New and Improved Testaments for Estate Planning Documents

• Publication year: 2003
• Pages: 73
• Citation: Vol. 32 No. 12 Pg. 73

32 Colo.Law. 73 Colorado Lawyer 2003.

2003, December, Pg. 73. New and Improved Testaments for Estate Planning Documents

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73

Vol. 32, No. 12, Pg. 73

The Colorado Lawyer
December 2003
Vol. 32, No. 12 [Page 73]

Specialty Law Columns
Estate and Trust Forum
New and Improved Testaments for Estate Planning Documents
by Constance D. Smith

This column is sponsored by the CBA Trust and Estate Section The column focuses on trusts and estate law topics, including estate and trust planning and administration, elder law probate litigation, guardianships and conservatorships, and tax planning

Column Editor:

David W. Kirch, of David W. Kirch, P.C., Aurora - (303) 671-7726, dkirch@qwest.net

Constance D. Smith
About The Author:

This month's article was written by Constance D. Smith, Denver, a senior associate at Lentz, Evans and King P.C. - (303) 861-4154, cdsmith@ lektax.com. She is a board member and past president of the Christian Legal Society of Metro Denver.

Documenting a person's values, family concerns, and personal preferences as part of his or her estate planning documents may be the most ethical and efficient drafting method to address the legal ramifications and family dynamics of an estate plan.

It has been said that the will an attorney drafts contains the last words a client's family will ever hear from the deceased. Nevertheless, over the past several decades, individual testaments have gone out of fashion.1 Although a will used to be called a person's "Last Will and Testament," for purposes of this article, testaments refer only to the personal written statements an individual makes in the context of estate planning.

It is not uncommon for attorneys to focus on the legal requirements and tax implications of wills and other estate planning documents, without addressing the family's emotional needs. Attorneys may draft and redraft, often for hours, so that their words in a document are legally precise. Nonetheless, the final product is likely to fail to incorporate any of the client's personal "words of wisdom." It is worth evaluating whether estate planning documents articulate what the client would want said to his or her grieving family and friends, and whether the legal documents are likely to soothe or aggravate the survivors' pain.

Most attorneys have never considered including a client's personal testament in the wills they draft. In recent times, the closest drafting to a testament this author has seen includes the disowning of a child "for reasons he knows well" and the addition of non-distribution provisions for a child "who commits a felony or refuses drug testing." A common misconception is that testaments are only religious statements of faith. However, testaments can address much more and need not be faith-related.

This article examines the use of personal testaments to express or document the client's values, family concerns or history, and individual preferences. It discusses reasons to use them, roles of both attorneys and clients in drafting of such statements, and the mechanics of placing such statements in various estate planning documents.

Testaments from Clients' Perspective

Many estate planners have found that, in addition to understanding their clients' assets and tax situations, it is important to get to know their clients' personalities, motivations, and family dynamics. Time spent getting to know the clients helps them feel understood and valued. It also gives clients confidence that the attorney will draft documents that accomplish and integrate their personal and financial goals, taking into account unique family circumstances. Such attorney-client relationships become an intangible asset that builds client loyalty. However, when the clients leave the meeting, how much of this personal information is incorporated into a standard estate planning form document?

Obviously, clients should not have free reign with their legal documents. Clients come to an attorney knowing that they need help with legal technicalities and formalities - and that is what attorneys are trained to do. Nevertheless, through testaments, clients may express themselves directly to family members or other significant persons in a will or other document without diminishing the legal purpose and effectiveness.

If an attorney understands the clients' motivations and intentions, he or she can adjust the wording of a form document, if needed, to accommodate and not conflict with the clients' statements, while maintaining the legal provisions necessary for enforceability. Additionally, such personal information can assist the fiduciaries in administering the document when a creator is no longer available to interpret applications to unexpected future situations.

Client Participation

Not every client will be interested in paying for the extra time needed for drafting a testament or putting personal matters in writing. Nevertheless, many clients are interested when the attorney can keep the added cost to approximately one extra billable hour. This can be accomplished by providing the client with samples of testaments along similar lines to what the client has indicated a desire of incorporating, and then sending the client home to do the writing.

When the client returns with a draft (typically one or two paragraphs), the attorney usually can add a sentence or two indicating that the client's statement is precatory (expressing non-binding desires), and is intended to supplement but not supercede the balance of the document. For example, the attorney's addition could be:

This testamentary statement is for personal and explanatory purposes only and may supplement, as appropriate, but shall not supercede any provisions following.

This kind of sample testamentary statement can easily be revised as needed for trusts or other estate planning documents.

There is value in having clients put their thoughts, priorities, and convictions into their own words, because such statements are more credible to family members who know the individual. The attorney's legally exact but impersonal choice of words will sound like someone put words in the decedent's mouth - because that is exactly what happened. The problem is that beneficiaries cannot differentiate the decedent's intent written in legal terminology from a third person's coerced intent. Beneficiaries typically have no knowledge of the decedent's trusting relationship with his or her attorney. Similarly, they may have no knowledge of the attorney's competence or experience. Together with the general public's stereotype of attorneys as untrustworthy, this may lead beneficiaries to be suspicious of the authenticity of the decedent's intentions as stated in a document.

Privacy Issues

Some clients may want to maintain privacy concerning family matters related to a specific statement in a document. However, clients typically understand attorney-client confidentiality and are willing to explain the underlying facts to the attorney. Because an attorney is skilled in drafting with carefully chosen words, he or she could assist, at the client's request, in preparing a testament that accomplishes the desired effects while maintaining privacy from third parties. Examples include:

Limiting distributions for beneficiaries who have been convicted of a felony, rather than mentioning a child's struggle with alcoholism

Stating the desire for fiduciaries to comply with the tenets of a specific religious doctrine, rather than referring to a son's out-of-wedlock child

Permitting a trustee to use income or principal of the trust as needed to obtain such professional advice as the trustee may consider necessary or desirable to aid in any discretionary determination as an expense of trust administration, rather than requiring a psychological or medical evaluation.

Along with carefully drafting statements concerning such private matters, the attorney must also consider the exposure of the document. The type of document chosen for such a statement may facilitate the client's discretion and desire for privacy. A will that must be probated becomes public record in the probate or district court of the decedent's residence.2 A revocable or irrevocable trust agreement will be provided only to named beneficiaries. Tangible personal property memoranda may be probated with a will or may not ever be disclosed even to the beneficiaries.3 It is possible that health care powers of attorney and living wills may not be used or seen.

Legal and Ethical Reasons For Testaments

Statements of personal values by the client can reduce administrative costs and future friction among the beneficiaries. Such statements can streamline the fiduciary's decisions and provide objective reasoning for discretionary determinations. When a fiduciary understands the values and priorities on which the decedent operated determining a distribution course acceptable to the family...