Two homemade Wills – one made in 2010, the other in 2014, were found hidden amongst ‘Queen of Soul’ Aretha Franklin’s personal possessions after her death. Was either Will legally binding? And, can handwritten, homemade Wills really be valid?
You may know already that Wills must be signed in a certain way to take legal effect. Aretha Franklin’s were, of course, subject to Michigan, US law, not the UK – but the principle of them needing to adhere to some legal formality is the same.
Her two Wills essentially said different things in terms of who got what. Notably, the later Will gave one of her sons her mansion that he would not get if the earlier Will stood. The family went to court, and the case naturally drew media attention. The 2014 later Will ultimately stood, with the court finding that it had legally superseded the 2010 one. This was despite the 2014 one being markedly more ‘makeshift’ than the previous.
So, what are these formalities for making Wills? Can homemade Wills be valid as opposed to those made by professionals? If yes, why not just do it yourself?
Properly signing a Will
The first step is making sure this is done properly. To take legal effect, a Will must be
- in writing
- signed by the person making it
- witnessed by two independent adults who must also sign
The apply named Wills Act, way back from 1837, sets out these requirements.
There are exceptions, and other points – for instance, a beneficiary losing entitlement to their inheritance if they act as a witness. That is for another article.
Homemade Wills
Whilst perfectly capable of being valid, that does not mean they are advisable, or risk-free. Scruffy, homemade Wills found hidden in people’s houses have been deemed as legally binding as professionally drafted ones. The parties arguing for Aretha Franklin’s 2010 Will pointed out that it had (unlike the 2014 one) been countersigned by a legal professional. They further said that if it were “intended to be a Will, there would have been more care than putting it in a spiral notebook under a couch cushion.” Their opponents arguing for the 2014 Will, though, pointed out that the less formal nature and hiding place had no bearing on validity: “You can,” they said, “take your Will and leave it on the kitchen counter. It’s still your Will.” And yes, UK courts have tended to be open-minded: In Kell v Charmer [1856], a judge found a homemade Will to be valid where, on the face of it, the wording was meaningless: it was in fact written in jeweller’s code.
All fine, then? Not if you want to avoid costly court proceedings interpreting your Will’s meaning!
Handwritten vs typed
Typing obviously is preferable, with less risk of being unable to read handwriting. Invariably, most Wills prepared by professionals will be stored on computers, for ease of access if needing updates further on. And, whilst on that subject, remember it is always sensible to keep your Will under review for your changing circumstances.
Interestingly, “in writing” does not mean it needs to be on paper: the strange case of Hodson v Barnes [1926] saw a judge decide that a Will written (somehow!) on an eggshell was valid. As you’d imagine, we do not recommend writing Wills on anything other than paper, and certainly not on eggshells!
What about the jargon?
So, if I can handwrite or type my Will at home, why do I need to bother with legal advice?
Legal professionals will use tried and tested wording to ensure your Will meets with your instructions. Here are some real-life problems that have arisen from homemade Wills’ wording:
- Confusing wording identifying a person: the shortest known Will argued over in court, in Thorn v Dickens [1906], was simply written by its writer: “All to mother.” The problem was that he actually meant his wife, the mother of his children, not his own mother. A Will should always address people unambiguously, with full name, relationship if appropriate, and current address. Not being able to identify someone named in a Will can cause legal and practical problems.
- Meaning of words or technical terms unclear: what a word means to one person might be very different to another. In Re Barnes [1972] the judge pointed out that “money” (an innocuous word surely?) could vary in meaning from person to person – to some, loose change in their pocket, whereas to other, everything cash-related they owned. A professionally-drafted Will should always include legally recognised definitions – yes, this can be lengthier, but avoids ambiguity (and potentially difficult legal issues deciphering intentions!)
- ‘Revocation’: a Will should be clear that it is intended to replace (‘revoke’) previous Wills and should contain wording making that clear. In Re Howard [1944], the person in question made a Will in 1933, but then made two more – both on the same day – in 1940, each of which gave his all estate to completely different family members. He and family all then died in an air raid. Which Will was valid? In fact, none. The later two cancelled the first one, but they were completely inconsistent with each other, and it was unclear as to which had been signed first. The man was treated as having left no Will at all, and the law then would have dictated where all his estate and property went. Professionally drafted Wills are commonly signed under supervision in an office, and a permanent record of that kept in case queries arise in the future.
So, whilst like the Queen of Soul’s case, homemade Wills can be valid, there are pitfalls aplenty that ultimately can be costly and even end up in court. We would always recommend getting specialist advice over going it alone.
If in doubt
