ARE ARETHA FRANKLIN’S HOMEMADE WILLS VALID, AND WHAT HAPPENS NEXT?

Aretha Franklin’s Estate is about to get a whole lot messier. The news broke this week that three handwritten, homemade documents that appeared to be written by Aretha and intended to be wills have been discovered in the home of the late Queen of Soul. In the nine months since Aretha Franklin died, it had been widely reported that Aretha did not have a will or a trust. So this news is likely to cause a shake-up in the estate probate court proceedings.

It appears that two of these documents might qualify as valid wills under Michigan law. The first was dated June 21, 2010 and the second one dated March 31, 2014. An additional, one-page note written and dated later in 2010 also states that it is a will, but it does not include any provisions about who is to receive her property, administer her estate, or other of the key clauses to an actual will. You can read all three of the purported wills, here.

So the first big questions that must be answered: Are the June 2010 and/or March 2014 documents valid wills under Michigan law?

On June 12, 2019, Oakland County Probate Court Judge Jennifer Callaghan will hold an initial court hearing to determine if any or all of the three documents are valid wills. This will be a preliminary hearing at which it is anticipated that one or more attorneys for Aretha’s four sons (each has his own attorney, except for Clarence, who is represented by his guardian) will object to the admission of one or all of the documents. It has been reported that at least two of the sons intend to object to the admission of the documents as valid wills.

Traditionally, contested legal issues like this will not be resolved at the initial court hearing. Instead, the judge will likely give the parties and their attorneys time to investigate the documents, conduct discovery (including the right to take depositions, issue subpoenas, etc.), try to negotiate a resolution, perhaps attend mediation to try to reach a settlement, and finally, return for another, longer court hearing at a later date during which the court will likely hold an evidentiary hearing to resolve the dispute about whether the documents are valid wills.

In doing so, two key Michigan laws will govern the issue. The first sets forth the rule in Michigan for whether a document constitutes a valid “holographic” will. A holographic will is one where the material portions are in the will creator’s own handwriting, as contrasted with a traditional will prepared by an attorney.

To be a valid holographic will in Michigan, it must be in writing, signed by the person who created it or at her direction, and dated, along with the requirement that the signature and material portions be in the person’s own handwriting. Finally, there must be a finding that the document was intended to constitute the person’s will. In this respect, Michigan law is similar to the laws of other states.

The second Michigan law that comes into play is under a statute that is not as common in most states, and which permits documents that are intended to serve as wills to accepted as valid, even if the regular statutory requirements were not met. So, even a document that is “not quite a will” can be accepted as a valid will, if there is clear and convincing evidence that the document was intended to be a will.

In other words, if someone forgets to date a will, or even – under the right circumstances – not sign the will at all, this law means the document can still be accepted as a valid will. Many states do not follow this particular law, instead insisting on the will “formalities” to be in place.

Under either statute, the court can, and likely will, hold a trial and listen to the testimony of professionals who worked with Aretha, and others, about what her wishes may have been, and whether she intended these documents to serve as her wills. The language of the wills themselves will be closely analyzed to determine if they truly due express her intention for who is to receive her assets and how they are to receive them.

Aretha’s Intention: Assets Divided Among Her Four Sons

Based on our analysis of the documents themselves, the June 2010 document certain appears to be a valid will. It details Aretha’s intention that it serve as a will, how her assets are to be divided among her four sons, and it is both signed and dated by Aretha. So, unless there is compelling evidence offered that the document was not written by her or was not intended to be her will, the document itself likely will be proof enough to be admitted as a valid will.

The March 2014 document is murkier. It is unclear if it is signed.  A marking that may have been Aretha Franklin’s signature appears on the last page, but it is messy and hard to read. But, under Michigan’s “not quite a will” law, the language of the document might be enough to qualify as a valid will, because it, arguably, contains an expression of her intent to create a will.  It also, like the 2010 document, directs how her assets are to be divided between her four sons. But, it could also be argued that the 2014 document was merely Aretha’s notes — found in a notebook — about what she might like her will to read, but she never got around to creating an actual new will. It certainly was not as detailed or clear as the 2010 document.

Accordingly, it is hard to predict if the 2014 document will be treated as a valid will. If it is, it would replace any inconsistent terms in the 2010 will.  While both documents are generally consistent, expressing an intention to share assets among her four sons, there is at least one big difference that could be very significant.

Once the court decides if one or both documents are valid wills, that will not end the legal trouble. To the contrary, then the estate proceeding will really get interesting. What do all of the scribbles in Aretha’s wills mean?  Parts of them are very hard to read, and some provisions are crossed out and changed in the margins.

Who Will Serve As Aretha’s Executor?

The biggest issue may be this: Who will serve as Aretha’s executor (called personal representative in Michigan)? Right now, her niece, Sabrina Owens, is the person with authority and control over Aretha’s estate, including managing all of the estate’s assets. But the 2014 will appears to appoint Aretha’s son, Kecalf, in that position – but with some cross outs, a blank line, two questions marks, and a note in the margin to “fill in” the blank. The suggests that Aretha’s wishes as to who would fill this all important position were not clear, and she may not have made up her mind.

Is this enough for the court to remove Sabrina Owens – who was appointed with the sons’ consent at a time when no will was known to exist – and to appoint Kecalf in her place? That will most likely be a tough question for the court to decide. And how that question is determined could have long term impact on Aretha’s legacy, including deciding how her image, likeness, performances, and royalties are managed.

The key lesson from all this should be obvious. No one should rely on homemade wills. They are far more likely to cause confusion and trouble than a proper will prepared with the help of an experienced estate planning attorney.

Anyone who wants their heirs to avoid probate court should consider using a revocable living trust. Almost everyone who may die with investments, real estate, or other assets of value would benefit from a well-drafted trust. Trusts are not just for the rich! They are for anyone who wants their loved ones to avoid the mess, costs, and aggravation that often happens in probate court.

Considering the assets, wealth, debts, and complexities that Aretha Franklin had, it is a shame that she never signed a trust. It would have avoided most, and perhaps all, of the courtroom drama that is about to begin over her estate.

And, above all else, do not hide your will in a locked cabinet or under a couch cushion, like Aretha did! Wills and other estate planning documents do no good if no one can find them.

Danielle and Andy Mayoras are co-authors of Trial & Heirs: Famous Fortune Fights!, television hosts and keynote speakers. You can find them on Facebook, Twitter, Instagram, YouTube, and LinkedIn. For all the latest celebrity legal news, be sure to check out their blog.

[photo credits: Wikipedia, Wikipedia]