Friday, October 12, 2012
Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University) and Eugene Kozob (Illinois attorney) have recently posted on SSRN their article entitled How to Conduct an Illinois Will Execution, Trusts & Estates (Illinois State Bar Association), Oct. 2012, at 1. Here is the abstract of their article:
One of the most crucial stages of a client’s estate plan is the will execution ceremony — the point at which the client memorializes his or her desires regarding at-death distribution of property. Unfortunately, attorneys may handle this key event in a casual or sloppy fashion. There are even reports of attorneys mailing or hand-delivering unsigned wills to clients along with will execution instructions. Some attorneys allow law clerks or paralegals to supervise a will execution ceremony. This practice is questionable not only because it raises the likelihood of error, but also because the delegation of responsibility may violate the rules of professional conduct proscribing the aiding of a non-lawyer in the practice of law. An unprofessional or unsupervised ceremony may provide the necessary ammunition for a will contestant successfully to challenge a will.
Since the earliest recognition of the power of testation, some type of ceremony has accompanied the exercise of that power. Will ceremonies help demonstrate that the testator was not acting in a casual, haphazard, whimsical, or capricious manner by furnishing proof that the testator deliberated about testamentary desires and had a fixed purpose in mind when making the will. The ceremonies also provide evidence that the will was actually made by the testator, by impressing the act on the minds of witnesses.
A proper ceremony, coupled with sensitive and tactful counseling by the attorney during the entire estate planning process, may make it easier for clients to cope with the inevitability of death. Unfortunately, attorneys have been accused of showing “little concern about the therapeutic counseling that goes on in an ‘estate planning’ client’s experience.” Thomas Shaffer, The “Estate Planning” Counselor and Values Destroyed by Death, 55 Iowa L. Rev. 376, 376 (1969). You need to remember that many clients make only one will during the client’s entire life and that the psychological effects of confronting death are strong. Even if you conduct scores of will ceremonies each year, you must not lose sight of the client’s emotions and the psychological benefits that may be obtained through client interviews and will ceremonies.
One commentator has somewhat humorously summarized the psychological benefits of the ceremony as follows:
When a client comes in to do something about his estate planning problem, he wants a lot of things. He wants solace because he is thinking about the day when he will not be here. He wants approval of what he has done and what he proposes to do. And he wants something else he almost never gets — a ceremony. Now, life offers very few opportunities for high ceremony. Birth is not a very good time. It is too laborious. Marriage is handled in rather a spectacular style. Nobody has been able to do much with divorce on the ceremonial side. For death, there is a ceremony, but it is hard for a decedent to be there to enjoy it. He is the principal.
The estate planning process . . . ought to be a high ceremonial occasion because a client should be getting great intangible satisfactions about these significant decisions that he has made that were embodied in the instruments he leaves behind. Estate Planning for Human Beings, 3 U. Miami Inst. on Est. Plan. § 69.1902 (P. Heckerling ed. 1969) (statement of Dean Willard H. Pedrick, panelist).
This article suggests a comprehensive step-by-step format for a proper will execution ceremony under Illinois law that can provide economical “will insurance” for every testator.