A Therapeutic Jurisprudential Framework of Estate Planning

• Publication year: 2011

SEATTLE UNIVERSITY LAW REVIEWVolume 35, No. 2WINTER 2012

A Therapeutic Jurisprudential Framework of Estate Planning

Mark Glover (fn*)

I. Introduction

Drawing upon the burgeoning field of therapeutic jurisprudence, this Article analyzes the psychological consequences of estate planning. This analysis reveals that the preparation and implementation of an estate plan through the execution of a will and other estate-planning documents has both therapeutic and antitherapeutic characteristics.(fn1) This analysis also suggests that the positive and negative psychological consequences of estate planning can serve as a framework through which to analyze the law of succession and which can provide fresh perspectives on a diverse array of estate-planning issues. Because legal scholars have generally failed to employ therapeutic jurisprudential analysis in the estate-planning context,(fn2) this Article illuminates the field's analytical relevance to the study of estate planning and encourages the broad expansion of therapeutic jurisprudential analysis to other areas of the law of succession.

To illustrate the field's overlooked analytical potential with respect to the law of succession, this Article analyzes the therapeutic implications of a set of focused and discrete estate-planning rules, namely the law governing the wills of soldiers and sailors. This analysis confirms the viability of therapeutic jurisprudence as an insightful analytical tool with respect to not only the law governing military wills but also the estate-planning process generally.(fn3) Moreover, the analysis demonstrates that the therapeutic jurisprudential framework of estate planning can ultimately reveal new areas of reform throughout the law of succession.

Although legal scholars have not previously analyzed the estate-planning process from a therapeutic jurisprudential perspective,(fn4) the therapeutic potential of preparing for the disposition of one's property upon death is both intuitive and familiar. For instance, in his classic novel Moby-Dick, Herman Melville provides a striking example of the psychological consequences of finalizing an estate plan. Not long into Captain Ahab's search for the Great White Whale, one of the Pequod's longboats is attacked while in pursuit of a pod of sperm whales.(fn5) As Melville's narrator Ishmael describes: "Then all in one welded commotion came an invisible push from astern, while forward the boat seemed striking on a ledge; the sail collapsed and exploded; a gush of scalding vapor shot up near by; something rolled and tumbled like an earthquake beneath us."(fn6) Although the sailors safely escape the immediate peril of the vengeful whale, they are "tossed helter-skelter into the white curdling cream of the squall."(fn7) They find themselves "drenched through, and shivering cold, despairing of ship or boat,"(fn8) and are left adrift throughout the night. Fortunately, as morning dawns, Ishmael and the other stranded sailors catch sight of their boat and eventually reunite with the Pequod.(fn9)

After escaping the "jaws of death,"(fn10) Ishmael reflects upon the perilous life a whaler leads, a life in which "squalls and capsizing in the water and the consequent bivouacks on the deep [are a] matter[ ] of common occurrence."(fn11) With these dangers in mind, Ishmael finds solace in the preparation of his estate plan. Instead of seeking camaraderie with his fellow crewmates, retiring to peaceful isolation in his quarters, or partaking in any number of religious rituals, Ishmael first tends to the terms of his will.(fn12) Upon ensuring that his testamentary wishes are in order, Ish-mael describes his satisfaction: "After the ceremony was concluded upon the present occasion, I felt all the easier; a stone was rolled away from my heart."(fn13)

Ishmael's account of his testamentary experience illustrates the inherent therapeutic potential of estate planning.(fn14) Formalizing the intuition underlying Melville's insight, this Article uses therapeutic jurisprudence, which is founded on the idea "that the law itself can be seen to function as a kind of therapist or therapeutic agent,"(fn15) as an analytical tool to more deeply examine the therapeutic consequences of estate planning. When viewed within this framework, both negative and positive psychological consequences of preparing an estate plan are identifiable. For example, estate planning can impose a negative psychological toll because the process necessarily involves the recognition that the testator's life will end.(fn16) Less frequently acknowledged, however, are the positive psychological consequences of preparing an estate plan. These benefits are perhaps most apparent in the satisfaction that the testator experiences from knowing that his desired testamentary scheme is legally memorialized and that his estate will be distributed according to his wishes.(fn17)

The normative aim of therapeutic jurisprudence is to shape the law in a way that maximizes its therapeutic potential without undermining the law's fundamental purposes.(fn18) This goal is especially relevant to the law of succession because of the acute psychological consequences and emotionally charged contexts of estate planning and the ultimate administration of the testator's estate.(fn19) Recognizing the often-overlooked relevance of therapeutic jurisprudence to the law of succession and seeking to inspire the widespread application of the discipline in the estate-planning context, this Article examines the special rules governing the will-execution process of soldiers and sailors.(fn20) Because this area of the law comprises a set of insulated and specialized rules, the application of therapeutic jurisprudence to the will-execution process of soldiers and sailors clearly illustrates the unique perspective that this Article's framework can contribute to the analysis of the law of succession.

This Article proceeds in four parts. Part II provides an introduction to therapeutic jurisprudence. Parts III through V then apply therapeutic jurisprudence to the process of estate planning. Specifically, Part III identifies the antitherapeutic consequences of preparing an estate plan, and Part IV examines the positive psychological aspects of the estate-planning process. Finally, Part V uses the therapeutic jurisprudential framework of estate planning that is developed in Parts III and IV to analyze a set of discrete estate-planning rules, namely the special rules governing the execution of wills by soldiers and sailors. The analysis of the law governing this focused context illustrates how the therapeutic juri-sprudential framework can serve as an analytical tool for a broad spectrum of legal rules governing the estate-planning process and the law of succession.

II. Therapeutic Jurisprudence and the Law of Succession

A. The Emergence of Therapeutic Jurisprudence

In recent years, therapeutic jurisprudence has emerged as a new lens through which to view and analyze the law. This analysis "focuses on the law's impact on emotional life and on psychological well-being."(fn21) As Professor David Wexler explains, the psychological effect of the law "has traditionally been ignored . . . or regarded as something apart from the law and its concern,"(fn22) but therapeutic jurisprudence "hu-maniz[es] the law" and inquires "whether the law can be made or applied in a more therapeutic way."(fn23) Professor Bruce Winick, who, along with Wexler, is a founder of the therapeutic jurisprudence movement, explains further that "[t]herapeutic jurisprudence is the study of the role of the law as a therapeutic agent."(fn24)

Since therapeutic jurisprudence emerged from mental-health-law scholarship roughly twenty years ago,(fn25) scholars have used its framework to analyze numerous areas of the law, including various facets of criminal and family law.(fn26) The scope of therapeutic jurisprudence continues to expand, and its proponents suggest that its framework is relevant to the analysis of all areas of law.(fn27) Indeed, proponents urge the extension of therapeutic jurisprudence beyond the realms of academia and law reform, and suggest that therapeutic jurisprudence should be a part of the traditional law school curriculum, the daily practice of law, and the legal culture generally.(fn28)

B. The Mechanics of Therapeutic Jurisprudence

A therapeutic jurisprudential analysis has two components. First, such analysis begins with the positive task of identifying the therapeutic and antitherapeutic consequences of the law.(fn29) Second, the normative goal of therapeutic jurisprudence is to shape the law to maximize its therapeutic qualities and minimize its negative psychological conse-quences.(fn30) This second component of the analysis involves proposing reforms of the legal system that will increase the law's overall therapeutic potential. Such proposals can include reforms of substantive doctrines, procedural rules, and the roles of various actors within the legal process (e.g., lawyers and judges).(fn31)

Therapeutic jurisprudence acknowledges, however, that other factors warrant consideration in the debate over a particular law's substance and application.(fn32) In fact, "Wexler and Winick have repeatedly emphasized that therapeutic jurisprudence does not dictate the more therapeutic outcome."(fn33) Instead, therapeutic jurisprudence suggests that therapeutic consequences should be evaluated...