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R.E.S.P.E.C.T. my final wishes

Recently, you may have heard about a dispute over the estate of Aretha Franklin.

In short, Aretha Franklin made two wills in 2010 and one in 2014. The wills were irregular and written in her own handwriting with many scribbled amendments. After her passing, her house was scoured with the 2010 wills found in her safe and the 2014 will in a notebook found down the back of her couch (literally, not figuratively).

The Aretha Franklin Estate

The main differences between the wills relate to control of her estate (and, by extension, her legacy and royalties) and ownership of her home. The matter has caused a costly five-year argument between her sons, who have different opinions as to which will is valid.

Ordinarily, the most recent will would revoke the previous will. However, the 2010 will was signed by Franklin and notarised, while the 2014 will had an incomplete signature coupled with a ‘smiley face’ icon.

What’s an Informal Will

Under the relevant American law, both wills were potentially valid, even though they were handwritten and unwitnessed. The law of Michigan would still consider them valid wills if Franklin so intended when she made them.

The situation in Australia is slightly different.

A document that appears to be a final will – notwithstanding procedural defects in execution or witnessing – can still be proved so that it becomes enforceable and binding. This process will involve an application to the Supreme Court, which will require evidence that the will-maker intended the document to operate as their final will. In this way, all sorts of documents such as text messages, video wills or formal wills that were never signed might be granted probate.

Of course, in any scenario, a will-maker who has seen a lawyer will be in a better position. A valid will that is properly executed minimises the chances of a dispute. And even if the formality of the will is challenged on a technical basis, the process of engaging with a lawyer will generate the type of evidence that a court would want to see when proving an informal will.

However, if the will cannot be proved, the will-maker may die interstate in which case their estate will be distributed according to the laws of intestacy. This may result in a very different allocation of assets to what they had intended.

This is why it’s best to have a formal will that is properly executed and witnessed. And for heaven’s sake, don’t sign legal documents with a ‘smiley face’.

Aintree Group Legal will be happy to discuss your estate planning needs. Contact us today.