Aretha Franklin’s Handwritten Wills – Would They Be Considered Valid Under English Law?

The legendary singer Aretha Franklin passed away in 2018. It was believed that she did not leave a Will.

Under Michigan law, her estate would have been divided in equal shares among her four sons. The family has since been litigating over her US$18 million estate. In 2019, Aretha Franklin’s niece found two handwritten notes at her home: one is dated 2010 and found in a locked cabinet, and the other is dated 2014, found under a cushion on the sofa. The notes bore different terms. The dispute, therefore, turned to the validity of the notes as Wills and which was to be held as the last valid Will. A jury has recently ruled that the note dated in 2014 is the last valid Will. This put an end to the years-long dispute between the siblings.

Had Aretha Franklin’s estate dispute happened under English law, what would be the considerations?

When a person dies without a Will

When a person dies without a Will, the rules of intestacy apply. Section 46 of the Administration of Estates Act 1925 sets out the order and entitlement of people who would benefit from the estate, briefly, as follows:

However, the rules of intestacy do not protect a cohabiting spouse, who was not married or in a civil partnership with the deceased. They would have to make a claim on the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

What constitutes a valid Will?

Whilst there is no requirement that a Will must be prepared by a solicitor or a professional Will drafter in order to be legally valid, or that a particular format or set of wording must be used, there are certain formalities, which must be met. Section 9 of the Wills Act 1837 sets out these requirements as follows:

It must be noted that a beneficiary in the Will cannot be a witness because they will not be able to inherit under the Will, even though this does not invalidate the Will itself.

A handwritten Will is valid as long as it meets the statutory formalities and the person has the capacity to create the Will and acts voluntarily at the time when the Will is being made.

There are also no requirements as to where the Will should be stored. If a Will is prepared by solicitors or a professional Will drafter, they will usually store the Will in their offices. A Will can be kept in the person’s home, or under the sofa as Aretha Franklin did. However, a Will should be kept in a safe place to prevent it from being tampered with or lost.

What if I suspect that my family member’s Will is lost?

If after a search of the likely places where a Will would normally be kept, for example, solicitors’ offices, banks, and the deceased’s home, it is still possible to search with HM Courts & Tribunal Services which offers a Will storage service, or with the National Will Register which holds records of registered Wills.

If a Will is believed to have existed but still cannot be located, an application for a grant of personal representation can still be made. Rule 54 in the Non-Contentious Probate Rules 1987 sets out the procedure for making an application. There is a rebuttable presumption that, if a Will that was known to have been in the deceased person’s possession before their death cannot be found, it was destroyed by the deceased. Therefore, an application to apply for a grant without the original Will must be supported by an affidavit setting out evidence of the Will’s existence after the death of the deceased, or where there is no such evidence, the facts that would rebut the presumption that the Will has been revoked by destruction.

Comment

A Will contains a person’s last wishes and provisions for their loved ones after they die. It is important therefore to ensure that a Will is properly drafted and stored to prevent the occurrence of an intestacy, in which the distribution of the estate may not achieve the desired outcome.