By Gregg Greenberg

Featuring Asher Rubinstein, Partner, Gallet Dreyer & Berkey, LLP

First, it was the King of Rock and Roll’s family battling over the legitimacy of his daughter’s will. Now it’s the Queen of Soul’s kids clashing in a courtroom over handwritten wills found scattered around her house.

Seriously, and with all due R-E-S-P-E-C-T, will somebody explain why music’s royalty can’t pass down their estates without their heirs getting all shook up?

It’s barely been two months since a settlement was reached over the will and multimillion-dollar estate of Lisa Marie Presley, the late daughter of music legend Elvis Presley and his wife Priscilla. The settlement, for which terms were not disclosed, resolved a dispute Priscilla raised that challenged the validity of an amendment to Lisa Marie’s will.

Hot on the heels of the Presley family’s document drama, a similar quarrel is being decided this week in court regarding the last wishes of Aretha Franklin, who died from pancreatic cancer in August 2018.

Originally, it was thought the soul singer had left no will for her extensive estate, which included homes, cars, jewelry, and of course, fur coats. The lack of a will would have caused her property to be split evenly among her four sons.

But nine months later, handwritten wills were found in a cabinet and under a sofa cushion at her home in suburban Detroit. The discovery led to a schism among Franklin’s offspring, who took sides over which of the documents truly reflected her last testament.

The question will soon be decided by a six-person Michigan jury. Experts say, however, that it didn’t have to end up this way.

“Aretha was surrounded by lawyers throughout her career — when she made an album, when she toured, when she appeared in a movie — and while she hired an estate lawyer, the testimony showed that she did not finalize her will properly,” says Asher Rubinstein, partner at Gallet Dreyer & Berkey. “It looks, from her handwritten revisions and margin notes, that she wanted to make changes about beneficiaries and inheritance terms, but she passed away without properly finalizing and executing the document with witnesses, and now the court is left to determine the inheritance terms.”

Rubinstein says he’s seen many people over the years who knew they should create and store proper estate planning documents yet failed to do so. Even successful people who have accumulated significant assets put it off. People like Franklin, who had the talent and dedication to further her career but couldn’t properly deal with her own estate.

To a great extent, it’s a reluctance to come to terms with one’s own mortality, Rubinstein said.

“When someone avoids proper estate planning, or does it improperly or incompletely or with a lack of clarity such as Aretha’s handwritten changes, then the survivors, and the courts, are left wondering what the deceased person really wanted to happen with his or her assets,” he said. “Now you have an estate contest, including lawyers and a court which is left to decide what to do with an estate.”

Where There's a Will

If an older or ill person is making a change to a will, how should the change be made to ensure that it won’t be challenged later?

Rubinstein says he recently faced a similar issue with a woman who, although not in Aretha’s range, did acquire significant assets during her life. She had four children, only one of whom visited her and took an active role in helping her with her business and her assets. As a result, she left a will that passed her assets to that one son. Rubinstein said he anticipated an estate challenge by the three children who were not named, so his team proceeded very carefully.

“Her will included an ‘in terrorem’ clause, whereby anyone contesting the will would be cut off. We also videotaped her executing the will, and on the video, she explained her reasons for the estate decisions that she made favoring one beneficiary over others,” he said. “The video showed that she thought and spoke clearly and understood her actions.”

In addition to her will, Rubinstein had her sign an affidavit in which she explained the situation and her reasons for the way she left her assets. Finally, he obtained a letter from her physician that explained that she was mentally and physically sound and healthy.

As to the best place to store a will so it does not end up under a couch cushion or hidden in a cabinet, Gregory L. Matalon, partner at Capell Barnett Matalon & Schoenfeld LLP, says his clients often leave their original wills with him and he marks them as such. The client then takes a marked copy of the will home with them. In his view, this helps the family know who has the original document when the individual dies. By keeping it with the attorney, a disgruntled beneficiary cannot tear it up after death.

“It also prevents the risk of loss in the home as clients may move over time. Some clients wish to put it in a home safe or in a bank safe deposit box. If it is in a home safe, obviously, that safe may need to be cracked once the person dies to obtain access to the contents. If it is in a bank safe, a Court petition may be needed to access the box. These options may waste valuable time,” says Matalon.

Don't Say a Little Prayer, Type It

Each state has different laws regarding wills, with 16 states not allowing handwritten ones. In New York, for example, a valid will has to be typed, not handwritten, and changes must be typed as well.

“If someone were to take a proper will — typed, properly signed before witnesses and a notary — and make revisions or margin notes by hand, then that person may have inadvertently invalidated the original will because the handwritten notes demonstrate an intention to modify the terms of that original will,” Rubinstein said.

For this reason, when someone updates a will, it should not be done informally, such as by hand. People are hesitant to involve lawyers, overcomplicate matters and incur legal fees, but when dealing with something as important as a legacy, it should be done correctly, whether individuals are rock royalty or easy listeners.

“A good estate lawyer will make sure that the will, and subsequent changes and revisions, are done properly so that the terms are clear, the will remains valid, and your intentions are upheld,” Rubinstein said.