By Leslie R. Kolafa
Trusts & Estates Blog
Typically, only those of us who are trusts and estates attorneys geek out over the fascinating problems that handwritten wills create. But when those wills were written by a music icon worth $80 million, suddenly this topic is intriguing to a much broader audience. Aretha Franklin died on August 31, 2018. Her family was confident that she died without a will, but on May 3, 2019, the personal representative of Franklin’s estate discovered three separate documents, each of which may constitute a valid handwritten (or in legal terms, “holographic”) will. Now, the previously uncontested estate has divided Franklin’s family and is likely headed to litigation. Below are a few common pitfalls of holographic wills that are issues in Franklin’s estate.
Holographic wills may not comply with legal requirements. Most importantly, holographic wills have legal requirements, too. Only about half the states in the United States recognize holographic wills. What’s more, each state may have different requirements for a holographic will to be considered valid. Most require that the will be in the handwriting of the testator (the person writing the will), but some states include other requirements. For instance, Michigan (where Aretha Franklin’s estate is being administered) requires that the will be dated. California does not require a date but does set out some rather specific guidelines on the validity and interpretation of a document if it is undated. The personal representative of Franklin’s estate has petitioned the court for instructions regarding the “validity and admissibility” of the purported holographic wills, stating that her counsel is “unsure as to whether or not these documents meet the legal requirements” under Michigan law to constitute valid holographic wills.
The handwriting may be difficult to read. Almost as important as meeting the applicable legal requirements, a holographic will that is difficult to read can cause endless problems. You can read Franklin’s holographic wills (first, second, and third) to see just what a difficult task this can be. Unfortunately, sometimes even those with perfect penmanship can’t avoid this pitfall. Sure, the handwriting may be clear at the time the document is written. But depending on the writing implement, paper, and storage of that document, it may become difficult to read over time. This can happen to a typewritten or professionally prepared will as well, of course, but is far more common with handwritten wills. One of Franklin’s wills was written on a few pages of a spiral-bound notebook, left in the notebook, and hidden under her couch cushions – not exactly prime storage of an important legal document.
The language may be unclear or legally insufficient. Even if it’s possible to read the words in a holographic will, a common pitfall of holographic wills is that the language may be difficult to understand – either it is difficult to understand the plain language meaning of a sentence, or it is difficult to understand the intended legal effect. Franklin’s wills contain both problems. Franklin wrote in tangents, left notes in margins, and drew arrows across the pages of her holographic wills. It can be difficult to follow her train of thought, much less decipher whether she accomplished the legal effect she intended.
Even if a holographic will contains language that is understandable, it may not be legally sufficient to have the desired effect.
For example, in Franklin’s 2014 holographic will, she clearly attempts to provide in some manner for her son Clarence, who has special needs. But it is not clear what she intends for him to receive, or how she intends for that to be managed. She states that her other three sons “must” check on him once a week, “report” to her executor, and “give him $ .” She may have intended to establish some formal manner in which her three sons provide ongoing care and even financial support to Clarence, but it is simply not clear. A similar pitfall of holographic wills that is incredibly common is when the testator uses precatory language – meaning she expresses something as a wish or hope when she intended it to be a requirement.
It can be difficult to determine if changes were made. In Franklin’s estate, one of the biggest issues currently pending before the court is who should be her personal representative. Franklin’s niece, Sabrina Owens, was appointed upon agreement of the family before the holographic wills were discovered. But since their discovery, one of Franklin’s sons (Kecalf Franklin aka Kecalf Cunningham) has petitioned for his own appointment as personal representative based on Franklin’s most recent holographic will that appears to nominate him to serve. Yet, the provision appointing him appears to have listed Kecalf, another son (Teddy), and Owens (though it is difficult to decipher), to all serve together and Teddy’s and Owens’s names are crossed out, leaving only Kecalf. This gives rise to many questions about when those names were crossed out, who crossed them out, and (going back to our last pitfall) what effect was intended. Kecalf has hired a forensic handwriting expert to inspect the 2014 holographic will, and the court has authorized this expert to examine the document. Kecalf selected an expert who specializes in dating inks, certainly because it will be important for Kecalf to prove that the entire 2014 holographic will was written at the same time.
Typically, the battle to become personal representative might not become as heated as this. But Franklin’s estate requires the personal representative to handle a large number of outstanding projects, including television and movie negotiations, valuation of Franklin’s music catalog, music and publishing rights; so this task is sure to be one that lasts a long time, pays very well, and stands to have a huge effect on Franklin’s legacy. Just imagine the fight that would ensue if a crossed-out provision made a significant difference in the distribution of a valuable estate.
They can lead to more litigation than a professionally drafted will. All of the pitfalls above lead to the same problem – holographic wills can raise unanswered questions. In that case, it inevitably means that they are susceptible to legal challenges, beginning with whether they are even valid and then parsing through the intention behind every term. If the matter goes to trial, distribution of the estate could be delayed years. Hiring an attorney to draft an estate plan can help to avoid all of these pitfalls.
For more writing on estate planning, probate & trust administration, and estate & gift taxation, as well as trust, probate, conservatorship and elder abuse litigation, visit the Trusts and Estates Law Blog.