Aretha Franklin’s smiley face will: A landmark legal decision?

A court ruling in the USA confirmed that a handwritten note found underneath the late soul singer Aretha Franklin’s sofa could be used as her legal last will and testament. But could the outcome of this landmark case, in which a smiley face was taken to be a clear and official signature, have wider repercussions?

Vlad Macdonald-Munteanu, a Contentious Trusts & Probate Senior Associate Solicitor at the law firm Aaron & Partners, had this to say about the case:

Aretha Franklin, best known as the Queen of Soul, died in 2018, but her death and the subsequent discovery of two wills, sparked a fascinating dispute between her sons as to the division of her estate.

When Aretha died, it was assumed that she had not left a will, such that her four sons would equally share her estate. It has been reported that Aretha sought privacy in respect of her financial affairs, resisting the need to make a formal will, despite her latter years of ill health.

Some nine months after her death, two home made wills were found at her home in Detroit, Michigan.

One is dated 2010 and was found in a locked cabinet. It names her niece, Sabrina Owens and Theodore White, Aretha’s third eldest son, as the co-executors. It also makes her second and fourth sons’ (Kecalf and Edward Franklin) inheritance conditional on them taking business classes and getting a certificate or a degree, before they could benefit from her estate. Crucially, Theodore White and Sabrina Owens would have control over the management of the estate, including future royalties.

The other will, dated 2014, was found in a spiral noted been signed with smiley face. Kecalf and Edward submit that this is her last will, as it names Kecalf in place of Theodore as a co-executor, again with Sabrina Owens. Not only would Kecalf have control of the estate but the will also provides him (and his descendants) with Aretha’s gated mansion, valued at c.$1.2m in 2018. Neither would also have to comply with the condition in the 2010 will. Aretha also left her gowns to be auctioned or to be provided to the Smithsonian Institution.

While Aretha’s estate was at one point after her death estimated to be worth $80m, unpaid taxes and decreasing value of assets, according to the court paper work, has resulted in a net value of c.$6m by the date of trial.

In 2020, Sabrina Owens stepped away from her role as executor, after it became clear that there was a rift between Aretha’s sons. However, her three warring sons have all agreed that their eldest brother, Clarence, who lives in an assisted living facility and is under legal guardianship, is to receive a percentage of the estate irrespective of the outcome of the will challenge.

While it is commendable that the family were able to reach an agreement in respect of Clarence’s entitlement, as no wider agreement was reached, the matter reached trial, with the emotional toil and costs to follow.

During the trial, which took place in July 2023, the jury decided that the will from 2014, which is said to have been found underneath sofa cushions in the late singer’s house, should be used as her legal last will and testament.

One of the most interesting aspects of this case is that point mentioned previously that the 2014 will was actually signed with a smiley face. It was argued that this must only be a draft will for that reason, and that had Aretha intended for this to be a will, then more care would have been taken to make it an official document. In England & Wales, courts have held that an inky thumbprint or simply including your initials have been deemed to constitute signatures: they key question for the court has been was the smiley face intended to be a signature.

Interestingly, in the state of Detroit, will challenges are actually determined by a jury, whereas in England & Wales, ordinarily a judge makes the decision, and in this case the jury has decided that the 2014 should be treated as her final wishes.

Further, in the state of Detroit, home made wills are allowed, assuming certain conditions are met, which is to be contrasted with the majority of other states in the US, where such handwritten wills would have likely been inadmissible (i.e. ignored).

Unfortunately, this type of family dispute is a situation that I am increasingly seeing all too often, especially when it comes to home made wills. More often than not, someone wishing to make a will seeks professional assistance. This creates a paper trail and usually provides clear evidence from a professional, providing the parties with retrospective information about the circumstances and testator’s thinking.

This evidence is usually unavailable when it comes to home made wills: the vacuum of information rarely assists parties to form a clear view on what happened, decreasing the likelihood of the parties being able to reach an informed and commercial decision whether to pursue a claim. In turn, it increases the prospects of a dispute arising, as it has in this case.

This case again highlights the type of disputes which can arise when inheritance, a tricky topic at the best of times, is not openly discussed, and as best as possible, resolved, during a testator’s lifetime.

Read Aretha Franklin’s story here.

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