Aretha Franklin has often been cited as one of the most high-profile celebrities not to have made a Will. But nine months after she passed away, there was a significant discovery.
Two Wills were uncovered. The first, from 2010, was a handwritten note found along with other documents in a locked desk drawer in her home. The second – also handwritten but dated 2014 – was in a spiral notebook wedged under the cushions of her sofa.
Was the 2014 note a valid Will that superseded the first? That was the question for the US court that heard the case which embroiled Franklin’s family. And the outcome would be significant because of the difference in the inheritance provisions made in 2010 and in 2014. It is said to have taken jurors less than an hour to decide that the later Will was valid. Among the reported facts are:
- The Will included the words: “…being of sound mind, I write my will and testimony”.
- One son said Franklin often handled business on the sofa. “It doesn’t strike me as odd”, he said, that a Will was found there.
Some may be surprised that a document, seemingly so informal, could hold the same legal status as a lengthy, typed document drafted meticulously in a lawyer’s office. Does it mean that formalities don’t really matter? Or that there’s no need to involve a lawyer at all?
It’s certainly possible to prepare your own Will, but this can be a risk. There are two main reasons. The first is that the law in England and Wales is very specific about the things that are necessary for a Will to be valid. These are that the Will must be in writing and that the person making it must:
- be at least 18 (there is a military personnel exception)
- have the intention to make the Will, voluntarily and without pressure from anyone else
- have ‘capacity’ – a sufficient degree of understanding
- sign the Will in the presence of two witnesses, who are not beneficiaries
- be present while the two witnesses sign the Will
If one or more of these requirements is missing, the Will is likely to fail. An invalid Will means that efforts to control the way in which assets will be distributed post-death will have been in vain; the laws of intestacy take over, dictating who the beneficiaries should be and the order in which they should inherit. This can lead to outcomes that the deceased may not have wanted, and family disagreements which needn’t have come about.
As Wills and inheritance specialists, we help clients benefit from the certainty of having a valid Will in place. Part of this involves checking two of the less straightforward requirements of validity: the voluntary Will, and ‘capacity’ (or ‘sound mind’, as it used to be known). We may suspect that our client is being pressured to write their Will in a particular way. Asking the right questions and ensuring they know that undue influence could render their Will invalid means clients are in the best place to make the right decisions. Equally, it’s sometimes apparent to us that a client’s ability to understand what it means to make a Will and its effects is compromised. In some situations where there is doubt about capacity, a medical assessment can be made and a certificate provided.
The second reason it’s wise to have a specialist solicitor prepare your Will is that they will make sure your Will says everything it should, in the right way. The ideal outcome is that a Will is thorough and easily understood and applied after a person’s death. A document that doesn’t deal with the entire estate, doesn’t properly identify beneficiaries, uses contradictory or otherwise unclear language, or attempts to put in place arrangements that may be unwise or even illegal or otherwise unenforceable, will cause problems further down the line. It’s our job to help clients get the right provisions in place, taking account of their personal circumstances. This can lead to broader discussions around tax efficiency, for example, which can be useful to clients keen to maximise the value beneficiaries will receive from the estate.
Writing your own basic Will could well bring some benefits, but there is a danger that it will create uncertainty and perhaps even conflict in your family. Having a lawyer alongside you as you collate details of your estate and its value and make important decisions about beneficiaries and inheritance can significantly improve the outcome. And you’ll get peace of mind that the right people stand to benefit as you’d like them to once you have passed away.