In the latest Weekly Wright Report:
R-E-S-P-E-C-T My Wishes: Aretha’s Holographic Will
On Tuesday, July 11, a jury in Tennessee ended a long-running family legal dispute when it found that a handwritten note hidden under a couch cushion was the last will and testament of the Queen of Soul, Aretha Franklin. The jury determined that the note sufficiently showed Aretha’s testamentary intent (a fancy term for what you want done with all of your money and stuff when you die), in part because it was signed using a smiley face—apparently a hallmark of Aretha’s signature. This note took precedence over an earlier paper that she kept with other important documents, so the family members who stood to benefit from this earlier document were out of luck.
If this all seems a bit haphazard and ambiguous, especially for a global music icon who surely had the means to have an attorney prepare her will, you’re right. Ideally, a will should be formally typed and signed by the testator as well as multiple witnesses who don’t stand to gain anything from the will. This eliminates any doubt that the will is what it purports to be: a full, transparent and clear directive as to how your assets should be distributed upon your death once all of your debts are paid.
But life is messy, our convictions and relationships change over time, and what we decided in a law office years ago may be different from what we want to do right now. When our time on Earth appears short, or if there is a precipitous change in a close personal relationship, we may not have the time or desire to get an attorney involved to properly formalize our wishes.
To account for this possibility, some states allow “holographic” wills. A holographic will is simply a handwritten document, signed by the testator, that demonstrates the intent to dispose of assets at the time of that person’s death. When done properly, according to the statutes of the state where the testator lived, the holographic will has just as much force and effect as a formal, typed will, and the courts have to treat it with the same level of dignity.
You should be aware, though, that these laws vary widely depending on your state of residence. In Maryland, holographic wills are not enforceable except in a very particular circumstance: only an active overseas servicemember can write a holographic will, and even then it’s only enforceable within a year after it is signed. On the flip side, Virginia generally does enforce a holographic will, provided that it is entirely in the testator’s handwriting (no fill-in-the-blank internet forms!), signed by the testator, and two witnesses who don’t stand to gain from the will can verify your signature and handwriting.
Like in Aretha’s case, when a family member wants to challenge the enforceability of a holographic will, the resulting litigation is often time-consuming and very expensive. Nebulous and imprecise concepts like capacity (the ability to think clearly and make decisions for yourself) and intent have to be determined by a judge or jury whom you’ve never met, possibly years after you have passed away. And no matter how the litigation winds up, someone you loved is likely to be frustrated and unhappy. So, if you want to avoid making a “Chain of Fools” out of your loved ones after you pass away, the best thing you can do for them is to “Jump to It,” and prepare a formal will to be signed before witnesses.
If you have questions about an estate involving a questionable testamentary document, please “Call Me,” Tom Moran, at 804-362-9434 or firstname.lastname@example.org, or contact one of the Maryland-based members of WC&S’s Estates and Trusts team.