More Aretha- Holographic Wills

It seems that I spoke too soon when I wrote my blog about Aretha Franklin dying without a will.  (http://tripaldredgelaw.blogspot.com/2018/11/aretha-prince-and-simple-need-for.html). According to the New York Times she had three wills – or as the reporters described the documents "the scrawled papers which are dated between 2010 and 2014, are at times barely legible, with cross‑outs, marginal notes and some salty tangents".

Apparently two of Ms. Franklin's sons oppose entering the documents as wills in the probate proceeding.  I am not exactly sure why but it appears that in one of the documents she treated her oldest son Clarence differently than her other three children, which may or may not be because he has some sort of special needs.  The article stated that the final document  drafted in 2014 divided the estate between her children and grandchildren.  If  Franklin were to be determined to have died intestate, then the estate would be equally divided between the four sons.  Michigan (where Ms. Franklin resided at the time of her death) appears to have a holographic will statute similar to the statute we have in Tennessee – which provides that if the document is written entirelyin the testator's handwriting and signed by the testator and expresses an intent to operate as a will – it should generally be admissible.

The important point here is that a holographic will is perfectly legal but it must be written entirely in the testator's own hand (i.e. not typed and then signed) – this is a mistake many people make.  Also there must be a witness available who can identify the deceased's handwriting.

The court in Michigan is going to hold a hearing sometime this month to evaluate the new documents.  Whatever the outcome, it's nice to see that Aretha will probably have the last word. 

Revisiting the Holographic Will

It seems that it is always a good time to review this.  The other day a client asked me if an elderly friend could “dictate” the terms of his will and then sign the transcribed document.  In Tennessee, the answer is no.

            Since 1941, the law in Tennessee has been that a will must be signed by the testator and two or more attesting witnesses who must sign as attesting witnesses in the presence of the testator and in the presence of each other. 

 

            The only significant exception to this is the holographic will which is defined in Pritchard on Wills and Administration of Estates (5^th Ed.) as “a paper writing appearing to be the last will of a deceased person, all the material provisions of which are written in his own handwriting” and “the testator’s name must have been subscribed to it, or inserted in some part of.”  There must be proof by at least two people that they recognize the deceased’s handwriting.

            Note the important part – all the material provisions must be in the testator’s own handwriting.  This is the part that seems to get so often overlooked in the age of word processing. 

            The bottom line is this – there is nothing wrong with someone writing their own will – but it must meet all of the requirements of a holographic will.  If not,  it is completely void. People have occasionally said to me that they don’t mind the document being void as long as it expresses their intent, but this is meaningless. If you die without a will your property passes by the laws of intestate succession—which may or may not be what you intended.  In this era of online will kits and the like, the crucial distinction between a holographic will, a properly attested will and a legally void document often gets overlooked.  This is one of those important times when it just makes good sense  to review the terms of the will with an attorney and have them handle both the preparation and execution of the document itself.