Daniel Nan­coo

Aretha Franklin may have been the Queen of Soul, but she cer­tain­ly was not the Queen of record-keep­ing. Her fail­ure to en­sure that her last will and tes­ta­ment was prop­er­ly record­ed and safe­ly stored, re­sult­ed in a five-year long dis­pute over her vast es­tate among her chil­dren af­ter her death in 2018 .

When Aretha died from can­cer in Au­gust 2018, it was wide­ly be­lieved by fam­i­ly mem­bers that she had not pre­pared a will dic­tat­ing how her as­sets of rough­ly US$6,000,000 ($40,000,000) in re­al es­tate, cash, gold records and furs, or to her mu­sic copy­rights would be man­aged.

Nine months lat­er, her niece and ex­ecu­tor of Aretha’s es­tate at the time dis­cov­ered two sep­a­rate sets of hand­writ­ten doc­u­ments at the singer’s home in De­troit. One ver­sion, dat­ed June 2010, was found in­side a locked desk draw­er, along with record con­tracts and oth­er doc­u­ments.

A new­er ver­sion, from March 2014, was found with­in a spi­ral note­book con­tain­ing Franklin’s doo­dles wedged be­neath the liv­ing room so­fa cush­ions. A Michi­gan ju­ry would sub­se­quent­ly de­ter­mine that the 2014 will found lodged be­tween the so­fa cush­ions was a valid will, su­per­sed­ing the 2010 will.

Like the ever-chang­ing times, Aretha’s mul­ti­ple wills de­ba­cle is a cau­tion­ary tale for those per­sons with­out a will or a plan for their as­sets hav­ing passed on. When it comes to plan­ning for the fu­ture, a will is one of the most cru­cial doc­u­ments one can make.

A will or last tes­ta­ment is a legal­ly pre­pared and bind­ing doc­u­ment that records your in­ten­tions re­gard­ing the dis­tri­b­u­tion of your as­sets and wealth up­on death. This al­lows you to have some mea­sure of con­trol over your es­tate’s dis­tri­b­u­tion af­ter your death and en­sures that those who you de­sire to in­her­it a share of your es­tate do in­deed re­ceive that share. It can be es­pe­cial­ly im­por­tant for those per­sons with mi­nor chil­dren as the will al­lows you to ap­point a guardian of your choice to take care of your chil­dren in the event that you pass.

How­ev­er, there are nu­mer­ous ex­am­ples where doc­u­ments and records that were not pre­pared by an at­tor­ney have been con­sid­ered a court of law to be legal­ly bind­ing, much like Aretha’s case. So, what is the val­ue in hav­ing an at­tor­ney pre­pare a will?

The pri­ma­ry ben­e­fit is the as­sur­ance that the will shall be legal­ly valid and en­force­able.

Our Wills and Pro­bate Act sets out the re­quire­ments that must be ful­filled for a will to be valid:

• The will must be in writ­ing;

• The will must be made by some­one who is 21 years of age or old­er;

• The will must be ei­ther signed at the foot or end by the tes­ta­tor or by some oth­er per­son in his pres­ence and by his di­rec­tion;

• Such sig­na­ture must be made or ac­knowl­edged by the tes­ta­tor in the pres­ence of two or more wit­ness­es of ei­ther sex com­pe­tent to at­test a will ac­cord­ing to the law of Eng­land, present at the same time; and

• Such wit­ness­es must at­test and sub­scribe the will in the pres­ence of the tes­ta­tor and of each oth­er, but no form of at­tes­ta­tion shall be nec­es­sary.

An at­tor­ney who spe­cialis­es in wills and pro­bate can en­sure that your will meets those re­quire­ments which, in turn, re­duces the risk of the will be­ing con­test­ed or even de­clared in­valid af­ter your death. If there are mul­ti­ple prop­er­ties in­volved, an at­tor­ney can al­so ad­vise as to the best way to dis­trib­ute your as­sets to lim­it the tax im­pli­ca­tions.

Ul­ti­mate­ly, us­ing an at­tor­ney will save your es­tate and your ben­e­fi­cia­ries time and mon­ey by avoid­ing po­ten­tial dis­putes over the will, de­lays in pro­bat­ing the will and any ad­di­tion­al le­gal costs. An at­tor­ney will be able to iden­ti­fy all of the prop­er­ty and in­ter­ests that make up your es­tate and en­sure that noth­ing is for­got­ten, cre­at­ing a com­pre­hen­sive will that ac­cu­rate­ly re­flects your es­tate and your wish­es.

An at­tor­ney will al­so en­sure that the will is writ­ten in the clear­est terms with no room for mis­un­der­stand­ing. Even the most un­com­pli­cat­ed wills can be mis­un­der­stood, lead­ing to un­nec­es­sary con­tention. In­deed, the Eng­lish case of Thorn v Dick­ens [1906] WN 54 dealt with one of the short­est wills ever record­ed where a man sim­ply said, “All to moth­er.” While that seems in­dis­putable, it was con­test­ed by the man’s wife on the ground that the man some­times re­ferred to his wife as “Moth­er,” since she was the moth­er of his chil­dren. This demon­strates how a poor­ly draft­ed will can end up be­ing cost­ly in the long run with po­ten­tial dis­putes or de­lays in pro­bat­ing the will.

An­oth­er im­por­tant de­ci­sion when con­tem­plat­ing a will is de­cid­ing who will be the ex­ecu­tor of the will. The ex­ecu­tor is es­sen­tial­ly the per­son you ap­point to car­ry the in­struc­tions you have pro­vid­ed in the will. The spe­cif­ic re­spon­si­bil­i­ties of an ex­ecu­tor in­clude pay­ing any debts you may still owe af­ter your pass­ing and dis­trib­ut­ing your as­sets as per your wish­es.

Any­one over 18 can be an ex­ecu­tor, and while a ben­e­fi­cia­ry can act as the ex­ecu­tor, it’s worth re­mem­ber­ing that an ex­ecu­tor ought not be one of the of­fi­cial wit­ness­es to your will. It may be use­ful to ap­point an ex­ecu­tor with pro­fes­sion­al, spe­cial­ist knowl­edge to avoid any er­rors as per­sons can be held per­son­al­ly (and fi­nan­cial­ly) li­able for any er­rors made in dis­trib­ut­ing the es­tate.

How­ev­er, what hap­pens if a per­son dies with­out hav­ing a will? The per­son is deemed to have passed in­tes­tate. In these sit­u­a­tions, cer­tain per­sons (as gov­erned by law) are en­ti­tled to ap­ply to the Pro­bate Reg­istry of the Supreme Court for what is known as “let­ters of ad­min­is­tra­tion”.

Sim­ply put, the let­ters of ad­min­is­tra­tion are a court-is­sued doc­u­ment that is used in place of a will which gives some­one the au­thor­i­ty to act as the es­tate ad­min­is­tra­tor. The ad­min­is­tra­tor can then ac­cess and man­age the late per­son’s as­sets as an ex­ecu­tor of a will would do.

The dif­fer­ence be­tween the ad­min­is­tra­tor and an ex­ecu­tor is that the ex­ecu­tor fol­lows the wish­es of the per­son who made the will while the ad­min­is­tra­tor is con­strained to dis­trib­ute the es­tate in ac­cor­dance with cer­tain de­fault le­gal pro­vi­sions that ap­ply in the ab­sence of a will.

The per­sons who are en­ti­tled to ap­ply for let­ters of ad­min­is­tra­tion are pri­ori­tised by law as:

(i) the sur­viv­ing spouse of the de­ceased – this in­cludes a spouse who is sep­a­rat­ed (but not di­vorced) from the de­ceased;

(ii) the chil­dren of the de­ceased, in­clud­ing adopt­ed chil­dren;

(iii) the grand­chil­dren of the de­ceased; then

(iv) the great-grand chil­dren of the de­ceased. If the de­ceased had no spous­es or chil­dren, the par­ents can ap­ply, fol­lowed by the broth­ers and sis­ters, then by the un­cles and aunts and then the nephews or nieces of the de­ceased may ap­ply for the let­ters of ad­min­is­tra­tion.

If the de­ceased had a sur­viv­ing spouse and no chil­dren, the es­tate will be dis­trib­uted to the spouse. If the de­ceased has a sur­viv­ing spouse and at least one sur­viv­ing child, then half of the es­tate goes to the sur­viv­ing spouse and the oth­er half will be dis­trib­uted to the child or chil­dren in equal amounts. If the de­ceased had no sur­viv­ing spouse, chil­dren or co­hab­i­tants (com­mon-law re­la­tion­ship), the es­tate will be di­vid­ed equal­ly among the de­ceased’s par­ents. If no par­ents, then the es­tate will be di­vid­ed equal­ly among the de­ceased’s sib­lings. If no sib­lings, the es­tate is di­vid­ed equal­ly among the de­ceased half-sib­lings.

The or­der of pri­or­i­ty for the en­ti­tle­ment of the es­tate then is:

(i) grand­par­ents in equal shares;

(ii) aunts and un­cles in equal shares;

(iii) half aunts and half un­cles in equal shares. If there are no sur­viv­ing rel­a­tives, the es­tate will then be claimed by the State. This un­cer­tain­ty as to who may in­her­it your as­sets if you do not have will is even more in­cen­tive to en­sure that you do have a will.

Most per­sons can be averse to the idea of hav­ing a will pre­pared, dis­cour­aged by the time and cost in­volved. How­ev­er, when one con­sid­ers the time and mon­ey that is saved in the long run by hav­ing a valid will which clear­ly out­lines your wish­es, the val­ue of that will vast­ly out­weighs the costs of not hav­ing a will, not to men­tion the un­cer­tain­ty of not know­ing how your as­sets will be dis­trib­uted or not know­ing whether your fam­i­ly will be ad­e­quate­ly pro­vid­ed for. So r-e-s-p-e-c-t the last will and tes­ta­ment.

Daniel Nan­coo is an As­so­ciate at M Hamel-Smith & Co. He can be reached at mhs@trinidad­law.com Dis­claimer: This col­umn con­tains gen­er­al in­for­ma­tion on le­gal top­ics and does not con­sti­tute le­gal ad­vice