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Earlier this month, a Michigan jury considered whether handwriting in a spiral notebook found under a couch cushion at singer Aretha Franklin’s home constituted her valid last will.  Franklin had written and signed the four-page document, and dated it “3/31/14,” but it was not signed by any witness.  A six-person jury deemed the 2014 will worthy of “respect,” rejecting the contention of some family members that a handwritten – and notarized – will dated 2010 should control.

The Aretha Franklin will dispute might have played out differently had it been heard in another state.  Indeed, there is substantial variation from state to state as to when handwritten wills (also known as “holographic wills”) are acceptable and how their validity is determined.  Let the “day dreaming” begin. 

Must a handwritten will be signed by witnesses to be valid?

(Lawyer’s favorite) answer: it depends.

In California, as in Michigan, typewritten wills generally need signatures from two witnesses to be found valid.  (See our recent post on California’s “harmless error” rule.)  Yet both states allow latitude for wills handwritten by the testator.  Under California Probate Code section 6111, for example, a will is valid if “the signature and the material provisions are in the handwriting of the testator.”  Such a handwritten will can be written in private and kept confidential as there is no witness requirement.

In Florida, however, the sun does not shine on unwitnessed handwritten wills.  Fellow blogger  Juan C. Antúnez observes: “If Aretha Franklin had died a resident of this state both un-witnessed wills would have been automatically rejected as a matter of law.  She would have died intestate, which means her children would have split her estate equally by default.”

Antúnez goes on to explain the policy advantages of Florida law: “One of the benefits of requiring execution formalities to be scrupulously complied with for a will to be legally enforced in Florida . . . is that these requirements have the side effect of standardizing what most wills look like.  Generally speaking, most Florida wills are going to follow a standard format that’s easily identifiable. Academics call this ‘channeling.’” 

The Florida approach, as Antúnez notes, avoids the need to ponder “whether mom’s hand written thoughts with crossed-out words and scribblings in the margins” constitute her will, but at what cost?

If an elder takes time to write out a will, should we not try to effectuate the elder’s intent, even if expression could have been clearer?  In Franklin’s 2014 will, for example, she left her home to one of her four sons – a choice that was hers to make.

There are competing policy arguments as to whether witnesses should be required to validate handwritten wills, but the practical point is that the answer varies from state to state.

Does a jury get to decide whether a will is valid?

Michigan jurors were probably delighted to play a role in deciding whether the “Queen of Soul” had written a valid will and left it under a cushion.

In California, jurors used to decide will contests.  In 1988, however, the Legislature enacted Probate Code section 8252, which states that the “court shall try and determine any contested issue of fact that affects the validity of the will.”  A possible exception is that if a dispute over the validity of a will is framed as a complaint for financial elder abuse the parties may have a right to demand a jury trial.

On this issue, the Sunshine State is like the Golden State.  Antúnez explains: “In Florida we don’t have jury trials in will contests.  But if you’re creative and the facts line up just right, your inheritance case could be decided by a jury if it’s framed as a ‘tortious interference with an expectancy’ claim.  The question then becomes, does it matter?  Short answer: YES!”

Thus, had the validity of Aretha Franklin’s will been heard in California or Florida, the decision likely would have fallen to a judge, not a jury. State law variations aside, Franklin’s “amazing grace” is something we can all agree upon.