A bitter family feud over the estate of ‘Queen of Soul’ Aretha Franklin is a stark reminder of the importance of ensuring a will is valid and clear.
The singer’s handwritten will was found in her couch after her death, a discovery which led to a will dispute that turned three of her four sons against each other.
After a five-year legal squabble, a jury in Michigan recently ruled that the handwritten will dated 2014 was valid and should override a 2010 will that was discovered around the same time in a locked cabinet at Franklin’s home in suburban Detroit.
This case was in the USA and the country’s inheritance laws are significantly different to what we work to in England. In this country we don’t, for example, operate with a jury in cases like these. It would be down to a judge to make a decision if the parties can’t reach an agreement.
The case nevertheless provided a good example of what can happen when there is ambiguity around wills – and the pain it can cause families.
It is not unusual for people to die without having made a will, but most people don’t die with an estate worth several million dollars or pounds. Whilst the value of someone’s estate doesn’t necessarily dictate the likelihood of a legal challenge, it is a very relevant factor.
Firstly, making a homemade will is perfectly legal and the fact that a will is not prepared by a qualified professional does not necessarily mean it will not be valid, but people need to be aware there is more of a risk.
There are strict requirements in England that must be complied with for a will to be valid. For example, it has to be signed by the will-maker in the presence of two witnesses, who must also sign in each other’s presence and the presence of the will-maker.
When wills are made at home, there is a real possibility these requirements will not be followed. Even if the deceased intended to make a will, this can invalidate it.
Even if it appears valid on the face of it, the fact that it has been made in private and without the benefit of legal advice can lead to questions, such as:
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Did the deceased definitely write it?
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Did they definitely understand the consequences of it?
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Was it executed (i.e. signed and witnessed) properly?
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Was there any undue influence?
If a qualified will writing professional is involved in the will making process, they should be able to answer these questions. You can make a request for information about the circumstances in which a will was made, which is known as a Larke v Nugus request.
This can be used when someone:
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believes that the deceased lacked capacity when the will was made
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has concerns that someone had exerted undue influence over the deceased
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believes that the deceased did not have knowledge or approve of the will
Using Larke v Nugus, any previous wills can be examined to see how they compare. In the absence of this, you are reliant on the evidence of the witnesses, medical records, and general witness testimony as to the habits and views of the deceased.
Without a clear record from an independent, qualified professional that the deceased understood what they were doing when they made their will and the consequences of it, it can be much harder to defend its validity, especially in circumstances where an individual was vulnerable, elderly or unwell, and when their will appears to be out of character.
So, while the Franklin case is extreme in nature given the monetary values involved and there are differences between USA law and English law, the principle is the same – a homemade will is likely to be more open to challenge than a professionally drafted one.
Our advice would always be to engage with a professional who can ensure that your final wishes are executed upon death. It gives you the peace of mind that there will be no grounds for legal challenge – and it reduces the chance of family arguments. As Franklin might say, it promotes R-E-S-P-E-C-T amongst all concerned.
