Bar News - March 19, 2014
Elder, Estate Planning & Probate Law: Using an ‘Ethical Will’ in Contemporary Estate Planning Practice
By: Shenanne Tucker
The ethical will – a document in which a client, in his or her own voice, articulates for posterity specific values, experiences and personal philosophies – dates back to biblical times.
More recently, proponents of the ethical will have included holistic health advocates and estate planning attorneys who wish to offer a variety of services to their clients.
In their early use, ethical wills were drafted by fathers to their children and teachers to their pupils. Today, anyone can make an ethical will, which is also sometimes referred to as a “legacy letter” or “spiritual ethical will.” The document is prepared by or on behalf of a client to be read and passed on to loved ones, family and/or beneficiaries. It is, by its definition, a sort of “will” or document that becomes known to its audience usually at the death of its author.
In an ethical will, the testator writes what he intends to pass on with respect to personal history, faith, wisdom, dedication, love, experience, life work, forgiveness, and personal philosophy. It is an opportunity for a client to articulate his or her personal legacy.
Strictly speaking, an ethical will is not a legal document, meaning that it does not create enforceable distributions of traditional categories of property, either tangible or intangible. It does not contain the traditional operative terms of legacy and succession. It does not designate executors or trustees, and does not create beneficiaries in the manner the statutory or common law prescribes. Even though an ethical will is not in and of itself a legal document, the document nevertheless can have legal significance or legal benefit.
Including an ethical will can serve the basic objectives of a comprehensive estate plan. A comprehensive estate plan is one that couples a client’s personal goals and beliefs with asset preservation and distribution. The comprehensive estate plan seeks to serve the whole person, balancing concerns over beneficiary conflicts, the subjective feelings of friends and family, and not having an opportunity to tell loved ones what they meant in this lifetime.
Many estate planning decisions are made in relation to these concerns. Equal, but unfair distributions are requested; fiduciary designations or co-designations that make little sense other than to avoid creating family rifts; and the like. Undue influence exerted by family members who felt they should have been given more may give rise to improperly contrived documents going into effect.
If you are listening to your clients and are practicing law in this area, you have seen and heard of these forces at work. Inclusion of an ethical will component can avoid these untoward consequences by bringing the explanation, emotion, and balance into the comprehensive estate plan that is desired by clients.
Inclusion of a detailed ethical will component in a client’s estate planning documents could help avoid a pretermitted heir challenge. For example, a will must expressly disinherit certain heirs if these would-be beneficiaries are not entitled to a distribution of money or property. In these situations, an ethical will allows a client to express familial relationship, love, beliefs, and other personal aspects and experiences that shed light on why a particular beneficiary is entitled or not entitled to a distributive share of the estate.
As an illustration, imagine that a client makes a proclamation that there is no provision made in the distributive articles of a will or trust for her oldest daughter. The oldest daughter is well established, and the client believes that an equal share of the modest amounts that will be passed on through the client’s estate are insufficient to make a material difference to her oldest daughter’s situation, but would have an impact on the younger three children, who are separated from the oldest daughter in age by over a decade. In addition, the oldest daughter is too far away and is caring for an ailing spouse. The client does not want to appoint oldest daughter in a fiduciary capacity but instead desires to spare the daughter the added burden of fiduciary responsibility.
The client, a mother who naturally loves all her children, feels somewhat guilty and unsettled about leaving her oldest daughter nothing. Client wants it made known that she remembers the bond that she and her daughter developed, a bond maintained from birth and continuing throughout her lifetime. She wants it conveyed to her daughter that they not only had several physical features in common, they also had many habits, beliefs, and personality traits in common. The client also hopes to dispense with any bitterness or additional grief the oldest daughter may experience upon learning that she is receiving nothing from her mother, even though she may objectively know the reasons. The client can accomplish these goals by including these thoughts in an ethical will.
An ethical will may also arguably help establish the client’s competency and express changes in beliefs or experiences that may support changes in the estate planning documents’ distributive terms or fiduciary appointments. The trail of ethical wills signed by your client and maintained in your safe can act as a roadmap and foundation for the client’s changing plan provisions – one that is more compelling than just your file notes.
On the other hand, a lack of testamentary capacity may be revealed by an ethical will. An irrational sounding ethical will jotted out by a client to accompany an irrational new holographic plan, may be written evidence of a change in mental competency or delusion. Changes forced upon a client by an unduly influential relative without an appropriate corresponding ethical will component could potentially assist in demonstrating the existence of such improper influence.
Moreover, the inclusion of an ethical will is an opportunity for you to get to know your clients. The more you know your clients, the better you can assist them in identifying and achieving their goals.
You can incorporate the concept of the ethical will into the legal services you offer by introducing the topic to your clients. Ask whether they have heard of the ethical will and if they have thought about whether it might be right for them. Some clients are more practical and simplistic. Others will be grateful you brought up the topic and that you offer this level of service as part of your estate plans.
Shenanne Tucker practices with Bouchard, Kleinman & Wright in Manchester and Brentwood, NH. She has practiced estate planning, probate, elder law, commercial law, and litigation in Maine and New Hampshire since 2002.