By Dani Gorelov and Zachary Murphy-Rogers.

A jury in Michigan decided that a notebook with scribbles found in Aretha Franklin’s couch is valid as the Queen of Soul’s will.

Franklin passed away on August 16, 2018 without a formal, typewritten will. In 2019, two documents that appeared testamentary in nature were found in her home. The first document, dated in 2014, was found within a notebook in Franklin’s couch. The second document, dated in 2010, was discovered in a locked cabinet in Franklin’s home. Both documents contained scribbles and hand-written messages that described what ought to happen to Franklin’s estate after her death.

Three of Franklin’s sons commenced a legal battle to determine which document, if any, could be valid as a will. Kecalf and Edward Franklin argued that the document made in 2014 should be recognized valid as a will, while Ted White II argued in favor of the document written in 2010. Ultimately, the jury decided that the document Franklin made in 2014 is valid as a will.

Would a B.C. court recognize Franklin’s handwritten will?

Section 37(1) of B.C.’s Wills, Estates and Succession Act (“WESA”) sets out the formal requirements of a will. First, a will must be in writing. Second, the will-maker must sign at the end of the will in the presence of two witnesses. Third, two witnesses must sign the will in the will-maker’s presence. Accordingly, the two documents at issue in the legal battle regarding Franklin’s estate would fail to meet the formal requirements in B.C. because the documents were not witnessed.

Could anything be done in B.C. to recognize the legal validity of Franklin’s handwritten documents?

Pursuant to section 58 of WESA, a B.C. court would have the discretion to recognize Franklin’s documents as a will. Section 58 is a curative provision that allows the court to recognize the legal validity of a document that is testamentary in nature, but which fails to meet the formal requirements of a will set out in WESA.

In determining whether to recognize the validity of a document that is testamentary in nature pursuant to section 58 of WESA, B.C. courts consider two “principal issues” (Re Young Estate, 2015 BCSC 182): first, is the document authentic? and second, does the document represent the testamentary intentions of the deceased?

The document’s authenticity is not usually an issue for the courts. Typically, a court is satisfied that a document that is testamentary in nature is authentic where the deceased hand-wrote or signed the document.

More often, the court’s decision primarily rests on the intentions of the deceased. The court will undertake an analysis of the facts to determine whether or not the document represents the deceased person’s testamentary intentions.

B.C. courts have previously indicated that the following factors are indicative of the deceased’s testamentary intentions, and lend support for a finding that a document is testamentary in nature (i.e., is “will-like”):

• the deceased has signed the document;
• the deceased labelled the document as a “will”;
• the content of the document, specifically the distributive nature in contemplation of death;
• an executor and/or an alternate executor is appointed in the document;
• the document contains at least one witnesses’ signatures;
• there are alternative gifts made in the document, should a beneficiary predecease the will-maker;
• discussions the deceased had with others regarding the gifts made in the document or the fact he or she was making a will;
• the completeness of the overall document;
• the handwriting is identified as belonging to the deceased;
• the document includes funeral arrangements; and
• specific reference to an earlier will.

On the other hand, B.C. courts have identified that the following factors will more likely defeat the finding that a document is testamentary in nature:

• the deceased did not disclose the document to anyone;
• the deceased had a pre-existing, formally executed will, such that he or she can be taken to have known of the formal execution requirements;
• the deceased had received draft wills from her lawyer, but had continually failed to make an appointment with the lawyer to execute the will, or otherwise failed to execute the will;
• the documents are written in a manner that suggests “impermanence and informality”;
• the document is not witnessed;
• the document does not revoke an earlier, formal will;
• the document does not have a title, such as “will”;
• the document is in the form of a note to a person, rather than the more formal language associated with a formal will;
• the document is not signed by the deceased; and
• there is a spelling error in the deceased’s name, as written on the document.

Interestingly, the trial concerning Franklin’s estate in Michigan was decided by a jury. In B.C., the legal validity of documents that are testamentary in nature is decided by a judge, not a jury.

Takeaway: the Franklin estate dispute shows the necessity of having a valid will

Franklin’s 2014 testamentary document was validated as a will after years of costly and time-consuming legal battles between her children. Franklin could have avoided the litigation for her estate by creating a legally valid will. In B.C., although section 58 of WESA allows the courts to ‘cure’ a document that does not meet the formal requirement of a will, this provision is highly discretionary and fact-specific. Parties resorting to section 58 frequently end up in expensive litigious battles, with uncertain outcomes. It is far preferred to have a will that meets the formal requirements set out in WESA.

 

If you are looking to create a will, or have any concerns over the validity of your or another person’s will, please contact the authors of this article, or another member of our Estates & Trusts group.