At the heart of all probate litigation is the quest to uncover the intentions of the deceased. That person is no longer around to answer any questions or clear up any confusion, and so probate courts rely on a written will. This is why courts are so strict about making sure a will meets all the formal requirements before they will accept it as valid. It's also why some of the trickiest issues involve wills that are not entirely clear about the person's intentions.
Recently, the administration of the estate of singer Aretha Franklin was thrown into turmoil by the purported discovery of handwritten documents that may show her intentions for how her estate should be divided.
When the great "Queen of Soul" died last year, family members said she left no will. As a result, the court was planning to divide her estate equally among her four sons, as dictated by state law. However, a family member recently submitted to the court handwritten notes found in a safe and under couch cushions at Franklin's home. If accepted as a valid will, the documents would make important changes in the distribution of the estate.
The notes are handwritten, and covered with notes, making them difficult to read and interpret. However, at least two of the singer's children have indicated that they accept them as valid.
Texas law accepts handwritten wills, also known as holographic wills, in certain circumstances. The advantage to drafting a holographic will is that it avoids the need for a lawyer and witnesses to draft and sign the document. However, the disadvantages are serious.
Without a lawyer to draft the will, it's easy to make a mistake, or to use imprecise language that will create problems in probate court. Without the formalities, it's hard for the court or the heirs to determine that the will is valid and genuinely represents the intentions of the deceased. And without a witness present to the signing of the will, it's hard to know the state of mind of the deceased at the time, or the circumstances involved.