Why Are the Notes Found in Aretha Franklin’s Couch a Valid Will?

(Kiplinger's Personal Finance) - Aretha Franklin was known as the Queen of Soul. She will be forever remembered for her musical legacy, which includes “(You Make Me Feel Like) A Natural Woman,” “Respect,” “I Say a Little Prayer” and “Chain of Fools.” She died in 2018 at the age of 76 from pancreatic cancer.

Franklin’s entertainment attorney for almost 30 years, Don Wilson, indicated that Franklin was “a very private person who did not want to share private information” with others, including an attorney, which is why she would write her wishes and estate plan informally by herself.

Franklin prepared a 2010 will that was securely maintained. The 2010 will was discovered in a locked cabinet in her home. That will was not formally typed, but it was written in her own hand. This type of handwritten will is referred to as a “holographic will.”

Each state has its own requirements for a holographic will to be valid. In Michigan, where Franklin lived, the document must be substantially written in the maker’s own hand, be dated and be signed. These requirements are critically important for the Queen of Soul’s estate. Alternatively, a formal “typed” will, such as a will prepared by an attorney, must be signed in the presence of two witnesses.

Michigan jury considers notes a valid will

Two crumpled notes were found after her death underneath Franklin’s couch cushions. Those notes, taken together, were determined by the Michigan court to constitute a valid will. Those notes were dated in 2014 (after the 2010 will). The notes were written entirely in Franklin’s own hand and signed with a smiley face and “A. Franklin.” The Michigan court determined that these “couch notes” constituted a valid will under Michigan law.

Both the 2010 will and the 2014 will provided for Franklin’s four sons to share income from music and copyrights. However, the 2014 will left Franklin’s primary residence to her son Kecalf Franklin and her grandchildren. That home was valued at $1.1 million at the time of her death in 2018 but is worth substantially more now.

The 2010 will required her sons Kecalf Franklin and Edward Franklin to take business classes and obtain a certificate or degree to benefit from the estate. That requirement was not present in the 2014 will. When a court is presented with multiple documents as the decedent’s will, only the last or most recent will controls.

However, the court will also consider whether the second writing is an informal amendment to the first. In other words, can the two documents be read together, or are there inconsistencies that prevent that interpretation? Note that all formally lawyer-prepared wills typically begin with this or a similar sentence: “This is my last will and testament, and I revoke all prior wills” to prevent such an analysis.

Here, the court determined that the “crumpled notes in the sofa” alone constituted Aretha Franklin’s final controlling will. Under Michigan law, the decision that this was a valid will was made by a jury.

How the case might have played out in other states

In California, California Probate Code Section 8252 generally provides that the court (and not a jury) will try and determine contested issues of fact that affect the validity of a will. In California, this would likely have been decided by a judge and not a jury. A judge may have reached a different conclusion due to the interlineations and scribbling, which may not have been viewed as a final expression of her wishes.

Note that Florida does not recognize handwritten wills that are not signed in the presence of two witnesses. If in Florida, Franklin would have been intestate (not having a will), and the beneficiaries would be determined under the Florida probate code.

Most people seek to avoid formal probate court proceedings because the cost is higher, that process takes more time, and all information, including asset information, is completely available to the public as public information.

Franklin’s estate was, at one time, valued at over $80 million. This was substantially reduced by estate tax, the legal fees resulting from years of litigation between her family members, probate court costs and related fees and other unpaid taxes.

Proper planning could have avoided virtually all of those costs and expenses. A revocable trust could have been used to avoid probate costs and expenses. Estate tax planning with irrevocable trusts and other entities could have entirely avoided the estate tax liability.

The legacy left to her children could have been provided in a secure asset protected formally. She could have better planned to pass down her family values and priorities. Instead, the family was embroiled in expensive, long-lasting litigation to resolve this dispute.

By John M. Goralka
July 15, 2023


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