ISSUE 53 Expert Witness Journal - Journal - Page 4
Should DIY Wills get a Little Respect?
The Lessons From Aretha Franklin's
Will Found Under the Sofa
The 11 July 2023 saw the end of a debate which endured for over four years: succession to the
estate of the late, great, Aretha Franklin. A Michigan court has ruled that one of two handwritten
notes represented Franklin's last will and testament and will now govern the distribution of her
estate.
Many believed that Franklin never made a will prior
to her death in 2018. However, the discovery of two
handwritten notes – one dated 2010 inside a locked
desk drawer, and another dated 2014 underneath
sofa cushions – led to a court being asked which was
determinate of her final wishes. Apparently neither
document was witnessed or prepared by a lawyer, but
both were signed, and the former was notarised. Both
wills were reported to share similarities but did have
some noteworthy differences. The Michigan court was
to determine which will met the legal requirements
for 'handwritten' wills under state law, with it ruling in
favour of the 2014 version. While the outcome does
settle the question of succession to Franklin's estate, it
does make one wonder how a comparable situation
would have played out under Scottish rules.
cancel earlier versions at least to the extent that they
are inconsistent with the later version. The 2014 note
would have greater weight than the 2010 version. In
any event, the dispute would most likely have ended
up in the same place as it did in Michigan: the court,
as only it can settle debates on validity. Notwithstanding the popularity of 'DIY' wills, even for legends like
Ms Franklin, they can confuse succession to an estate
– the opposite of what wills are intended to do. The
best advice for anyone looking to put a will in place
would be to seek professional advice on how to do so.
This article originally appeared in The Scotsman, 31
July 2023.
Contributor
Kevin Winters - Senior Solicitor
https://brodies.com
Scotland, like Michigan, does have rules concerning
wills: the first set of significance dictates whether or
not a document can even be considered as a will, and
the second set determines whether or not the will is
formally valid i.e., can be relied upon in court.
Broadly, for a document to be considered as a will it
needs to evidence three things on behalf of the person
who makes it: the mental ability to prepare a will; the
intention to make a will; and it must be signed at the
end by the person making it. Provided all three 'essential' elements are present in the document then it
is a will. However, to be evidence of the persons
wishes, it will need to be 'self-proving' – meaning that
it must comply with the Requirements of Writing
(Scotland) Act 1995. Broadly, the Act requires that the
person making the will signs at the bottom of every
page, and that their signature is witnessed.
Andrew
Andr
ew Acquier
Acquier, FRICS
CHAR
ARTE
TERED
ED ARTS
AR S SURVEYO
S VEYOR
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Andrew Acquier FRICS has been working as an independent
valuer since 1982, specialising in fine art and antiques.
Instructions for probate, divorce settlement, tax/asset and
insurance valuations as well as expert witness work are
regularly received from solicitors and other professionals.
Andrew has many years experience of compiling reports
for litigious cases, several of which have necessitated a
subsequent court appearance as an expert witness to argue
quantum. Divorce valuations are a speciality, usually as Single
Handwritten or 'holograph' wills are a tricky sort.
Assuming they demonstrate the three 'essential' elements mentioned earlier, a handwritten document
can be a will. However, they can create more problems
than they solve. They may lack the relevant words to
meet the 'essential' criteria of a will, their terms may
be contradictory, they may not comply with the legislation, or all of the above! The question of how Ms
Franklin's wills would be dealt with under Scots law is
an interesting one.
Joint Expert. He is an Associate Member of Resolution.
Work is carried out throughout the UK and abroad.
23 York Street
Broadstairs
Kent
CT10 1PB
Tel: 0207 353 6440
Mobile: 07787 518 861
It seems that both wills meet the essential
requirements under Scots law. Both were reported to
be similar, but with notable differences and neither
was witnessed. In Scotland, later wills by implication
EXPERT WITNESS JOURNAL
Email: andrew@andrewacquier.co.uk
Website: www.andrewacquier.co.uk
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