“Primum Non Nocere:” Latin for “first, do no harm.” A guiding principle
for physicians that, whatever the intervention or procedure, the physician
should not cause harm to the patient.
Some
time ago, I was asked to prepare a will for a man with only a few days to live. I found him to be head-strong and opinionated,
notwithstanding his imminent death.
He
said he wanted to leave everything to his wife, but he also pointedly wanted to
disinherit one of his adult sons, with whom he had had a minor tiff a few days
earlier over something in his yard. He
was absolutely determined to get the last word.
I made several attempts to dissuade him but he wouldn’t hear of it. I
challenged him again and again — even pushing him to the point of anger — but
he wouldn’t budge. I
finally just asked him to think about it some more and completed the will as he
instructed.
Fortunately
for all involved, he sent a copy to his best friend, who had been named as the
executor. When the friend read the part
about disinheriting the son, he immediately recognized the danger. He began searching and praying for the right opportunity
to bring up the matter.
That
moment arrived as the client was in hospice, literally on his deathbed. This was their conversation:
“I feel honored to be appointed to
serve as your executor.”
“You’re my best friend. Why wouldn’t I ask you to be my executor?”
“Thank you for thinking of me, but
I’m going to have to refuse to serve.”
“But I thought we were friends. How could you refuse the request of a dying
friend?”
“Because I think you’re making a
terrible mistake, and I don’t want to be any part of it.”
“What mistake?”
“Disinheriting your son.”
“He deserves it. He was so disrespectful to me. I need to teach him a lesson.”
“You’ll teach him a lesson alright,
but I don’t think it’s the one you want to teach.”
“What do you mean?”
“You’ll teach him that some insignificant ‘stuff’ is
more important to you than he is. You’ll
teach him that everything good you tried to do in this life was meaningless and
hypocritical. You’ll teach him that in
your heart of hearts, you’re just a grumpy, vindictive, hard-hearted old bastard.”
Silence.
“Is that the legacy you really want to leave? Is that how you want him and your family to
remember you?”
More silence.
“I’m leaving everything to my wife, so it really doesn’t
mean anything. My son wouldn’t get
anything anyway.”
“And that’s all the more reason this is such a
foolish thing to do. Whether he receives
anything from your estate will soon be forgotten, but the sting of being
disinherited will NEVER go away. Your
words will go with him to his grave, and beyond.”
More silence.
“Friend, you know I’m right. You’re just being bullheaded. Why don’t you let me ask Scott to prepare a
new will and take that ugly part out?
I’m sure the document is still in his computer and it will take him
about two minutes to fix it.”
“Well, I’ll think about it.”
I
was so pleased when the friend called me and asked how quickly I could produce
a replacement will without the offensive language.
“I can do it at once and get it right over to
you. I just hope you can get it signed
before it’s too late and then get rid of the other one.”
“Don’t
worry,” he said, “I’ll take care of it.
That’s what friends are for.”
He
was as good as his word. The new will
was signed that night and the earlier will was shredded.
When
I heard the news, I breathed a huge sigh of relief. Disaster averted.
The client died the following evening.
The client died the following evening.
*
* * * *
Situations
like this one create a huge ethical and moral dilemma for me as one who
believes that family harmony should be one of our highest planning priorities. My first obligation is of course to my client
the testator. But in a larger sense, the
true objects of my efforts are those members of the testator’s family who will
reap the rewards or bear the brunt of my success or failure in helping the
client make family harmony a priority in his plans.
Just
as a criminal defense attorney must sometimes represent a client he knows is
guilty, there will be times when my clients will insist on putting features in
their plans that disrupt family harmony. Ultimately it is their plan, not
mine. After 35 years in the business,
I’ve come to terms with that unpleasant aspect of my work. However, I am an advisor and a counselor and
not a mere scrivener in the process; thus I must be willing to push back when
clients propose things that I feel will not be in their best interests or the
best interests of their family.
I’ve
learned that estate plans can cause harm in a multitude of ways, some less
obvious than others. When it’s a head-on
threat to family harmony like disinheriting a child or grandchild, I can deal
with that. My greater fear is that I
will not recognize the family-threatening nature of some feature of a plan I
draft, and thereby I will inadvertently cause harm. Here are three examples that might fall into
that category:
- When parents’ priorities and values are imposed on children and grandchildren;
- When one family member is given a role or responsibility that pits him against another family member; and
- When distributions are unexpectedly uneven and no credible explanation of the disparity is offered.
These
and other similar features should not be casually or routinely included in
estate plans. My duty, I believe, is to
make clear to the client how these provisions can seriously damage family
relationships. I must make sure the
client has fully weighed the pros and cons of employing them in his plan. If possible, I should suggest creative alternatives
that would achieve the client’s objectives without jeopardizing family harmony.
If
the maxim “first, do no harm” applies to estate planners as well as physicians —
and I believe it does — then we must resist estate planning provisions that
tear asunder family relationships, whether intentional or inadvertent. That’s a duty we simply cannot avoid.
Next: Family Harmony as a Planning Priority — Part 3:
Improving Family Harmony
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