Written by Katherine Pymont, Senior Associate in the Trust & Estates Disputes team at Kingsley Napley LLP
It has been widely reported that a handwritten document by the late Aretha Franklin found at her home after she died has been determined a valid will by the US court.
Franklin’s sons have been in dispute for several years over the validity of the document. Immediately following her death it was assumed that Franklin had no will and steps were taken to administer her estate on that basis before two separate handwritten documents – one dated 2010 and the other 2014 – were found at the singer’s property. The preparation of the 2010 document involved a lawyer with the document relied on having been notarised, whereas the 2014 document was simply signed and dated by Aretha and indeed located behind a cushion on her sofa after she died. Nonetheless, the latter was found by a jury of 6 people to be a valid will for the purpose of Michigan law. The estate has been valued at over $4 million.
In order for a will to be valid in England and Wales:
(i) The person making the Will must have testamentary capacity (i.e. be over 18 years of age and of sound mind);
(ii) The person making the Will must do so voluntarily, without undue influence and must know what the will says;
(iii) The Will must be in writing; and
(iv) The Will must be signed by the person making the Will in the presence of two witnesses and then be signed by the two witnesses, in the presence of the person making the will, after s/he has signed.
A Will does not need to be dated in order to be valid and the involvement of lawyers is not a requirement (albeit in our experience handwritten and homemade wills tend to give rise to more issues than those prepared by professionals).
In the Franklin case it does not appear to have been suggested that the handwritten documents were created by anyone other than Franklin herself but this is often an allegation that comes hand in hand with the production of handwritten documents after the deceased’s death (invariably by the individual set to benefit from the wishes set out in that document). If it turns out that a will has been forged or has been obtained by fraud, then it will be declared invalid. A will might have been forged in its entirety or it could simply be that the signature of the person making the will has been forged. An example of a fraudulent document might be where the testator has signed the document but does not know it is a will and believes it to be something else.
Will forgery and fraud are criminal offences, as well as civil offences. In civil cases, the claimant must convince the court on the balance of probabilities that it is more likely than not that forgery or fraud has taken place (that is, more than 50% likely). In criminal cases the standard of proof is higher; the court must be satisfied beyond reasonable doubt that forgery or fraud has taken place. Whether civil or criminal proceedings are contemplated (or both), the evidence relied on by a claimant will often be the same and expert evidence will most likely be a central part of any case. Obtaining the opinion of an independent forensic document examination expert early on in a case will be crucial to determining whether or not there is evidence to support a claim that a will is invalid due to fraud or forgery.
Homemade wills are often badly drafted, contain mistakes or are wrongly executed. Their existence also makes comparable false documents less obvious and more difficult to disprove. Consequently, it is strongly recommended that individuals instruct qualified professionals to prepare their wills to avoid some of the more obvious drafting pit falls and ensure correct execution as well as a comprehensive record of their wishes being held on the professional’s file which may later be relied on as evidence in support of the will being valid.
