Introduction:
A will or trust is a legally binding document if created correctly, and both legal and tax authorities will have access to its contents most of the time. Every beneficiary has a legal right to obtain a copy of the document(s). Banks and trust companies may be restricted to only seeing a Certificate of Trust created by the trustor, but if no such certificate was created, they will want access to the entire document before opening an account or assisting in transactions. A Will is normally filed with the court, thus is a public document accessible to anyone.
Thus, a document created in the privacy of the home or the lawyer’s office becomes a public or semi-public document upon death and will be read by many people. And the document normally becomes irrevocable and fully binding upon death. Often millions of dollars, or more, depend on the proper creation of the document.
While most people utilize an attorney to draft the documents, many use online forms or even create what are called “holographic” wills in which they simply write out what they want to happen upon death. The holographic wills are by far the most likely to result in disputes since the layperson seldom knows the type of wording and clauses to put in to avoid ambiguity and/or will contests.
Often people wish to communicate with heirs or family members after death and consider putting verbiage in the will or trust that has messages of love and encouragement. Less often, angry people wish to castigate or attack persons in those documents, making accusations or pouring out resentment or justification for past actions.
Such post death communications in estate documents are not only dangerous for the viability of the estate documents, but a very poor way to get a message across to the next generation. We advise against it strongly, and the topic of this article is to explain why vindictive verbiage in the estate documents should be avoided and what alternatives exist.
The Voice from the Grave:
Whether in estate documents or not, post death communication can have a tremendous and often harmful effect on the ones receiving the communication. It is a message that can have no response. It is a message from a person now deceased and has all the reverberations that one can expect from hearing from those no longer alive. And it is permanent; it cannot be explained or taken back by the one giving the message, it stands unaltered and unexplained forever.
It is not real communication, of course. Real communication requires the give and take of ideas and thoughts. Since no response is possible, the message post death is simply one person expressing his or her views or emotions and not expecting any reply at all. It is a speech, not a dialogue.
When the message is from a parent to a child, it is especially powerful. We all were brought up to respect and obey our parents and even if that respect declined over the years, death has a way of making us go back to our earlier emotions, especially within the family. Unless supportive, the voice from the grave is akin to a parent bellowing at the child.
The worst such examples stem from holographic wills. Any experienced probate attorney will advise the client to avoid communications in the will or trust that may hurt. Someone writing out his or her will has no such advice and may be more inclined to lecture or accuse the heir or a third person, knowing that no reply is possible. Often, prescribed (or unprescribed) drugs may influence the emotions of the person dying leading to even more extreme messages.
Does it cause harm? This writer represented the son of a wealthy man who enjoyed years of using his wealth to cause his family members to accede to his demands. He would often threaten to cut off one child or another unless they did what he wanted. My client, the most independent of the children, refused to comply and went out to make his own fortune and did. He was proud that he never asked anything of his father or mother even though his father would often try to gift him assets. And he would refuse the assets knowing, as he said to me, that “Nothing is free.”
But his father had his revenge. In a long codicil to his will, he disinherited my client and went into minute detail as to how my client had almost failed in business numerous times, would probably fail in the future, did not have real acumen, but that his attitude was such that he would get no money from his dad. My client feigned indifference and amusement but I could tell he was deeply upset. In all of his future business deals he would comment to me during negotiations that maybe his dad was right. The negotiations became tests to prove to his father he could perform; he began to drink and no longer enjoyed the process. Eventually he sold his company for half of its real value and retired from business.
Another such post death attack was in the trust of a woman who had favored one daughter over another. In a tirade in her trust, she expressed outrage over the ingratitude of the unfavored daughter, even attacking her taste in men. Her last paragraph actually accused the husband of being unfaithful to the unfavored daughter and essentially said that the mother did not blame him. The family was shattered. It was also untrue but created a suspicion that took years to overcome.
An elderly attorney, who would refuse to allow his clients to engage in such conduct, once told a client that if she had something to say to the heirs, say it now when they can answer back. He said it was cowardly to use the trust to attack someone who could never respond.
Good Messages from the Grave?
That same lawyer told a client that he should adhere to the “Thumper” message method in all estate documents and, indeed, in all letters from the grave even if not part of the estate plan. “If you have nothing good to say, don’t say it.”
Many people do want to give a last message to someone else and that can be accomplished. It should not be in the estate planning documents since every word there will be public and can be examined by hostile eyes seeking to invalidate the plan. Instead, a letter can be created to be given to the person after death and left with the lawyer or CPA. The key is not to attack the person in the letter or complain but to give expressions of love and gratitude. That message is powerful, it comes from the grave, but it supports and does not hurt. One client, in his nineties, showed me such a letter he had received from a dying uncle sixty years before. He had kept it as a treasure.
Even seemingly innocuous comments in such a letter can still harm if not carefully structured. One client’s mother had commented that she hoped her daughter would buy better clothing with the money. That expression deeply hurt the daughter even though I know the mother was simply expressing a sincere effort at helping the daughter.
If you are going to engage in such post death communications, have a third party review them. You might not realize how your comments can be interpreted by other people. Encouragement and expressions of love are always welcome. Keep it short and simple and if you find that you are drifting into criticism, stop.
Disinheriting Without Venom:
In most jurisdictions if one is going to disinherit a family member it is good practice to do so explicitly, mentioning the heir by name and expressly disinheriting him or her. That, of course, is a powerful voice from the grave, a condemnation, often from a parent, that is combined with lack of inheritance.
It is possible to disinherit someone without an attack on that person; indeed, you can make it into a form of support for that person. It need not be explained in detail nor justified. One has an absolute right to disinherit. But a very brief explanation that may take some of the sting out can be a very good act of kindness.
We often recommend phrasing along the following lines: “I intentionally do not provide for X in this Will. I am convinced that with her intelligence and work ethic she does not need the assets I am distributing to others.”
Another variation: “I love my son and am proud of all he has accomplished. I do not believe that leaving him any assets in this Will will be necessary given his success and thus do not provide for him in this Will.”
Any further messages should not be in the will or trust but, perhaps, in a letter to be opened upon death, subject to the restrictions mentioned above.
Why Even Do It?
Given the dangers to the estate plan and the emotions of the heirs, why engage in post death communication? It behooves the person considering that step to carefully consider their own motivations.
If they have something to say, why not say it now, while alive?
If they do not think it will be listened to unless from the grave, carefully consider why that is the case. Why do you have to be dead to have your words listened to?
If you are angry and want to make sure your position is justified and they hear your defense, why do it from the grave? Write your letter while alive and give it to them now so they have a chance to respond.
In short, why do you need the shield of death to express your thoughts and emotions?
If, on the other hand, you want to hurt someone and think this is an excellent way to do it, you are perhaps right. But do you want your memory among all your heirs (and all will hear or read what you write) to be the vindictive or angry attack that you are contemplating?
One young niece once told the writer that when she read the attack on her sister made by her aunt in the will, she was shocked and disappointed. The aunt had always seemed sweet and loving to her and the furious words in the will undercut all her memories of the aunt. She wrote, “I always loved her as a giving and warm person. Now all I can think of is how she attacked my sister when my sister could not respond to her.”
Conclusion:
Studies have been conducted examining the conduct of people both in traffic and online. Put simply, in the apparently isolated position of sitting in a car or typing on a keyboard online people tend to become more aggressive, less tolerant, quick to anger and other emotions. All of us do this: you drive cutting people off in heavy traffic while you would never cut in front of someone in line at the grocery store; and companies are well aware that e-mail communications can destroy working relationships quite often.
It is the apparent inability of the other person to respond that promotes such conduct, the studies postulate. One can type or drive and the other cannot respond effectively; you do not really see their face, experience their reaction, understand that you may have hurt or alienated them.
The same rationale applies to messages in your will, trust or other documents delivered after death. You are not there to see the reaction, to have to handle what your words or deeds have done. The same psychological tendencies may result in your words having a very different effect than you would expect. Think long and hard before you elect to use this method of communication with your heirs.