Ethical Will and the Other One

Why is it that some people feel they need two wills, the Ethical Will, and the legally binding Last Will and Testament? What if the Ethical Will, or its spirit, controlled the real and operative Will so that the real Will was Ethical? What changes would be required in our current legal education, or compensation, to make every legally binding will just as ethical, unethical, or amoral as the client might wish? My sense is that today the amorality of the wills reflects the attorney more than the client, on average.

Comments

[Susan Detwiler]

Yet the legal document, even if it reflects the ethics and priorities and morality of the deceased, does not give the why and wherefore of the decisions reflected within it. It doesn't provide the deep sources of the decisions. The ethical will and the legal will should be reflections of each other. The first provides the context for the latter. Writing the latter can be a catalyst for defining the former.

[Phil Cubeta]

Now, that is an excellent suggestion. Thank you, Susan. Could the Ethical Will be written with a suitable consultant first? Then translated into dollars, dates, percentages, and proper names - the kind of thing that planners and attorneys can use? Then, perhaps, the planner or attorney could initial the Ethical Will to indicate that in fact the real will does reflect the Ethical Will? That would be a consumation devoutly to be wished. Would attorneys embrace that level of accountabiilty and malpractice risk. Certainly. Because it would be good for the client, the heirs, and for society. Actually not, because it is pain for them to have to meet client needs, wants, and aspirations, when through obfuscation, jargon, and hauteur they can inflict the boilerplate, charge a project fee, and maximize profit.

Do those who work with cients to create ethical wills check for consistency with the real will? Ummm. No. Would they if the paused to consider? Ummm. No. Because it would require that they be competent to assess the real will and be willing to come into conflict in the process with highly paid legal teams who would not necessarily appreciate the interference of one not licensed to practice law.

I believe the client could step into this, and should. Without client leadership we remain at a dysfunctional stalemate.

[Susan Detwiler]

Most people don't use outside help to write ethical wills. But many synagogues have a session or short set of classes on doing them. What has been missing is the idea of making the legal will match the ethical will. Now THAT would be a great addition to the ethical will books, pamphlets and classes. Rabbis don't think in terms of the dollars and cents. But it could be taught that "Now that you've considered and created your ethical will....go forth and make it happen. And here's how." Therein lies the entre' for another speaker on translating the ethical will into action. While the client SHOULD step in, they're perhaps even less willing to brave the potential "conflict with the highly paid legal teams'. They may need a client advocate.

[Phil Cubeta]

Susan, this is a great idea. I took a shot at something similar in Appendix A of Tracy Gary's Inspired Legacies. Also see Appendix B written for advisors whose clients have done what amounts to an Ethical Memo to Advisors. If you want to pursue these thoughts please let me know. I think it has tremendous potential. http://www.inspiredphilanthropy.org/resources.htm. (Scroll down to find the Appendices.)

As a practical idea, if you can send me a good Ethical Will, I could send you back a "translation" into a form that an adivsor could use to make the real plan line up with the values embodied in the ehtical will. To really do this, obviously, the client would have to be interviewed, heard, and heeded.

[Susan Detwiler]

Phil, this is a meaty topic, and I'll follow up. We can take it off line. Give me a little time to find an ethical will (besides my own, which needs updating!). I'll also follow up on those appendices. Looking forward to it.

[Phil Cubeta]

A very meaty topic and a great opportunity for a good JD to work with a) you b) donors c) a rabbi who convenes the group.