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Legally Speaking


Issue: December, 2005
Author: Patricia Wilhite McCartney

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What Every Lawyer Should Know About Ethical Wills

No matter what your area of practice, there is an old process that is making a sweeping impression on the legal profession. Lawyers across the country are discovering how the incorporation of ethical wills, can change the way they practice.

Although not legal in their form or effect, life testaments/ethical wills are gaining recognition as a valuable asset to the services they offer.

The history of ethical wills is long standing, dating back thousands of years. Unlike the wills we learned to draft in law school, their ethical counterparts are more philosophical, emotional and inspirational in nature. Rather than being strictly property based, ethical wills are primarily value oriented, intending to convey an individuals hopes, dreams, values, beliefs traditions and heritage.

Once limited to oral form, over the span of several centuries, ethical wills are now more commonly communicated in writing. Transcribed on archival paper, the permanent format better allows the author to preserve its content for generations beyond the writer’s own. Somewhat deceptive in their name, the application and benefits of ethical wills transcend into virtually every area of practice. A few of these are discussed below.

Most obvious, ethical wills are a significant contribution to any estate planning practice. The inclusion of ethical will preparation among the other document services affords clients a unique platform to address the intangible assets of their lives. As a practitioner, it is critical to educate your clients that ethical wills are not legal documents. Nevertheless, many clients appreciate the opportunity to communicate their lives in a personal and yet profound manner, and to be remembered as they choose. A helpful practice strategy in delineating ethical wills from traditional legal wills may involve the use of other terms less stigmatizing.

The recognition that clients are more than the material property they possess, encourages them to participate in a whole person approach to their estate planning process.

Additionally, working through the development of an ethical will often provides an unintended nexus to the traditional will or trust drafting exercise. By focusing their attention on thoughts and feelings, clients tend to feel more comfortable to confront the often difficult legal and material issues that accompany the contemplation of one’s own mortality.

The presence of an ethical will can have an equally cathartic effect on the distribution of assets and the probate allocation. For the client, it becomes a method of expression that would otherwise be inappropriate in a traditional will. For the heirs and beneficiaries, it provides the reasoning of why they were included (or omitted), why they received what they did, etc.. Such communications can prove essential in disarming the emotions that accompany most probate proceedings. Since heirs are able to view the intent through the lens of a decedent’s own perspective, such document can minimize, or even alleviate potential will contests.

Ethical wills confer the additional advantage of strengthening our rapport/relations with our clients. Taking the time and initiative to assist in an estate planning process that focuses on them as a “whole person” will not only make clients feel that they are more than “just another fee.” Doing so may contribute to a more positive estate planning experience, while fostering a positive image of an individual practice, and possibly the profession itself.

Broad in their appeal and application, the attributes of ethical wills are not limited to wills and estates practitioners. The process is gaining increased recognition among corporate clients as well. In fact, many of the top corporations in the United States have already discovered the innumerable ways to profit from ethical wills. This adoption by even the most successful members of the corporate sector, has resulted in a shift of focus among CEO’s and executives. The attitudes and emphasis placed on family, heritage and core values are becoming increasingly more significant and widespread. From Wall Street to Main Street, as the business world is gaining an appreciation of “person behind the employee” approach “to doing business. Lawyers who practice in this area may choose introduce the ethical will concept to their clients, thereby offering an option that many companies have already discovered to be indispensable in promoting a more positive work environment for their employees.

Similarly, Family law attorneys have also begun recognizing the impact ethical wills can have in the often volatile emotions that dominate family law cases. The therapeutic value of divorcing parents (particularly noncustodial), in writing to the children of the marriage, cannot be over emphasized. An ethical will that is drafted to the child/children of divorcing parents can offer tremendous reinforcement of the parent’s love for the child and assurance of the child/children’s absence of fault in the dissolution of the marriage.

With the recent advancement of collaborative law within the family law arena, there is an increasing desire on the part of clients to embrace a more amicable means of obtaining a divorce. When offered as part of the dissolution process, ethical will can be a successful part of that goal.

Finally, ethical wills can serve as a useful tool in the area of ADR, especially in cases involving a relationship-based dispute. The inclusion of ethical wills as a pre-mediation exercise, frequently provides greater clarity to the need to separate the problems from the persons involved. Equipping clients with a means of resolving their issues, while preserving relationships, defuses the animosity, while enhancing the potential for as true “win-win” situation.

In conclusion, whether for yourself, your practice, or for your clients, the integration of ethical wills can prove to be a successful addition to your services, while providing an affirming effect on all who write them.

Patricia Wilhite McCartney is an attorney and mediator from Texas.

Copyright © 2005 – Wyoming State Bar