A Perspective on Will Making

We recently prepared wills for a couple with four daughters. As our client’s left their home to come sign their wills, their oldest daughter apparently said, “I don’t like the sound of this, and I don’t think you need to sign it.” Of course, my client’s daughter is 12 and can scarcely comprehend what was signed, although she seemed to intuit that it was important.

The daughter’s comment betrays a chasm between testators and estate planners. Most testators—once they finally become convinced to prepare a will—think that signing a will is a serious act. Alternatively, for most estate planners, a client’s will or trust might be one of three that have to be drafted in just another day at the office. Will drafting has largely become a stale and mechanized process. The value of a particular client’s will to most lawyers is no more than the price tag behind it, and the sooner it’s completed the sooner the clock can start on the next one. The traditional law firm model calls for producing as much work as possible at the highest billable rates. As you can imagine, it’s not a model that inspires a lot of care for the significance of any one client’s plan.

The irony of this is that a will is arguably one of the most important documents a person ever signs. Our will-making legal traditions were largely inherited from ancient Rome.

Roman culture appears to have appreciated the significance and finality of wills much more so than contemporary American culture. The younger Pliny once remarked that Romans told the truth only once in their lives—in their will. Augustine recorded an incredible sentiment about wills that not only demonstrates the personal significance of the document, but the public’s interest in them:

There is dispute over inheritance from the dead, until the testament is produced in public. And when the testament has been produced in public, everyone is silent so that the tablets may be opened and read. The judge listens intently, the lawyers fall silent, the heralds enforce silence, the entire populace hangs in suspense, so that the words of a dead man may be read out, the words of one lying senseless in a tomb. He lies senseless in a tomb, and his words have power.

We think there’s a reason that funeral directors wear suits every day and work in buildings that look like churches. Death is final, and any preparation for it should be undertaken with at least some level of formality. It’s ironic, then, that lawyers lead clients to feel that estate planning is nothing more than signing a contract. If making your will didn’t cause you to reflect, or if your planner approached the process too casually, then we would argue it wasn’t done right. There’s a good chance you were asked what your assets are and what you’d like to do with them, and nothing else. If so, consider trying again.

Wills are one of the oldest forms of legal documents. They shouldn’t be treated as a pure legal mechanism, but as a meaningful product of a thoughtful process. It’s often difficult to discern how to give good gifts, and finding a planner who is willing to take the time to navigate tough questions with you may make all the difference.