Should DIY wills get Respect?​​​​​​​ - Kevin Winters

July 2023 saw the end of a debate which endured for over four years: succession to the estate of the late, great, Aretha Franklin. A Michigan court has ruled that one of two handwritten notes represented Franklin's last will and testament and will now govern the distribution of her estate.

Many believed Franklin never made a will prior to her death in 2018. However, the discovery of two handwritten notes – one dated 2010 inside a locked desk drawer, and another dated 2014 underneath sofa cushions – led to a court being asked which was determinate of her final wishes. Apparently neither document was witnessed or prepared by a lawyer, but both were signed, and the former was notarised.

Both wills were reported to share similarities but did have some noteworthy differences. The Michigan court was to determine which one met the legal requirements for 'handwritten' wills under state law, ruling in favour of the 2014 version. While the outcome does settle the question of succession to Franklin's estate, it does make one wonder how a comparable situation would have played out under Scottish rules.

Scotland, like Michigan, has rules concerning wills: the first set of significance dictates whether or not a document can even be considered as a will. The second set determines whether or not the will is formally valid and can be relied upon in court.

Kevin Winters is a Senior Solicitor at Brodies LLP

Broadly, for a document to be considered as a will it needs to evidence three things on behalf of the person who makes it: the mental ability to prepare a will; the intention to make a will; and the signature at the end by the person making it.

Provided all three 'essential' elements are present in the document, it is a will. However, to be evidence of the person’s wishes, it will need to be 'self-proving' – meaning it must comply with the Requirements of Writing (Scotland) Act 1995. Broadly, the Act requires that the person making the will signs at the bottom of every page, and that their signature is witnessed.

Handwritten or 'holograph' wills are a tricky sort. Assuming they demonstrate the three 'essential' elements mentioned earlier, a handwritten document can be a will. However, such wills might lack the relevant words to meet the 'essential' criteria of a will, their terms might be contradictory, they might not comply with the legislation, or all of the above! The question of how Ms Franklin's wills would be dealt with under Scots law is interesting.

It seems that both meet the essential requirements under Scots law. Both were reported to be similar, but with notable differences and neither was witnessed. In Scotland, later wills by implication cancel earlier versions at least to the extent that they are inconsistent with the later version. The 2014 note would have greater weight than the 2010 version.

In any event, the dispute would most likely have ended up in the same place as it did in Michigan: the court, as only it can settle debates on validity. Notwithstanding the popularity of 'DIY' wills, even for legends like Aretha Franklin, they can confuse succession to an estate – the opposite of what wills are intended to do. The best advice for anyone looking to put a will in place would be to seek professional advice on how to do so.