Monday, September 9, 2013
Recently a colleague described an estate planning dispute. After the death of the first spouse, it came out that the surviving spouse had never read the couple's estate plan, but had signed the documents in the attorney's office when they were presented. The individual failed to realize the documents were not entirely consistent with what the survivor believed to be the couple's plan. The problem may be hard to solve now that the first spouse has passed. Why would someone sign estate planning documents without reading them?
In this instance, the individual in question, a successful entrepreneur, was dyslexic; reportedly it would have taken the individual hours to read the will or trust carefully, and although the individual planned to read the documents upon returning home, that did not happen.
I suspect this happens far more often than lawyers would like to believe.
As explained by the International Dyslexia Association (IDA), dyslexia is a "language-based learning disability." According to the IDA, an estimated 15 to 20% of the population has a language-based learning disability, with some estimates suggesting one in nine individuals can be classified as having a severe disability. Dyslexia can involve a cluster of symptoms, but is most commonly associated with difficulty in reading.
According to some researchers, dyslexia may also by associated with problems in oral communication. For example, IDA advises:
"People with dyslexia can also have problems with spoken language, even after they have been exposed to good language models in their homes and good language instruction in school. They may find it difficult to express themselves clearly, or to fully comprehend what others mean when they speak. Such language problems are often difficult to recognize, but they can lead to major problems in school, in the workplace, and in relating to other people. The effects of dyslexia reach well beyond the classroom."
It is possible that by the time people get to the estate planning phase of life, they have developed or learned individual strategies for coping with dyslexia. Or, they may have become experts in hiding the fact of their dyslexia.
As lawyers, perhaps it is incumbent upon us to inquire tactfully about each client's comfort level in reading, especially in reading often-complex estate planning documents. Lawyers can offer alternatives to a formal "signing" session that puts pressure on even the strongest readers to sign without informed understanding of the documents.
Strategies may include remembering to provide all clients with quiet time to read the documents, before any signing session is planned. The lawyer can also "chart" the estate plan, to provide a pictorial image of the plan for clients. Lawyers and their staff can be patient in reviewing each aspect of the plan carefully, also involving the clients with conversation and dialogue (rather than monologues). I'm sure experienced practitioners and academics have developed a whole host of key strategies that can assist not only those with dyslexia, but those with other common barriers to understanding. Is dyslexia an understudied phenomenon in attorney-client relations? "Comments" open below.
And before anyone brushes off the topic as not relevant to "their" clients, let's remember that dyslexia can be present with highly successful people, and thus there is the potential for impact on families with significant estates.