Lessons From Aretha Franklin’s Holographic Will

Aretha Franklin left two wills. 

One, drafted in 2010, specified how she wanted her $6 million estate distributed.

But another, handwritten and dated 2014, laid out different terms. This handwritten will, discovered in Franklin’s home under a seat cushion after she died in 2018, was filled with cross-outs and insertions and was generally unintelligible.

Franklin’s heirs challenged the handwritten will—also known as a holographic will—and yet, a jury in July 2023 found it was valid, overriding conflicting provisions contained in Franklin’s 2010 will.

A court now must decide whether the holographic will completely nullify the 2010 will.

The lessons from the late musician’s situation are important for many reasons, including what church leaders should know about how holographic wills may affect gifts involving their churches. 

So, what is a holographic will? It is one written entirely in someone’s handwriting (the “testator”) and includes the testator’s signature.

Holographic wills are recognized in the majority of states (consult a local estate attorney to determine whether they’re recognized in yours), and are often considered valid even though no one witnessed the testator’s signature. As a result, the provisions of such wills take precedence over provisions in prior wills that are executed in compliance with state law.

And, as seen in the Franklin case, because holographic wills are so easy to create, they have led to many disputes by family members, churches, and other charitable organizations regarding their legal validity 

There have been many cases involving the validity of handwritten wills leaving gifts to churches and other charities. 

Here are several examples:

The day after executing her will, the deceased met with her pastor and his wife and executed a handwritten document containing the testator’s signature and the following text: 

“I want to donate $150,000 to God in order to build a church.” 

The church insisted that the handwritten document signed by the deceased represented a legally valid holographic will that should be probated. The heirs argued that the document merely expressed a present intent to give money and was not a testamentary instrument. A Michigan appellate court sided with the church, and ordered the holographic will to be probated. 

In re Estate of Smith, 651 N.W.2d 153 (Mich. App. 2002).

Church Law & Tax Co-Founder and Senior Editor Rich Hammar was involved in the case of a 93-year-old single man from Kentucky with no living relatives and an estate valued at more than $1 million.

When the man died at home, someone found a holographic will entirely in his handwriting that contained the following sentence:

“I leave my estate, in its entirety, to a nursing home that has a chapel for Pentecostal worship.”

More than 25 nursing homes from around the country filed claims with the probate court seeking distribution of the entire estate to themselves. Many of these homes had some affiliation with a church or religious denomination, although many of these would not be considered “Pentecostal.” 

A few were operated by a government agency, rather than a church or denomination, and were creative in describing to the court their status as a Pentecostal institution.

After 10 years of litigation the probate court ordered the entire proceeds of the estate to be distributed to a nursing home in another state having no ties to a Pentecostal denomination. 

By this time, the $1 million estate had been reduced to a mere $40,000. 

The remainder was spent on legal fees, hardly a result the testator could have imagined.

A woman drafted a holographic will that left half of her estate to her church. Upon her death, some of her heirs challenged the legality of the holographic will and took the case to court. 

A probate court concluded that the holographic will was invalid, and the church appealed. 

A Texas appeals court ruled that the will was valid, and so the gift to the church was enforceable. Unfortunately, the estate was significantly diminished through legal fees.

Estate of Abshhire, 2011 WL 3671998 (Tex. App. 2011).

A woman (Jane Doe) died, leaving a holographic will that provided:

Several heirs of Jane Doe filed a will contest with a probate court, claiming that the holographic will was invalid, and therefore the entire estate should be distributed to them with nothing going to the church. The heirs argued that the will was invalid because it did not identify the trustees, executors, or the “church.” 

The court concluded:

Lewis v. Darnell, 580 S.W.2d 572 (Tenn. App. 1978).

John Doe lived alone on a farm in South Dakota. He executed a document entirely in his own handwriting purporting to dispose of his property upon his death. He died a few months later. 

The decedent’s sister searched his home and bank boxes thoroughly after his death but could find no will. She, the sheriff, and others went through the papers of the deceased in his home. Some were destroyed. Others were piled into boxes and stored in a rented barn near the home of a niece. 

The niece found a holographic will entirely in the testator’s handwriting that left his entire estate to his church. 

This will was submitted to the local probate court. All of the witnesses testified that the decedent’s home was a mess with important documents as well as worthless scraps of paper piled around the house without any system or order.  

In the light of these facts the court ruled that the holographic will would not be probated.

The church appealed, challenging the order of the probate court. The court reversed the ruling of the probate court and ordered the will to be probated.

In re Estate of May, 220 N.W.2D 388 (S.D. App. 1974). 

A woman (Jane Doe) had been a teacher for many years and had amassed an estate of several million dollars. 

She was a long time member of a Baptist church in her community. 

However, she eventually joined a Presbyterian church, and attended services regularly until a broken hip reduced her mobility. She executed an estate plan in 1995 that left $1.5 million to her church. However, shortly before her death, Jane Doe gave one of her two daughters a holographic will that left everything to this daughter and nothing to the church. 

The church appealed, claiming that the holographic will and its $1.5 million distribution to the daughter were invalid. The appeals court denied the church’s’s petition to invalidate the holographic will.

The church appealed, challenging the order of the probate court. The court reversed the ruling of the probate court and ordered the will to be probated.

Burson v. Presbyterian Church, 2002 WL 498054 (Cal App. 2002). 

A woman’s holographic will stated that she “wanted to give my money to the Mother Church in Boston Massachusetts as it has been a great help to me.” 

The church submitted the will to the probate court, but this was opposed by the decedent’s heirs, who claimed that the will was not in proper form and that the decedent’s entire estate should be distributed to them. 

The court concluded:

First Church of Christ, Scientist v. Hutchings, 163 S.E.2d 178 (Va. 1968).

Holographic wills are recognized in the majority of states, with some variations, meaning they are widely recognized in the United States.

According to one court, holographic wills allows people who are unable or unwilling to hire an attorney to make a valid will in their own handwriting. (In re Estate of Teubert, 298 S.E.2d 456 (W. Va. 1982).) 

In many, if not most, cases, the person drafting a holographic will is attempting to avoid legal fees. But legal fees are a small price to pay to ensure that a will is drafted properly and will withstand legal challenge. Holographic wills often lead to ambiguities since the testator has no legal training or experience in drafting such documents.

The plethora of legal forms available online makes it tempting to create one’s own will.

But doing so can create unforeseen problems:

As the cases summarized above illustrate, holographic wills often prompt immediate legal challenge, embroiling the parties in costly and protracted litigation with no certain result. 

Another problem with holographic wills is that they often are discovered months or even years following the death of a testator, making it difficult to determine inevitable questions of priority involving multiple wills.

For all of these reasons, church leaders should discourage members from using holographic wills, even if legally valid under state law.