Aretha Franklin is the perfect example of why having an attorney can keep your family out of court and out of conflict. The "I can do everything" mentality tends to backfire, and Aretha's ended in her family affairs and legacy splattered all over the news and tabloids for years after her death.
Two Wills and a Couch Will
When Aretha passed in 2018, the family believed she had died intestate (without a will). They assumed that her estate would be divided equally amongst her four children. However, Aretha had planned otherwise. While cleaning her property, Aretha's family found three wills. In her safe, they found two wills dated in 2010. These were signed and notarized, but not prepared by an attorney. The third document, was dated in 2014 and was found lost within the black hole that was her couch! This Couch Will was handwritten in a spiral notebook (a holographic will) that was not even signed by her.
As a Michigan resident, her will was to be probated (proved to be valid) according to Michigan laws. None of the wills contained the formalities of a proper will. However, Michigan is one of the few states that allow holographic wills (i.e. handwritten by the testator/person making the will). Typically, the newest will takes precedence over older documents, but even a holographic will must meet state-specific criteria to be proved as a valid will.
Was one of her three wills valid? If so, which one? The second 2010 document that was signed and notarized and in her safe, or the newer, handwritten and unsigned document found in the depths of her couch?
Aretha's Family Secrets
Aretha Franklin had four children. The eldest, Clarence Franklin, was born when Aretha was just 12 years old! Although the singer never spoke publicly about her life, up until the discovery of the wills, it was believed that Clarence's father was Donald Burke, a schoolmate of hers. One of the 2010 documents had a different story. In it, Aretha discloses that Edward Jordan, Sr., was Clarence's father, who is also the father of her second child, Edward, who was born when she was 14. Even more, she states that Clarence's "father, Edward Jordan Sr.,... never made any contribution to his welfare, future or past, monetarily, material, spiritual, etc."
Her third son, Teddy White, Jr., was from her marriage to music manager Ted White. Finally, Kecalf Cunningham, came a year after she and Ted divorced, to road manager Ken Cunningham.
All three documents disclose that Aretha was a savvy businesswoman who cared deeply about her sons and wanted all four to be treated fairly. But, as a private person, did she want the world to know these facts about her family?
The Family Feud
The 2010 will specified weekly and monthly allowances for each of her four sons and that they would only receive inheritance upon the completion of a degree or “business administration courses.”
The 2014 will on the other hand, divided the assets equally between three of the sons but left her home and cars to Kecalf and his children. She additionally outlined detailed care instructions for her eldest son, Clarence Franklin, who is said to have special needs that were never publicly disclosed. She emphasized that the father of Clarence should never “…receive or handle any money or property belonging to Clarence…” All three documents allowed all four children are to take equal shares of her music royalties as well as her memorabilia.
Kecalf and Edward favored the 2014 handwritten and unsigned will as it treated them more favorably, while Teddy's attorney argued in favor of the 2010 signed and notarized will. Again, more information she had never disclosed publicly, and is now in the public eye.
Is the Couch Will a Valid Will?
In Michigan, a will is valid as a holographic will if it’s dated and if the testator’s signature and the document’s material portions are in the testator’s handwriting. Witnesses aren’t required. However, even an unsigned will may nevertheless be found valid if the clear and convincing evidence standard is met to show that the decedent intended for the document to constitute his last will and testament. Moreover, Michigan statutes allow a court to overlook "small technical deficiencies" in what’s otherwise clearly intended to be a decedent’s last will and testament. Finally, Michigan case law holds that extrinsic evidence is admissible to establish intent.
Armed with Michigan's laws and court interpretations, the jury found that, Arethas "Couch Will", was a valid holographic will under Michigan laws.
Can You Handwrite Your Will?
Although, in Aretha's case, the Couch Will was valid, such a result would likely happen in other states, such as Georgia. Michigan is likely the most liberal state when it comes to validity of wills. A digital will may be found to be a valid will!
However, in Georgia, a holographic will is valid only if it is signed by the testator and signed and witnessed by two witnesses. If, as in Aretha's case, the purported will is not signed in the presence of two competent witnesses, the purported will shall not be considered a valid will.
Even further, specific language is required to prove that the will was attested and subscribed by the competent witnesses.
Moreover, writing a will yourself leaves open the question of whether it was indeed you who wrote the will, if the signature is genuine, if you were pressured into signing the will, or had the mental capacity when drafting it.
What can we learn from Aretha?
Having an attorney draft your will, even if you live in a State that permits handwritten wills without the need of witnesses, such Michigan, will give you peace of mind that the validity of your will is not likely to be questioned.
A will properly drafted by an attorney, and signed in the presence of the attorney, along with a conversation with her children about her wishes would have likely saved Aretha’s estate millions in legal expenses and, most importantly, it would have probably prevented some of the tension among the siblings. All of this decimated Aretha's fortune, oncle estimated at $80million. Luckily, the estate continues to see income from royalties and licensing.
Of course, one is still left to wonder why someone of Aretha’s stature didn’t just save her family the extra expenses and headache by simply hiring an estate planner to draft her will. Moreover, Aretha was a very private person. Aretha would have benefited from a well drafted estate plan that included a trust which allowed her private family matters, those which she kept private her entire life, to remain just that, private.
Just another friendly reminder of why proper planning is so important. Or as Benjamin Franklin so boldly said "Failing to plan is planning to fail."
Don't leave your estate to the state, take care of it yourself. Contact us and take advantage of our unique family meetings or legacy meetings, in which we support you in speaking with your loved ones about your wishes.