LIVE BY DESIGN | Will found under Aretha Franklin’s couch cushion declared valid. Where’s yours?

When US singer Aretha Franklin died on 18 August 2018, almost five years ago, her four sons thought she had died “intestate”; that is, she died without leaving a will. She wasn’t married then, so according to US law, her assets would be divided equally between the four sons. Then, a niece found a signed will dated 2010 inside a locked cabinet at her aunt’s home.

Shortly afterwards, another signed will, dated 2014, was found under the couch cushion. Both wills provide for the sons to share income from music copyright, but the couch will favours Aretha’s youngest son as it leaves to him and his children the principal family home.

On Tuesday, 11 July, a jury declared the couch will to be valid as representing the last true wishes of Aretha. It is made up of four pages, written in a spiral notebook.

That’s what many of us don’t understand. We think we need to make an appointment with a lawyer and have a document typed up, signed, and even stamped. That’s not true.

What’s needed for a will to be recognised in South Africa:
  • You can make a will any time after you’ve become 16 years old.
  • Your wishes are written up – whether hand-written or typed.
  • You sign in the presence of two witnesses (who can vouch that you were sound of mind and under no duress)
  • The two witnesses must NOT be beneficiaries of the will.

When there’s more than one will circulating, it’s usually the one with the most recent date that is taken as the one to be followed.

Many people title their will as “The is the Last Will and Testament of XXXXXX”. And underneath, they include words to the effect that this will supersede all earlier wills, making them invalid.

Because Aretha’s recently discovered will favoured her youngest son, that caused a rift between the brothers. It was reported that they didn’t hug, talk or make eye contact at the court, as there was a coolness between them. Initially valued at about $80 million, the estate is now less than $6m. Its value dwindled after paying taxes and five years of legal bills.

Mapi and I try to encourage people to draft their wills and to talk about them – it can be emotionally helpful for the contents to be known. It means there’s a chance for conversations to take place and for there to be an understanding of the person’s thinking – even if you may disagree with it.

My mother had three children. She made her last will some five years before she died. She was concerned with fairness and “making right”, and she chose not to leave her children equal shares. She had her reasons, which she shared, and there was time to talk about them. Talk about ruling from the grave?

My mother even left one family member an amount of money with the proviso that the person would only receive it if that person had repaid a particular debt owed to another family member. If that had not happened by her death, that designated inheritance money would go to the person who was owed money. My mother’s last act of “making right”!

What was wonderful about my mother’s intervention was that it was transparent. We three siblings had photocopies of my mother’s will years before she died. It was the best my mother could do for things to be harmonious.

Most South Africans don’t have a will. Perhaps people think they have so little for others to inherit. But people’s feelings about inheritance are often not about value but about love and about their place in the family being validated. I remember a friend telling me that her mother always favoured her younger sister and that the final hurt was that her mother left her engagement and wedding ring to her sister – whereas she felt as the eldest sister, it should have been left to her.

Other people don’t want to make wills, as though it’s flirting with death, especially when they’re sick. Do they somehow think that they’ll ward off death coming knocking at their door if they avoid making a will?

My late husband died three and a half years after being diagnosed with terminal cancer. He made his will the week in which he died. By then, his signature was shaky – it took more than three months for the bank to decide to accept it. And as he signed, in the presence of two witnesses who were not beneficiaries, the air was thick with the heaviness of sadness. It was awful.

If you die in South Africa without having a valid will, the decisions about the deceased estate will be handled by the Master of the High Court. We have an Intestate Succession Act (Act 81 of 1987). It is a great document, and there are guidelines that ensure that customary unions will be recognised, as well as children born out of wedlock.

In a week of Stage 6 load shedding and more than three days without municipal water supply, it feels good to remember some of South Africa’s achievements. And this is one of them, a process to ensure fairness in a country where most people still die intestate.

By the way, if you die intestate, you will be in the good company of Bob Marley, Prince, Pablo Picasso and even Abraham Lincoln.

But as the Queen of Soul’s story illustrates, families can be torn apart by disputes about wills and run up legal bills.

Thinking about exactly what you want to put in your will – that’s the hard emotional work. But the process of drawing up a valid will is easy. Do it soonest.

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