According to the website legal.dictionary.thefreedefinition.com, a will is:
"a written document which leaves the estate of the person who signed the will to named persons or entities (beneficiaries, legatees, divisees) including portions or percentages of the estate, specific gifts, creation of trusts for management and future distribution of all or a portion of the estate (a testamentary trust). A will usually names an executor (and possibly substitute executors) to manage the estate, states the authority and obligations of the executor in the management and distribution of the estate, sometimes gives funeral and/or burial instructions, nominates guardians of minor children, and spells out other terms. To be valid the will must be signed by the person who made it (testator), be dated (but an incorrect date will not invalidate the will) and witnessed by two people (except in Vermont which requires three). In some states the witnesses must be disinterested, or in some states, a gift to a witness is void, but the will is valid. A will totally in the handwriting of the testator, signed and dated (a "holographic will") but without witnesses, is valid in many, but not all, states. If the will (also called a Last Will and Testament) is still in force at the time of the death of the testator (will writer), and there is a substantial estate and/or real estate, then the will must be probated (approved by the court, managed, and distributed by the executor under court supervision.) If there is no executor, named or the executor is dead or unable or unwilling to serve, an administrator ("with will annexed") will be appointed by the court. A written amendment or addition to a will is called a "codicil" and must be signed, dated and witnessed just as is a will, and must refer to the original will it amends. If there is no estate, including the situation in which the assets have all been placed in a trust, then the will need not be probated."http://legal-dictionary.thefreedictionary.com/will
After reading this definition, it is interesting that it was stated that the date that the will was signed, if wrong, will not invalidate a will. In regards to Michael's situation, Michael was not in L.A. when the will was process, however, because he was not there, there was no way he would have signed the will. He has to be physically there to sign the will for the will to be valid. The definition stated that there should be witnesses of the tester, in this case, Michael, signing the will which would prove that the will was indeed valid. The issue is, if Michael was not there to sign the will and there has been, from what I understand, no witnesses of Michael signing the 2002 will, then the will should be seen as invalid.
In the state of California, in which the supposed will of Michael's was done, there is a clearer definition of what is a will -
Your will is a legal document in which you give certain instructions to be carried out after your death. For example, you may direct the distribution of your assets (your money and property), and give your choice of guardians for your children. It becomes irrevocable when you die. In your will, you can name:
- Your beneficiaries. You may name beneficiaries (family members, friends, spouse, domestic partner or charitable organizations, for example) to receive your assets according to the instructions in your will. You may list specific gifts, such as jewelry or a certain sum of money, to certain beneficiaries, and you should direct what should be done with all remaining assets (any assets that your will does not dispose of by specific gift).
- A guardian for your minor children. You may nominate a person to be responsible for your child’s personal care if you and your spouse die before the child turns 18. You may also name a guardian—who may or may not be the same person—to be responsible for managing any assets given to the child, until he or she is 18 years old.
Keep in mind that a will is just part of the estate planning process. And whether your estate is large or small, you probably need an estate plan.
- An executor. You may nominate a person or institution to collect and manage your assets, pay any debts, expenses and taxes that might be due, and then, with the court’s approval, distribute your assets to your beneficiaries according to the instructions in your will. Your executor serves a very important role and has significant responsibilities. It can be a time-consuming job. You should choose your executor carefully.
While I was reading this, I kept on thinking about the last sentence when it discussed about the executor part - "you should choose your executor carefully." Something tells me that Michael never chose the executors, John McClain and John Branca to be executors of his 2002 will. Michael did other wills in the 1980s and the 1990s but at that time, Michael probably had issues with one of those executors (Branca) but did not seem to have that much of an issue to make him an executor for his wills that were done in those two decades.
As I am reading the website from which this information came from, I read something that caught my eye -
"6. Can I Change or Revoke My Will? Yes. You should review your will periodically. If it is not up to date when you die, your estate may not be distributed as you wish."
Some lawyers who work in the estate planning area are “certified specialists in estate planning, trust and probate law.” This means that they have met standards for certification set by the State Bar. (Not all lawyers who have experience in estate planning, however, seek such certification.)
So, let's see what type of lawyer John Branca really is, not by what I stated, but what lawyer he truly is to see if he is qualified to be an executor of an Estate, from his official website -
"As one of the preeminent entertainment and corporate lawyers in the US today, John Branca is one of the few attorneys to be included in every edition of Best Lawyers in America. Branca is also included on virtually every other list of premier lawyers in the world and the entertainment industry. A partner in the law firm of Ziffren Brittenham LLP, Branca has represented an unprecedented 29 members of the Rock and Roll Hall of Fame, including Aerosmith, The Beach Boys, The Bee Gees, The Doors, Fleetwood Mac, Berry Gordy, Michael Jackson, Leiber and Stoller, The Rolling Stones, and Carlos Santana, among others. Primarily focused on the music and live appearance industries, Branca has also facilitated and initiated game-changing deals involving the purchase and sale of some of the largest recorded assets and music publishing catalogs in history. Passionate about helping artists get a fair shake in the music industry, he has helped songwriters regain copyrights of their songs as well as securing lost royalties for artists. Branca is a board member of many charities, including serving as Chair Emeritus of Musicares, which provides help to members of the music community needing treatment for drug and alcohol addiction, and assistance for other financial, medical and personal crises."
Noticed what I made bold - 1. he is an entertainment and corporate lawyer 2. his primary focus is on the music and live performances industries 3. he made game changing deals in regards to purchasing and sales of record assets (hmmm, Michael???) and music publishing catalogs (the Beatles/ATV/Sony BMG catalog).
Then, I read Branca's biography and my heart sank a little -
"He joined the law firm of Kindel & Anderson as an estate planner, until he read an Elton John profile in Time Magazine which turned him on to the field of entertainment law."Branca was going to be an estate planner but decided to become an entertainment lawyer instead. Interesting. So, Branca feels that he can be an executor of the Estate because he was originally going to be an estate planner. So, when Michael did those wills in the 1980s and 1990s, Branca was the executor to those wills. However, he is technically not an Estate planner nor an Estate lawyer. Going to school to be one and actually being one are two different things. Branca is probably knowledgeable about Estate planning but according to the information I posted above, some Estate planners are certified and met the standards by the state bar to have certification. Also, he would actually have to work as an Estate planner for experience reasons. There is no proof that Branca is certified in that area of law. Branca and his usual high horse effect. Not only did he told Katherine Jackson, according to the letter that was posted on this blog that he is "Michael Jackson now" but he thinks that because he originally was going to be an estate planner but decided to be an entertainment lawyer, he could be an executor to Michael's Estate. Why didn't he get certification?
As for John McClain, he is a music executive who founded A & M Records, helped launched Janet Jackson's career into worldwide success and he runs Interscope Records. On top of that, he is friends with the Jackson family, in particular his brothers, sans Randy. I read an article on John McClain from the L.A. Times and here is what I found -
"McClain, who launched his executive career at A & M in the early 1980s and went on to work at Interscope Records, has played a key role in pushing the boundaries of mainstream pop by transforming underground rappers, gospel choirs, R & B singers and producers into international stars."
No mentioning of McClain going to college or having a college degree. Also, no mention of McClain having any experiences in the legal world.
"His father, a notorious Los Angeles figure who rubbed shoulders with gangster Benjamin "Bugsy" Siegel."His father knew gangsters. McClain must have had an very interesting childhood.
"McClain, also a martial arts expert, broke into the record business as the musical director for R & B act the Silvers and soon became a session guitarist on studio recordings for such acts as Gladys Knight, Diana Ross, Lionel Richie and Shalimar. In 1984, McClain took a job as the director of black music at A & M, where he tapped the young production team of Jimmy Jam and Terry Lewis to work on a project with Janet Jackson--who, at the time, had practically been written off by the label. McClain's behind-the-scenes maneuvering led to Jackson, Jam and Lewis turning out Jackson's first blockbuster, "Control.""
So, for the most part, McClain is a music producer, executive, musician, manager. No mentioning of any type of skills that would qualify him to be an executor of the Estate of Michael Jackson.
There is an extensive blog entry about McClain that I have read and it stated very interesting things about him. McClain has rubbed shoulders with music bully Suge Knight and has a Dr. Jerkyll/Mr. Hyde personality. I am not implying that he has some sort of a personality disorder but he is the type of individual that once crossed becomes vindictive and neurotic.
The blog post was eye-opening for the most part and it is true: there is not a lot of information on Mr. McClain. I have tried searching and searching and all I can find is an article and a blog post about him. It is clear that McClain is not a lawyer so he does not remotely fits the qualifications to be an executor to run the Estate, if being a lawyer requires one to be an executor of an Estate.
I was curious and I wanted to know, knowing the facts about both executors, if there are indeed qualifications for them to be executors of the Michael Jackson Estate.
In basic terms, an executor -
"It's both an honor and a burden to serve as someone's executor. An executor is entrusted with responsibility for winding up someone's earthly affairs -- a big or little task, depending on the situation. Essentially, an executor is charged with protecting a deceased person's property until all debts and taxes have been paid, and seeing that what's left is transferred to the people who are entitled to it. The law does not require an executor (also called a personal representative) to be a legal or financial expert, but it does require the highest degree of honesty, impartiality, and diligence. This is called a "fiduciary duty" -- the duty to act with scrupulous good faith and honesty on behalf of someone else."In order words, an executor does not require to be an legal expert, i.e. a lawyer, which would make sense why McClain, with no experience in law and no college degree, can be an executor; and is charged with getting rid of debt of the deceased and pay the taxes of the deceased. The other part of the definition was interesting: the highest degree of honesty. The executors knew that three of the songs from that horrible Michael CD were not his vocals and were dishonest when they stated that they will look into it and never did. The executors were impartial when they stated that certain members of Michael's own family were not allow to see their mother, Michael's children and the rest of their family. The issue with the family was a personal manner that was irrelevant in regards to the validity of the will and their duties as executors. Finally, the will's authenticity is in question which makes the executors dishonest when instead of proving that Michael sign the will, they started to spin the whole situation and after the mess with the family exploded, the executors went to one of their mouthpieces, forbes.com, to state that Michael signed the will in L.A. but the date is wrong. After three years of members of the Jacksons questioning the validity of the will, the executors decided to give an answer that is dishonest.
I kept on looking for the qualifications that someone would need to be an executor in the state of California. Now, the jurisdiction is not Los Angeles but in other parts of the state however it is the best that I could find.
"Legal Qualifications for an Executor. In order for person to be legally qualified to be your executor they must be:
1. Over the age of 182. Not be subject to a conservatorship or otherwise unfit (must be mentally competent)3. They must not have committed fraud or waste or otherwise wrongfully neglected the estate4. Be a US resident (if you would like to name someone who is not a US resident, let us know and we will discuss the options with you)5. Not be a business partner, if a another person with an interest in the business objects."
Number 3 and number 5 - when I read it I knew that those two men cannot be remotely qualified to be the executors of Michael's estate. Branca was, in a lot of ways, Michael's business partner so he knew his business affairs and had an interest in the business objects, i.e. the Beatles/ATV Catalog. Number 3 isn't rocket science, they have committed fraud with releasing an album with fake vocals of Michael and that will that is suspicious. However, in terms of experience and education, a person does not need to have either of those things to be an executor. Basically, anyone that the deceased put in the will that they believed are honest, trustworthy and reliable can be executors. That is a bummer because Michael stated that in the music business, no one is trustworthy. No matter how one slice it, screwed is screwed and poor Michael was screwed badly. I hope there is some way the Jacksons that care do anything in their power to replace these executors.
Articles/Blog Post/Website - "Co-Demon of the Michael Jackson Estate Revealed: John McClain"
Legal Definition of a Will
"Do I Need a Will"
"Back in the Club"
"What Does an Executor Do?"
"How do I Choose an Executor?"