wishes. Once you are happy with the terms of your Will, your solicitor will then arrange for you to sign it. Wills should be signed at the foot of each page and on the last page in the presence of a witness. The witness who has watched you sign the Will should then add their own signature to the last page.

Next steps

Our solicitors have extensive experience of advising and drawing up Wills for clients. We have many years of experience providing advice and guidance to those seeking to prepare their Will or update an existing Will.

If you would like to discuss drawing up a Will or changing an existing Will, please contact us.