In August 2018, Aretha Franklin often titled ‘The Queen of Soul’ was thought to have died intestate. However, it has now been reported that nine months later, two wills were then discovered; one from 2010 within a locked cabinet and another from 2014 wedged under the sofa cushions. There then ensued a five-year dispute over which, if any, of the wills was valid and who was entitled to her multi-million-dollar estate.
While the claim was heard in Michigan, if Aretha had lived in England or Wales, would the outcome have been the same and what would have needed to be proven?
If neither will found was deemed valid, Aretha Franklin would have died ‘intestate’, without a will, and her estate worth roughly $6m (£4.6m) in real estate, cash, gold records and furs would have passed in accordance with strict intestacy rules. In that case, her estate, potentially including the benefit of any rights and royalties in her music, would have been split between her four sons in equal shares.
If a handwritten will had been found, there would have been tests to ensure it was valid. To be considered as valid the will must:
- be in writing;
- be evident that the person (known as the testator) intended for their signature to give effect to the will;
- be signed by the individual leaving the will with such signature being made or acknowledged by the person in the presence of two or more witnesses present at the same time; and
- each witness must attest and sign the will or acknowledge their signature in the presence of the person leaving the will, though not necessarily in the presence of each other.
Handwritten wills, known as holographic wills, are permitted in England and Wales, as they are in Michigan, where the claim was disputed by Aretha Franklin’s sons.
However, handwritten wills often come with certain difficulties.
Handwritten wills are generally written without professional assistance, leaving them ambiguous or unclear. The will in question could simply be the jotting down of thoughts that happen to be signed rather than a will. Ambiguity can cause issues as to the identification of assets or the true intentions of the person that wrote the will, the testator. If Aretha’s 2014 will was found to be ambiguous, then it may give rise to potential issues regarding construction i.e., looking to understand and interpret the meaning of the words where they are meaningless or ambiguous. This is provided for in law and allows evidence not contained in the will to be used to help the meaning of any ambiguous words or assets mentioned in the will to be correctly interpreted and identified.
In determining the validity of handwritten wills, handwriting experts may need to be asked to give an opinion on whether the will and signature in fact belonged to the person in question. These are different to graphologists who examine handwriting to determine personality traits.
Given the nature of the allegation, the person bringing the claim will have to prove that the signature was forged. Handwriting experts can be used to forensically analyse handwritten text to determine whether the text in question matches the individual’s handwriting, often with reference to original examples of the deceased’s handwriting.
As such, experts usually require multiple examples of previous handwriting or signatures. Relying on one example and being unable to explain the discrepancies may lead to a weak case being put forward.
If handwriting experts concluded that the 2014 will was a forgery and the courts agreed, Aretha would, on the basis that the 2010 will was held not to have been properly executed, have once again been deemed to have died intestate. On the contrary, if the handwriting experts concluded that the 2014 will was in fact written and signed by Aretha, and the courts agreed, her estate would, but for any other claims, be distributed under the terms of the will.
One such claim against the validity of the will may be that Aretha lacked testamentary capacity.
In England and Wales, a will can be invalid due to the individual making the will lacking capacity at the time the will was made. While the Mental Capacity Act 2005 provides for a presumption of capacity unless proven otherwise, the test for capacity in the context of wills derives from the case of Banks v. Goodfellow.
This provides a four-stage test, all limbs of which must be met to satisfy the court that a person has testamentary capacity, namely that the person making the will must:
- understand the nature of their act and its effect i.e., that they are making a will;
- understand the extent of the property of which they are disposing;
- comprehend and appreciate any potential claims on their estate; and
- be free of any disorder of the mind that “shall influence [their] will in disposing of [their] property and bring about a disposal” which, absent such a disorder, would not have been affected.
Key evidence is often found in the medical records, accounts from friends, family and professionals and other evidence of the individual’s behaviour at the relevant time.
If it was found that Aretha lacked capacity, the 2014 will would be deemed invalid and the estate would, absent the 2010 will being upheld, again pass on intestacy to her four sons.
Claim under the Inheritance Act
Finally, and nonetheless, in the event that either the 2014 will or intestacy meant that one or more of the sons was not adequately provided for (it being reported that one of Aretha’s sons, Clarence, suffers with disabilities) then they would, if Aretha had died domiciled in England and Wales, be able to bring a claim for “reasonable financial provision” for their maintenance. In Clarence’s case, if he lacked capacity to litigate then that claim could be brought on his behalf either by a court appointed deputy or a “litigation friend”.
As is common when contesting a will, in the event that a claim goes to trial, the decision is often binary; either the will is valid or not. This does present risks and legal advice is strongly recommended. We often advise clients to negotiate a settlement and why the vast majority of will disputes settle before trial.
In Aretha’s case, while the reports suggest that most US states would not accept the validity of the 2014 will, in the events that transpired, the Oakland County Probate Court held that the 2014 will was valid and Aretha’s wishes should be executed as per her 2014 will.