Aretha Franklin, the “Queen of Soul” died on August 16, 2018 in Detroit, Michigan, leaving an estate behind to be managed. She purportedly died without a last will and testament, meaning that her four sons would inherit the estate under Michigan’s intestate succession. Her niece, Sabrina Owens, was initially appointed personal representative of the estate upon agreement of her sons by the Oakland County Probate Court. She had to manage not only posthumous projects that included biopics of the late singer but also deal with a complicated financial situation that includes a $6.3 million tax debt to the IRS. To complicate matters, three handwritten documents purporting to be wills were found in May 2019 in a notebook under couch cushions purport to nominate her son Kecalf Franklin as executor and manage her affairs. Since then, he has tried to gain control of the estate himself. Ms. Owens ultimately resigned as personal representative in 2020, citing family conflict, and a local attorney was appointed as interim manager of the estate.
Are the handwritten documents found under the couch cushion admissible to the probate court as Ms. Franklin’s last will and testament? Aren’t wills required to be signed in the presence of two witnesses or a notary public?
The answer is maybe. Michigan recognizes a “holographic will”, which is admissible if the will is dated and if the testator’s signature and the document’s material portions are in the testator’s handwriting. MCL 700.2502(2). A will that meets the requirements of a holographic will is not required to be witnessed or acknowledged by a notary public. For obviously reasons, holographic wills have problems that regular wills do not. A holographic will can be challenged by disgruntled heirs or devisees over uncertainty whether the document is in the testator’s handwriting because of the lack of witnesses. In addition, there is no way to know if the holographic will was written under conditions to suggest coercion, duress or undue influence. Proving these documents are Ms. Franklin’s last will and testament may require handwriting experts to show that she authored the material portions by her own hand.
However, even if it does not meet the technical requirements to be a holographic will, it may still be admissible for probate administration. “Intent that the document constitutes a testator’s will can be established by extrinsic evidence, including, for a holographic will, portions of the document that are not in the testator’s handwriting.” MCL 700.2502(3). A proponent of a purported holographic will with defects (e.g. some parts are typed, signature is missing) may still be admitted to the probate court if it can be shown by clear and convincing evidence that the document was intended to be the testator’s last will and testament. The Michigan Court of Appeals even allowed a will to be admitted to probate recently that was not even signed by the testator. See In re Estate of Attia, 317 Mich App 705; 895 NW2d 564 (2016). The probate court will go to great lengths to admit a will that does meet all the technical requirements provided there was sufficient evidence that it was the testator’s intent.
The root causes of the woes faced in Aretha Franklin’s estate were planted by the singer herself. The lack of a clear, valid will makes it hard to ascertain what her final wishes are. Which one of the three purported documents located in the couch cushions was the best expression of her wishes (if any)? The heirs and the estate will now have to spend thousands of dollars in a will contest for the court to figure out if these documents are valid. A properly executed last will and testament could also have nominated a clear personal representative to administer the estate in lieu of several heirs jockeying for the position. Once again, much money will now be spent to make these basic decisions (including from estate resources).
Aretha Franklin and her heirs would have benefited from an estate plan. A clear last will and testament would have clearly stated who is in charge, who receives what assets and how should the property be disposed. To keep her private affairs out of the spotlight, Ms. Franklin could have created a revocable living trust to have her final business administered out of the view of the public and the probate court. It is possible that the persons who will now manage the estate are not the people that Ms. Franklin would have wanted in charge and will make decisions that are completely contrary to her last wishes. Even some basic estate planning during her life could have been a great advancement towards protecting her legacy.
Anyone, no matter how may assets they own, can take a lesson from Aretha Franklin’s estate and benefit from having a sound estate plan in place. Whether a last will and testament or a revocable trust is best for your individual situation can only be determined in consultation with a skilled probate lawyer. If you or a loved one have questions about estate planning or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.