The initial theory that she didn't have a Will was a startling discovery as she was thought to be worth £80 million (although later reduced to £6 million due to unpaid taxes and other liabilities!).
As you might have guessed, the Wills are not consistent on the issue of who are the executors and who will get what. These Wills have now been considered by a jury who had to decide which (if either) of the two documents is the valid Will and consequently applies to the late singer’s estate. The jury has ruled that Aretha Franklin’s more recent Will dated 2014 is the valid Will and will apply to her estate. The case was heard in the Oakland County Probate Court in Michigan in the United States, but the valuable lessons to be learned apply equally from an English legal perspective.
Why is it important to make a Will?
In England and Wales, when someone dies without making a Will, their estate will pass along the intestacy rules. This effectively means that if the estate is worth up to £270,000 (increasing to £322,000 from 26 July 2023) a surviving spouse or civil partner will inherit the entirety of the estate and is entitled to apply for probate.
If the estate is worth over this capital limit, the spouse or civil partner will receive that amount in assets, half of the rest of the estate and all of the deceased’s personal possessions. The remaining half of the estate will be split between the children of the deceased. If any of the children died before the deceased, their children (the deceased’s grandchildren) will inherit instead.
If there are children, but no living spouse or civil partner, the estate will be shared equally between the living children. If there is no living spouse or civil partner and no living children, the estate will be shared among other relatives, for example, parents or siblings.
It is important to note that the intestacy rules make no provision for unmarried partners or cohabitees or stepchildren of the deceased and otherwise are very unlikely to reflect the deceased’s true wishes. The only way to be certain that your loved ones will benefit from your estate exactly in the way you would like them to is to prepare a valid Will.
What is a valid Will?
The jury at Oakland County Probate Court were asked to examine two handwritten Wills – one prepared in 2010 and the other prepared in 2014 and make a decision as to which is the valid Will. Each Will has been scribbled by hand and is hard to read with added notes and comments in the margins, but this does not necessarily make them invalid. Witnesses due to testify included Ms Franklin’s children, her niece, and a handwriting expert.
In England and Wales, a Will must be executed in accordance with the Wills Act 1837 (as amended by subsequent Acts) in order to be valid. The requirements for a valid Will are:
- It must be made by a person who is 18 years old or over
- It must be made voluntarily and without pressure from any other person
- It must be made by a person who is of sound mind
- It must be made in writing
- It must be signed by the testator in the presence of two witnesses
- It must be signed by the two witnesses, in the presence of the testator (and in the presence of each other), after the testator has signed the will
Interestingly, in many states Aretha Franklin’s Wills would be automatically invalid for being handwritten but in Michigan (and England and Wales) a handwritten Will can be perfectly legitimate.
Having said that (and noting that we are obviously biased), the best way to ensure that your Will is valid, carries out your wishes and will withstand any challenges on the grounds of capacity, undue influence or lack of knowledge is to get one prepared by an experienced specialist solicitor. Doing it yourself might be quick and cheap but it can store up a whole host of issues after death. A well drafted Will is clear on:
- Whether previous Wills are revoked
- Which jurisdictions are covered
- Who are to be the executors and trustees (and guardians if appropriate)
- The exact division of your estate
- Who will take if the initial beneficiaries have predeceased
A Will can also include flexible and protective structures to manage complex family circumstances and protect beneficiaries. They can also be drafted to take best advantage of any tax reliefs and exemptions.
We would also strongly suggest that your original Will is stored somewhere more secure than down the back of your sofa!
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