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21st August 2023

Eggshells and smiley faces: due execution of a Will

Sophia Smout
Sophia Smout
Trainee Solicitor

Following a five-year court battle, a jury in Michigan, USA, ruled in July this year that a Will handwritten by Aretha Franklin in 2014, and discovered in her property after her death in 2018, was a valid document. 

The ruling means that an earlier handwritten Will, also discovered after Franklin’s death and dating back to 2010, is superseded, as is the previously-held belief that she had died intestate, and results in a variety of consequences for the distribution of her estate. 

It also raises an interesting question about Will validity: if a document is described as containing ‘scribbles and hard-to-read passages’, and perhaps most intriguingly signed ‘with a smiley face’, then what else might also pass muster?

Whilst the validity of Franklin’s Will has been determined in accordance with US law, English case law has its own broad collection of Will validity disputes, many of which have surprising outcomes. Under s9(1) of the Wills Act 1837, a Will is only valid under English law if it is:

  • In writing
  • Signed by the maker (the ‘testator’), or by another at the testator’s direction and in their presence
  • Intended to be brought into effect by the testator’s signature; and
  • Signed by two independent people, who witnessed the testator’s signature.

Whilst these requirements might appear to be self-explanatory, case law shows that these requirements have, in fact, been interpreted in a variety of different ways. 

‘In writing’ has been held to mean handwriting as well as printing, writing in shorthand (Orrin v Orrin (1921)) and even writing in a private code (Kell v Charmer (1856)). Case law also suggests that there is no need for a Will to be written on paper – the cases of Re Murray (1963), Re Slavinskyj’s Estate (1989) and Hodson v Barnes (1926) show that a Will written on a cigarette packet, a wall and even an eggshell might still be considered valid.

Whilst the English courts don’t yet appear to have ruled on the validity of a smiley face as a signature, other cases have held that a stamp (Re Jenkins’ Goods (1863))initials (Reynolds v Reynolds (2005)), a fingerprint (Re Parsons (2002)), the wrong name (Re Clarke’s Goods (1858)) and an indecipherable scrawl (Re Kieran (1933)) can all constitute a valid signature for the testator – although a photocopy of an old signature was held to be insufficient in Lim v Thompson (2009)

Similarly, a Will need not be signed at the bottom of the document, but can instead be signed in the margins (Re Roberts Estate (1943)) and even on the envelope the Will is being kept in (Re Mann’s Goods (1942)). 

Whilst all of the above examples were eventually held by the courts to be valid, perhaps the key takeaway from all of them is that circumventing convention almost inevitably results in disputes. 

As Franklin’s case highlights, these can often be protracted and expensive and will leave at least one party disappointed. It is therefore highly advisable to seek legal advice when making a Will, to ensure that the Will is executed correctly and that your wishes, as testator, will be upheld.