You might think that celebrities, who can make millions of dollars singing or playing basketball, would be able and willing to afford a good lawyer, and a good estate plan—a plan that includes a proper will, explaining who gets what after they die; or (more likely today) a solid and well-drafted trust. But it turns out that not every celebrity does this—or does it properly. There’s a long list of famous (and rich) celebrities who died without a will—Pablo Picasso, Michael Jackson, and Prince, to name just a few.
When Aretha Franklin died in 2018 at age 76, it seemed as if she was heading for this list. There was no record of an estate plan or a formal will. This was not necessarily a problem. She was a resident of Michigan when she died; and Michigan’s intestacy law (the rules that dictate distribution of property when a person dies without a valid will) would have divided the estate equally among her four sons, all of whom survived her.
But it turned out that Franklin did have a will: in fact, she had two of them. They were holographic (handwritten) wills. One of them, dated 2010, was found in a locked cabinet; the other, from 2014, was found scrawled on the pages of a spiral notebook, which was found underneath a couch cushion, with a lot of cross-outs and insertions, barely legible in spots. The two holographs made different provisions for her estate. Franklin also, in the months before she died (of cancer), left voicemail messages with an estate lawyer, in which she talked about yet another plan for dividing her estate that would presumably end up in a will the lawyer would draft. Did these messages have any legal effect? The result of all this was to guarantee trouble in the probate process, and, indeed, that process has been anything but smooth. Members of the family have quarreled with each other, and the estate was mired in years of controversy, to the benefit of lawyers, but probably nobody else.
Freedom of Testation
In the American legal system, people have so-called freedom of testation—the ability to designate successors to their property when they die. The primary way to exercise this freedom is by executing a valid will.
There are some substantive limits to the freedom-of-testation principle. Married people, for example, cannot completely disinherit a surviving spouse. People are allowed in every state but Louisiana to disinherit their children, although they sometimes have to do so expressly if that is what they really want to do. There are also rules that require a person to have sufficient mental capacity to execute a will; and a will can be challenged on the grounds of fraud, duress, or “undue influence”—a vague and troublesome concept.
Even if a person has the capacity to make a will and has chosen an estate plan that does not violate any other rules—the will still must be done right. State statutes set out strict rules that need to be followed.
Traditionally, wills had to comply with a range of formalities. A will had to be in writing. The testator (the person whose will it is) had to sign at the end of the will and in front of at least two witnesses, who had to then sign their own names to the document. Any deviation from the rules, however slight, and the will was nothing but a worthless piece of paper. Making a will was a solemn and ceremonial act, and the rules were supposed to guarantee that the testator knew what he was doing and that there was no way fraud or mistake could creep in. They are also supposed to guarantee that a document that was not intended to be a will does not get treated like one.
The law said, in a sense, you can do what you wish with your money, but you have to do it the way we tell you to, and no other way. So, if you solemnly swore to a room full of people, that you wanted your friend Ezra to get your money, and you died that night, Ezra would inherit nothing at all. There was no “will.” If you were struck by a bus, and killed, on the way to your lawyer to sign your will, leaving everything to Ezra, he would also get nothing. In those cases, we knew exactly what you wanted to do with your money but the document that could have given effect to that result was never finalized. The law was pitiless and inexorable. A will had to be a valid will. This, at least, was the tradition.
Consider, for example, the attitude expressed by the Pennsylvania Supreme Court in 1959, in the well-known case of the estate of one Vasil Pavlinko. Vasil and his wife, Hellen, did not, apparently, know much English; they spoke what was quaintly described as “Little Russian or Carpathian,” presumably Belorussian or Ukrainian. They had a lawyer draw up their wills (in English). Vasil left everything to Hellen; she left everything to him; when the second spouse would die, everything would go to her brother, Elias Martin. But a funny thing happened in the lawyer’s office: Vasil signed Hellen’s will, and Hellen signed Vasil’s will. Hellen died first; her will was (for whatever reason) never probated. Then Vasil died, and perhaps for the first time, it was realized that they had signed the wrong wills. Elias Martin claimed the estate. No luck. Vasil’s supposed will was really Hellen’s will; and as far as his estate was concerned, this document was a “meaningless nullity.”
The facts of the Pavlinko case were unusual, of course, but the underlying attitude was not. One judge, in dissent, disagreed with the outcome. We all know, he said, what the testators wanted—they put it all down in their wills, they named a beneficiary, but now he gets nothing. Why not use common sense and let the Pavlinkos have their way? He complained that the majority was worshipping form over substance—but that was exactly how the law of wills was designed. The majority might have ignored common sense, but it was following the law. In general, formal will requirements were treated as gospel.
Informal, or Holographic, Wills
In some states, however, there was an important exception to this extreme formality: it was the so-called holographic or handwritten will. The holograph needs no lawyers, no witnesses, no ceremony, no formality. Take out a piece of paper and write down what you want to do with your money, sign and date it, and you have a valid will. Put it somewhere safe, preferably, but if you stick it under a cushion, it can still be a valid will, as Aretha Franklin’s sons discovered. (It doesn’t even have to be written on paper—trusts and estates lore is full of stories about wills that were written on walls, carved into tractor fenders, and even tattooed on a person. The relevant question is whether there is a “writing,” not whether the writing is on paper.) The question in many holographic will cases is whether an informal writing was intended to be a will. If it uses words like will or executor, the testamentary intent seems fairly clear. But if it expresses preferences about property (“I’ve always wanted my daughter to have my jewelry”) without any mention of wills, death, or the like, it can be hard to tell whether the document was intended to be testamentary.
Lawyers, of course, never recommend a holographic will (except as a temporary or stopgap measure). Moreover, if your estate plan is at all complicated, you do need a lawyer. Even if you know what you are doing, writing page after page by hand is just too cumbersome. Most holographs, in fact, are short. And it’s easy to make mistakes given that the law is sometimes totally different from what a layperson thinks it is.
In some ways, the law of holographs was itself finicky and demanding. Under the traditional statutes, a holographic will had to be totally handwritten. A single typed word was enough to make it invalid; writing a will on paper with a preprinted logo or address would also invalidate the will because the document would not be “entirely” in the testator’s handwriting, as the law required. But in recent years, the rules have been considerably relaxed. The most typical rule today is that the material portions of the will must be in the handwriting of the testator, but preprinted or typed words can be used for context, to clarify the meaning of the handwritten words.
Moreover, the domain of the holograph has been extended. A century ago, only a few states allowed holographs—states with some civil law influence, for example, California. Now they are found in some states that historically lacked them. Moreover, even in states that do not allow them, a holographic will can be probated if it was written in a state that does allow them when the testator lived in that state.
Aretha Franklin’s Estate “Plan”
Aretha Franklin’s holographic wills were written in Michigan, which now recognizes holographic wills. Illinois, a short distance away, does not. Her estate initially was administered as an intestate estate, with a cousin’s serving as the personal representative. The cousin, who has since resigned the position, filed a petition asking the probate court for instruction on the handling of the newly found documents.
Franklin was survived by four sons: Clarence, Edward, Kecalf, and Ted. Clarence has a mental disability and is not involved in the litigation, though there is apparently an agreement to provide for him regardless of the outcome. The other three sons had different views about the validity of the two handwritten documents.
The jury in the case of Franklin’s estate had to decide whether either or both holographic wills were valid and what effect the later one had on the earlier one.
The 2010 document was discovered, as we said, in a locked cabinet in Franklin’s home in Detroit. This document was more than a dozen pages long; it was signed multiple times by Franklin and also notarized. (A will does not have to be notarized; a notary, however, can count as one of the required witnesses.) This will provided that Kecalf and Edward “must take business classes and get a certificate or a degree” in order to take anything under the will.
The 2014 document was found in the cushions of Franklin’s couch. This document was also signed, although the first letter appears to be a smiley face rather than an initial. The document contained cross-outs and other changes. For example, the original text seemed to name Ted as executor, but then his name was crossed out, and Kecalf’s was added for the position. Substantively, this document also provided for all of her sons to share in the money earned from royalties and other intellectual property, but it favored Kecalf by leaving Franklin’s primary home to Kecalf and the grandchildren. It also did not contain the language requiring Kecalf and Edward to take business classes as a condition of inheritance.
Both documents contained a detailed list of assets, named an executor, and stated who should inherit which pieces of property. Both also contained random additional information, such as musings about men she had dated. Ted argued that his mother would not have signed an important document in this manner and that the 2010 document that was found locked in a cabinet should be treated as her will. He also testified that she would typically consult a lawyer for such issues. She had also left messages, in which she discussed going to a lawyer to get a formal will. Another son, however, testified that she routinely sorted through mail and paperwork while sitting on the couch; he claimed not to be surprised that she would have written something important and left it on the couch.
If a person dies with more than one testamentary instrument, the date each was signed becomes crucial. As a general rule, a later will revokes and replaces an earlier will, even if there is no language to that effect in the document. Although many wills are labeled as a person’s “Last Will and Testament,” a will can always be revoked or replaced as long as the testator is alive and has enough mental capacity to execute a testamentary act.
The jury in Franklin’s case decided that the 2014 document qualified as a holographic will and could be admitted to probate. That document, which once lived in between her couch cushions, will govern the distribution of her estate.
Most people who want to make a will do go to a lawyer. A competent lawyer will make sure the formalities are complied with. But slips by lawyers are less lethal than they used to be. Formal wills are becoming, in a sense, less formal. Courts are less finicky about whether the testator got the tiny details right. Courts in many states will accept a will if it complies “substantially” with the official law; or if the mistakes that were made constitute “harmless error” that do not prevent a court from deciding the document was meant to be a valid will. The Pavlinko case would probably come out differently today, and some later cases did not follow it.
All these changes reflect, in the first place, a general trend in the law against excessive technicality, and toward plainer, more common-sense results. But more important, perhaps, is the fact that today, the will is much less important than it used to be. People with money are likely to embody their estate plan in a living trust. These trusts, for the most part, can be changed, modified, or canceled whenever the settlor feels like it. Functionally, in other words, these trusts have much the same effect as a will. But they do not have to go through probate and run up costs, and they do not require the same formalities, or any formalities at all. The settlor will probably also execute a will, but it is hardly necessary, and are a kind of leftover, like the human appendix.
Moreover, there are many other ways to pass on property at death: insurance policies, to take one obvious example; or by naming beneficiaries of pension plans; or by setting up bank accounts, “in trust for” various beneficiaries. If you put all of these together, you do not have much role left for the traditional will.
Meanwhile, in July 2023, the tangled estate of Aretha Franklin, the Queen of Soul, achieved a certain amount of closure. The judge refused to treat the voicemails as effective indications of intent. Perhaps if they had been more definitive, a judge might have considered them worth considering, though that would have stretched the law further than most judges seem willing to go. In any event, the dispute came down just to the two holographs. The jury’s ruling in favor of the 2014 holograph ended the dispute—for now. No doubt the result is more in line with what Franklin really wanted. More in line with her intent. More in line with a more modern, and more rational, reading of the law. But it came at a considerable price—in dollars, and in brotherly love.