Co-written by: Kim Gale and Palak Mahajan

Two handwritten wills of the late singer Aretha Franklin have spurred some discussion on the issue of holographic wills.

Brief facts

Franklin passed away in 2018. She is survived by four adult children: Clarence Franklin (Clarence), Edward Franklin (Edward), Teddy Richards (Teddy), and Kecalf Franklin (Kecalf). Clarence was not involved in the subsequent dispute between the other three children. Franklin’s niece, Sabrina Owens, was selected as the personal representative of the estate.

During the search of the Franklin’s home, the personal representative found two different handwritten wills. One was in a notebook under a couch cushion and was dated 2014 (the “2014 will”). The other will was located in a locked cabinet and was dated 2010 (the “2010 will”).

Both wills contained contradictory instructions pertaining to the distribution of the estate. Both wills indicate that the sons would share income from music and copyrights. The 2010 will named Teddy and Owens as personal representatives and stated Kecalf and Edward “must take business classes and get a certificate or a degree” to benefit from the estate.

The 2014 will crosses out Teddy’s name as the personal representative and has Kecalf’s name in his place. There is no mention of business classes. Additionally, Kecalf and the grandchildren would get the Franklin’s main home in Bloomfield Hills, Mich.

In the 2014 will, Franklin states that her gowns could be auctioned or go to the Smithsonian Institution in Washington. She indicated in both papers that oldest son, Clarence, who lives under a guardianship, must be regularly supported.

Kecalf and Edward favoured the 2014 will while Teddy favoured the 2010 will. A six-person jury deemed the 2014 will worthy of “respect,” rejecting the contention that the 2010 will ought to be valid as it was notarized.

Decision of the jury

• The jury considered the law pertaining to the validity of wills in Typically, a will is valid under the Michigan law if it meets three requirements: (i) it is in writing; (ii) it is signed by the testator or, while the testator is present, by another at the testator’s direction; and (iii) it is signed by at least two witnesses in a reasonable time after seeing the testator sign or after the testator acknowledges the signature.
• However, Michigan recognizes handwritten or “holographic” wills if the document is signed, dated, is in the testator’s handwriting and demonstrates by clear and convincing evidence that the testator intended the document to be their
• The jury decided that the 2014 will was valid on the grounds that: (i) it was more recent; (ii) handwritten with Franklin’s signature at the end of the document and (iii) reflected her clear intention for the document to be a will.

If Franklin was in Ontario: Section 21.1

If Franklin was a resident of Ontario, it is likely that the 2014 will would have also been upheld in Ontario.

While Franklin’s estate raises a novel issue, the legislature has made room for holographic wills in Ontario. With section 21.1 of the Succession Law Reform Act (SLRA), the legislature appears to provide the courts the power to validate a testamentary document or writing that does not comply with the formalities of execution.

Section 21.1 of the SLRA now provides that if the court is satisfied that a document or writing that was not properly executed or made under the SLRA (which sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive their will), the court may order that the document/will is a valid and effective will of the deceased, or as a revocation, alteration or revival of the existing valid will.

This provision was incorporated with a view that an approach which is too rigid may result in a barrier to promoting testamentary freedom and intention. This new judicial discretion should ensure that an individual’s final testamentary intentions are not defeated by inadvertent or clerical errors.

Analyses under section 21.1 of the SLRA are to be fact-driven to the very nature and circumstances of the making of the document itself, the expression of final wishes and the intention of the testator.

The goal appears to be to protect a person’s last wishes, and to ensure that too strict an adherence to formalities does not block the testamentary intention they are intended to protect. The SLRA now has clarified that there ought to be “substantial compliance” and not “strict compliance” to determine a will’s validity.

This article was originally published by Law360 Canada part of LexisNexis Canada Inc.