For you detractors who scoff at the idea of law as a healing profession …
I was inspired to write this post after reading a recent article by Mark Glover, “A Therapeutic Jursiprudential Framework of Estate Planning,” in 35 Seattle Univ. L. Rev. 427 (2012).
The author is an assistant professor at Louisiana State University. The article begins with a reference to Moby Dick – specifically when Ishmael’s brush with mortality in the attack on the longboat in which he was riding was attacked. Having survived the “jaws of death,” Ishmael subsequently puts his affairs in order and makes a will, and feels as if a stone was rolled away from his heart. Glover’s article looks at therapeutic jurisprudence, the aim of which he describes as “to shape the law in a way that maximizes its therapeutic potential without undermining the law’s fundamental purposes.” at 429 (citation omitted). Why did I read this article and describe it here? Glover’s stated aim is to spread the word about therapeutic jurisprudence in the estate planning and administration context. I was interested!
I liked his point about one of the “antitherapeutic” aspects of making and finalizing a will – that the experience is essentially “taboo-defying,” and as such, tends to be upsetting to many people. In my experience I think this is a stretch. I work with many people who have been thinking about estate planning for a long time, and it takes them a while to come in and get started or to complete the process. I can also say from my own experience of updating my will and POA just several weeks back, that a couple folks in my office looked at me as if I was not telling them something important about my life (or death). Therein lies the taboo. It is insidious! Next he identifies seven concerns that psychologists have identified that lead to a fear of death:
- They can no longer have any life experiences;
- They may be uncertain as to what will happen to them if there is a life after death;
- They may be afraid of what will happen to their bodies after death;
- They realize they will no longer be able to care for their dependents;
- They realize that their death will cause grief to their relatives and friends;
- They realize that all their plans and projects will come to an end; and
- They may be afraid that the process of dying will be painful. (citation omitted)
Avoiding estate planning helps some people avoid thoughts of their own mortality. I must ask the practical question – and how is this a good thing? It is about perpetuating death-denial that pervades our culture. The crazy thing is that busting the “taboo” of thinking about death by making an estate plan is – I believe – an invaluable way to think about what is important to us in our lives right now, and are we living the kind of life for which we want to be remembered? I already broached this topic in an earlier post, about writing your obituary now. [link to post] From this article I learned of a study that (more than thirty years ago) that referred to the professional estate planner’s anxiety about raising the issue of mortality with clients?! I don’t think I know of colleagues with that type of skin.
Glover also looks at estate disputes and familial conflict and the tangled web of concern over who gets what when there are children and assets involved and everyone may not get along. I liked his footnote citing an article by M. Begleiter entitled “Anti-Contest Clauses: When You Care Enough to Send the Final Threat.” This is a primary reason that I advocate mediation clauses in wills. The mediation clause cannot, under present law, force disputing parties to go first to mediation prior to a challenge in court, but a testator can certainly express herself about how she intends her children to get along and resolve any disputes they may have. A good article by Lela Porter Love about mediating probate matters to preserve and promote family harmony can be found here.
In the second half of the article, Glover finally gets to looking at the “therapeutic consequences” of estate planning. He seems to start with the premise that only sailors on whaling ships (like Ishmael) should be entitled to feel good about getting their affairs in order. I would tend to disagree! One of the first benefits he discusses is that of self-determination, namely that deciding in advance who will be your beneficiaries knocks out the possibility of others determining the distribution (even “the government” meaning state laws of intestacy). He also cites a helpful article about the “Power Tools” of estate conflict management by Paul Fisher, available here.
Finally, I liked what Glover had to say about the will execution ceremony. It is and ought to be recognized as an important achievement, one which should provide the testator an amount of satisfaction. The typical will ceremony in Colorado involves two witnesses, and can provide a certain amount of relief in that the anxiety remaining about mortality will often be replaced by a feeling that a person has put his or her affairs in order. The last bit of fascinating information in this article concerns the origins of the Nobel prizes. Grover points out that Alfred Nobel was the reader of a premature and highly critical obituary, as it was erroneously originally reported that Alfred, not his brother Ludvig, had died of a heart attack. As a result of the “merchant of death” description in the obituary, Alfred Nobel bequeathed the bulk of his family fortune and his family name to the prizes that rewards persons making contributions for the benefit of humanity. I recommend this article for reading by anyone who questions the therapeutic benefits of making a will, writing a testament, or executing durable powers of attorney.