Estate Planning, Therapeutic Jurisprudence, and Ethical Wills

Guest blogger Mark Glover, Assistant Professor of Law, University of Wyoming College of Law, talks about the therapeutic potential of estate planning and ethical wills…

Recognition of one’s mortality can be an unpleasant experience. For some, thinking about death can cause fear or anxiety, and for others, their own mortality is so unsettling that they try to avoid thinking about death altogether. It is with this state of mind that many estate-planning clients engage lawyers to draft wills, trusts, powers of attorney, advance health care directives, and other estate-planning documents. In short, the estate-planning client is preparing for her own death, and as a result she may be suffering the negative psychological and emotional consequences that accompany the acknowledgment that one’s life will eventually end.

Most lawyers who prepare estate plans and draft the associated documents are familiar with their clients’ potential death anxiety. They are also likely aware that the services they provide can be therapeutic. Many estate-planning clients experience relief and satisfaction from the knowledge that the have taken the necessary steps to ensure that their affairs are in order. As such, the estate-planning lawyer can be a therapeutic agent for her clients simply by doing her job well – by understanding her client’s objectives, by explaining the available options to her client, and by implementing an estate plan that achieves her client’s goals. The therapeutic role of the estate-planning lawyer is therefore founded upon the idea that the more satisfied the estate-planning client is with her preparation for death, the less fear and anxiety she will experience going forward.

This recognition of the therapeutic and antitherapeutic aspects of estate planning fits squarely within the realm of therapeutic jurisprudence. However, therapeutic jurisprudence directs us not just to acknowledge the estate-planning lawyer’s therapeutic potential, but to also consider what tools the estate-planning lawyer might have at her disposal to make the estate-planning experience more therapeutic. In this regard, an ethical will is one component of an estate plan that has obvious therapeutic potential. An ethical will is not a legal document that governs the disposition of the client’s property or that addresses other typical estate-planning concerns. Instead, an ethical will is a document through which the client can pass on intangible wealth, such as memories, thoughts, values, and ideas, to friends and family members. An ethical will provides the estate-planning client the opportunity to communicate thoughts and feelings that she may have avoided communicating during life. This act of communication serves as a form of self-expression that can give the client solace during the time in which she is confronting the inevitability of death.

Because ethical wills are unlike conventional estate-planning documents that contain standard sections and provisions, they are not easily drafted using model or precedent documents. Indeed, an ethical will can take on many different forms depending upon how the client is most comfortable sharing her personal thoughts and feelings. For instance, an ethical will can be drafted as a letter to friends and family or as statement within a conventional will, or an ethical will can take the form of a video or audio recording. To facilitate the client’s preparation of an ethical will, the estate-planning lawyer can ask the client pointed questions that are designed to cause the client to reflect upon her life.   For example, the lawyer could ask the client to think about the most important lesson that she has learned or the biggest mistake that she has made.  By prompting the client in this way, the estate-planning lawyer can encourage the client to contemplate the important things in her life in an organized way.  Click here for practical advice for assisting an estate-planning client in the preparation of an ethical will.

Ethical wills can be a particularly therapeutic aspect of the estate-planning experience because their therapeutic potential is not limited to the estate-planning client. Indeed, in addition to being a self-expressive outlet for the estate-planning client, an ethical will can also be a source of comfort for the client’s family after she dies. The surviving family of the estate-planning client is left to deal with the client’s affairs after her death. Because this experience focuses on both death and money, familial conflict can arise. An ethical will can be a calming force for the family of the estate-planning client during this time. It can provide assurance that the client’s chosen estate plan was the result of considered decisions, and it can cause the family to reflect on issues that are perhaps more important than money and familial conflict, such as their relationship with the deceased client and the future of their family. An ethical will can therefore be a source of comfort for both the estate-planning client and her family.

In sum, because the estate-planning process requires the client to confront her own mortality, the preparation and implementation of an estate plan can be unsettling. Therapeutic jurisprudence suggests that the estate-planning lawyer should be aware of her client’s potential fears and anxieties regarding death and should consider ways of alleviating those concerns. Most estate-planning lawyers likely already do this to a certain degree.   However, ethical wills are another tool at the estate-planning lawyer’s disposal that she should consider integrating into the estate-planning process.

Mark Glover is Assistant Professor of Law, University of Wyoming College of Law. His scholarship may be viewed on SSRN 

Read more about estate planning through the lens of therapeutic jurisprudence:

• Mark Glover, A Therapeutic Jurisprudential Framework of Estate Planning, 35 Seattle University Law Review 427 (2012)
• Mark Glover, The Therapeutic Function of Testamentary Formality, 61 University of Kansas Law Review 139 (2012)
• Mark Glover, The Heiligenstadt Testament: Beethoven’s Therapeutic Estate Planning Experience, Arizona State Law Journal Online (April 30, 2012)