The dangers of handwritten wills

  • Insight

05 August 2019

The recent publicity surrounding the estate of the late, great Aretha Franklin begs the question: why do so many rock and pop legends not leave behind a legally binding legacy, as well as a great musical one? Some rock and roll legends die with no will at all – Jimi Hendrix, Bob Marley, Amy Winehouse and, more recently, Prince to name but a few.

Now the Aretha Franklin estate will be subject to litigation in the US as a result of three handwritten wills being found at her home in Detroit, where previously it was thought she had died without one. So, what are the dangers of handwritten wills?

Is your handwritten will actually valid?

Homemade wills are more open to challenge on the suspicion that they are forgeries or written under duress. One of Aretha Franklin’s wills was handwritten inside a spiral notebook and it is unclear whether this revoked any of her older wills, two of which were found in her home.

In Scotland, for a will to be valid, it must follow statutory requirements and, where your solicitor draws up your will, they will ensure that these are complied with and that the will is correctly signed and witnessed.

Are my intentions clear?

Two of Aretha’s four sons are now in dispute over her wishes and have instructed attorneys to initiate court proceedings. Having a clear and well-structured will removes ambiguity and reduces the chances of bitter, and costly, disagreements.

Who will wind up your estate?

Your will should set out who you want to be your executors. In Aretha’s handwritten will, this wasn’t clear and this is also now being challenged in the US courts. You should appoint people who will make sound decisions and who can work well together. Having at least two executors is sensible in the event that one is unable to act.

Is my will in a safe place?

It was originally thought that Aretha had died intestate (without leaving a will) until one was later found hidden under her sitting room cushions – not a place we would recommend. Your solicitor should keep the original signed will in a fireproof safe to prevent loss or damage.

What if my handwritten will is invalid?

Who will inherit Aretha’s 18 Grammys? The default position in Scotland is that the estates of those who die without a valid will are distributed according to the rules of intestacy which set out who will inherit the residue of your estate, in what order, and to what extent. Specific items that you had wanted to leave may not end up with the person you wanted.

Can’t my family just go to court anyway to fix my will?

In Scotland, defective provisions within a will can be rectified by applying to the Sheriff Court. But the will has to be valid in the first place, and drawn up by a third party, so DIY wills cannot be changed this way.

Will my handwritten will look after young people or those with special needs?

We don’t know if Aretha’s will (or wills!) set out any special provisions to, for example, protect the inheritances of young beneficiaries, or provide for those with special needs, or take account of children from a previous marriage. Including trust provisions in your will can be a useful way of looking after these individuals and dealing with other potentially difficult family situations.

Will my handwritten will result in extra inheritance tax?

Succession and sensible tax planning should go hand in hand. Aretha Franklin reportedly left an estate of approximately $80 million. One or more handwritten wills, giving rise to various claims on her estate, may result in more US estate taxes being paid than strictly necessary. When drawing up your will you should think about making best use of exemptions and reliefs from inheritance tax, what is the extent of any tax that is likely to be payable and who will end up paying it.

Writing a will and keeping it up to date should provide peace of mind for you and certainty for family members at what will already be a difficult time. This should ensure there is indeed R.E.S.P.E.C.T for your wishes.

For any queries regarding wills, please contact Colin Henderson or someone from our Private Client team.

This article can also been seen on The Scotsman website here.  

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