R-E-S-P-E-C-T My Wishes

Holland & Hart - Fiduciary Law Blog

Holland & Hart - Fiduciary Law Blog

When Aretha Franklin died last year, it was believed that she died without a will and that her estate, estimated to be worth $80 million, would pass under Michigan’s intestacy laws.  In May of this year, however, the personal representative found not one, but three handwritten wills that Ms. Franklin had written in the years before her death.  Two of the wills were written in 2010 and were found in a locked cabinet.  One of the wills was written in 2014 and was found in a spiral notebook under a couch cushion.  You can find the 2010 wills here and here and the 2014 will here.

In Colorado, a handwritten will may be admitted to probate pursuant to C.R.S. § 15-11-502.  This section allows for the probate of a will that does not otherwise comply with the requirements for a valid will (generally, it must be in writing, signed by the testator, and signed by two witnesses and a notary) if the material portions of the document and the signature are in the testator’s handwriting.  The proponent of the will can establish the testator’s intent that the handwritten document was intended to be her will through the use of extrinsic evidence, including any portions of the document that are not in the testator’s handwriting.  In the case of Ms. Franklin’s handwritten wills, the 2014 document may not qualify as a will under § 15-11-502 because it does not appear to have been signed.  The 2010 documents, in contrast, do appear to have a signature at the top of most pages.

The question of whether one of the three handwritten documents left by Ms. Franklin is a valid will is now before a Michigan court.  After discovering the documents, the personal representative submitted them to the court for a determination about their validity and admissibility to probate (Michigan’s holographic will statute is substantially similar to Colorado’s and includes the same general requirements for validity).  One of Ms. Franklin’s sons has retained a handwriting expert to weigh in on the validity of the 2014 document.  He has also sought appointment as personal representative pursuant to the terms of the 2014 document, a request that is contested by the current personal representative.  Given that the 2014 document does not appear to have been signed by Ms. Franklin, it will be interesting to see whether the Michigan court nonetheless allows the document to be admitted to probate if all of the other requirements are met or, if not, if either of the 2010 documents are admitted to probate.

The case of Ms. Franklin’s estate is another example of the importance of encouraging clients to engage in thoughtful estate planning and to communicate their wishes with family members.  Even when an $80 million estate is not at stake, the better practice is to leave a will that is executed with the proper formalities and kept in a safe place…not in the couch with spare change and old remotes!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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