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The Holidays And The Gift Of Family Harmony: The Importance Of Proper Estate Planning To Avoid Litigation After Your Passing

This year, when many will not be able to spend the holidays with loved ones because of COVID-19 fears or restrictions, the thoughts and memories of family gatherings at the holidays will likely bring both joy and sadness.  Not all families, however, associate the holidays with harmonious family gatherings.  In recent years, the litigators at our firm have seen an increasing amount of litigation cases resulting from poor or no estate planning.  Many times, the litigation is between siblings that have never gotten along, and once their parents pass away, they are left with no one to try and keep the peace between them.  Sometimes, however, the parents did something, or did not do something, that leads to disputes between family members at the passing of the second to die parent.

Many people forego proper estate planning because of the perceived cost of having an attorney prepare the documents, and the proliferation of online websites offering low-cost, do it yourself estate planning. Others simply don’t want to face their own mortality and engage in the process. This can, however, lead to costly litigation and unintended consequences.

Americans are fascinated with celebrities, and despite their fame and fortune, there are many examples of contested litigation after their passing. Some notable examples of these celebrity estate disputes over the years include: Casey Kasem, Anna Nicole Smith and the Estate of J. Howard Marshall II, Martin Luther King, Jr., Tom Clancy, James Brown, Tony Curtis, Jimi Hendrix, Prince, and. Kurt Cobain. More recently, disputes have arisen in the estate of the “Queen of Soul”, Aretha Franklin, whose situation provides a cautionary tale for those inclined to avoid estate planning, or to prepare documents themselves.

Everyone knows the iconic lyrics to Ms. Franklin’s song “Respect”: “What you want, baby, I got it. What you need, do you know I got it?…. I’m about to give you all of my money; and all I’m askin’ in return, honey….”  Unfortunately, the disposition of all of her money at her death is in limbo, and the Queen of Soul’s actual wishes may be known, but not followed.

On August 16, 2018, it appeared that Ms. Franklin died without a will to govern disposition of assets at her death.  Her four sons expected that her estate would be split evenly between each of them under Michigan’s laws of intestacy, which is the statutory disposition of assets when someone dies without a will.  In 2019, however, Ms. Franklin’s longtime attorneys disclosed the discovery and existence of several handwritten wills, found in one of her homes.  These documents were only signed by her, and contained notes in the margins, or delineations, and crossed out words and provisions.

This surprising turn of events shook up the administration of Ms. Franklin’s estate and pitted family against one another in court.  A Petition for Instructions on Validity and Admission of a Purported Holographic Will was filed on May 20, 2019 submitting three holographic wills to the probate court.[1]  This left it up to the probate court to decide whether these alleged handwritten wills, that contradicted each other, referred to in the legal community as “holographic wills”, are valid and control the disposition of Ms. Franklin’s estate.

In Maryland, the handwritten documents would be held invalid and Ms. Franklin’s estate would be distributed under the laws of intestacy and divided equally among her four sons.[2] This is because Maryland, unlike Michigan, only recognizes holographic wills under extremely limited circumstances, and offers none of the flexibility built into Ms. Franklins home state of Michigan. Maryland only recognizes holographic wills of a Maryland domiciled decedent the armed services and sign the holographic will outside of the U.S., D.C., or any U.S. territory.[3] Even if this limited exception is met, the holographic will is automatically voided one year after the testator is discharged from the armed forces, further limiting its control of the decedent’s estate.[4] To be valid under Maryland law a will must meet the following requirements to be valid: (1) In writing; (2) Signed by the testator, or by some other person for the testator, in the testator’s presence and by the testator’s express direction; and (3) Attested and signed by two or more credible witnesses in the presence of the testator.[5]  These statutory requirements are strictly construed.  For example, a will signed by the testator and witnessed by only one witness, even if that witness is a notary public, is invalid. The only exceptions under Maryland law are, as noted above a valid holographic will, or a will executed by the testator or testatrix in conformance of the laws of their prior place of domicile or where they were physically located when the will was signed.

Michigan, however, has a much broader definition and acceptance of holographic wills. Under Michigan law, such a document is valid “whether or not witnessed, if it is dated, and if the testator’s signature and the document’s material portions are in the testator’s handwriting.”[6] Under Michigan law, extrinsic evidence, outside the four corners of the document and parts of the document not in the testator’s handwriting, is also admissible to prove their intent. Under Maryland law, absent a latent ambiguity[7] in the document, extrinsic evidence is not admissible to prove the testator or testatrix’s intent.

Ms. Franklin, as could many others who die with no will or documents they prepared themselves, could have saved her family the time and expense of protracted probate and litigation if she had proper estate planning in place. The well-known idiom, you get what you pay for, certainly applies in this situation.  The one-size fits all product that has you input information into a computer and spits out a resulting document, may work in some instances, but the lack of personal touch, especially the ability to delve deeper into your specific family situation and needs, can result in a document that fails to address your needs. Similarly, trying to create a legal document by using a sample form you pulled up on the internet, may result in a document that is deemed invalid, or leads to more questions than answers.

The best way to try to ensure that your wishes are followed at your passing, and to try to promote family harmony, is to meet with an attorney and have proper estate planning in place.  Even if the family members don’t see eye to eye on matters, having documents in place that are clear and concise, and in accordance with Maryland law, can help mitigate potential issues and litigation.

[1] https://www.documentcloud.org/documents/6020063-TYPED-PAGES-Aretha-Franklin-Will.html.

[2] Md. Code Est. & Truss § 3-101 and 3-103.

[3] Md. Code Est. & Trusts § 4-103(a).

[4] Md. Code Est. & Trusts § 4-103(b).

[5]Md. Code Est. & Trusts § 4-102.

[6] http://www.legislature.mi.gov/(S(etgxewgcsge5jiql154uslgh))/mileg.aspx?page=getobject&objectname=mcl-700-2502.

[7] A latent ambiguity arises when the language at issue is clear on its face but upon introduction of extrinsic evidence, it reveals multiple interpretations. For example, a will that leaves assets to John Smith, could refer to multiple individuals known by the testator or testatrix, which would require introduction of extrinsic evidence to reveal this ambiguity and to help sort out their intent as to which John Smith is referred to in the document.

COVID-19 Updated Office Procedures – August 24, 2020

As the impact of COVID-19 continues to evolve, our firm continues to update its operating procedures to protect the health and safety of our employees, their families, our clients and friends.

As a preliminary matter, our firm remains fully operational as we continue to work hard to address your estate and business legal needs. Most employees are physically working full-time in the office, with a few working on a partially in-office/partially remote schedule.  Regardless, each member of our staff remains fully accessible via telephone, video conference and email.

In addition to the above, we are offering limited in-person meetings for clients on an as-needed basis. Although we are excited to show-off our new office building, protecting everyone’s health and safety is of utmost concern.  Therefore, below please find our procedures for an in-person meeting:

  • All in-person meetings must be scheduled in advance.
  • If you are presenting with any Covid-19 symptoms; if you have been exposed to anyone who has symptoms or has tested positive for Covid-19; or, if you have been to an area with a high rate of Covid-19 cases, we request that you delay any in-person meeting for at least two (2) weeks; or, in the alternative, schedule an online meeting or telephone conference.
  • All visitors to our office are required to wear a face mask and use the hand sanitizer station just inside our front door.
  • Please maintain social distance (of at least six feet).
  • Upon entering the building, you will be escorted to our conference room, as we would prefer the waiting room not be used at this time. Each conference room will be thoroughly cleaned and disinfected in between meetings.
  • Our restrooms are temporarily not available for use by visitors, so please plan accordingly.
  • Unfortunately, we will not be offering beverages to visitors at this time.

We hope you understand the need for taking the above precautions during this ongoing Covid-19 pandemic. Certainly, if you have any questions, please do not hesitate to contact a member of the Bagley & Rhody team.

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