I wrote in an
earlier post about the fact that most estate
planning trusts are simply unable to deal with the wide variety
of ways in which incapacity —usually dementia
of one sort or another—shows its ugly face. Despite the best
efforts of trust designers, families still end up asking a court to
intervene, and when that happens the trust can make solutions harder
rather than easier. I think that we elder law lawyers are asking our
documents to do too much.
I have written before
about the role of legal
forms in the practice of law and where lawyers get their forms. I
completely rewrote my forms a couple of years ago to shorten and
simplify them. I started doing it because a client asked me to
simplify a long trust (a trust from a national provider of forms). As
I went about taking out clauses that I had never seen anybody care
about, I realized that my own forms were also bloated with clauses
that had found their way into trusts decades ago and had simply been
copied from one trust to another with no regard to whether they
served any real purpose.
In the process of
shortening and simplifying my estate planning forms—and translating
them from legalese into plain human English at the same—I
discovered that not only were my forms bloated as a matter of prose
style, but most of the forms I use substantively attempted to do too
much.
A will
identifies your heirs (the people who would get your money if you had
no will) and then tells the court who you want to get your stuff. The
will may also tell the court who gets your money if one of the
persons mentioned in your will dies before you do. I have had clients
get seriously carried away with this question of out-of-order deaths,
asking me what would happen if they were at a family reunion and all
their relatives were killed by a meteor crashing into earth. I can
answer that question, but I really don't want to put the answer in a
will.
Life is unpredictable. The
math of large numbers says we should treat highly improbable events
as impossible. The same math says that when the numbers are large
enough, the highly improbable event is also inevitable. Thus, the
chances of winning the Powerball lottery are so small that it is
reasonable for any person to consider it impossible. Nevertheless,
when enough people play, it is inevitable that someone will
eventually win.
Time spent preparing for
low probability events takes time away from preparing for more
probable dangers. Legal documents that attempt to anticipate all
possibilities, I believe, are worse for a client than those that
limit their scope to the most common situations. The complex language
and legal structures built into estate plans designed to meet every
contingency become less effective because of the complexity. An
estate plan that anticipated every possible situation that life could
throw at a person would be thousands of pages long. It would be
unreadable, ignored, and worse than no estate plan at all.
The situation is akin to
the parent who keeps his child in doors in front of the television
all the time to avoid the risk of abduction by kidnappers—a low
probability event—and as a consequent risks obesity and poor
health—a fairly common risk.
I am moving toward an
approach in which legal documents should be humble. They should
acknowledge that they cannot anticipate every eventuality—life
being simply too unpredictable—and rather than trying to take
courts out of the plan, attempt to embrace what the court system
offers.
Estate planners write
trusts that anticipate capacity and plan for it. Incapacity, however,
comes in too many ways and forms. I suggest that we trust writers
continue to plan for the common case, but rather than attempting to
make a trust that will never end up in court, we write our trusts to
embrace the court system when unanticipated situations arise. Rather
than trying to avoid conservatorships
at all costs, the trusts could admit that some times they cannot be
avoided and allow for the management of trust assets by a conservator
during the lifetime of the incapacitated elder.
Similarly, I think people
writing wills ought to quit tax planning for people who don't
currently have enough wealth to pay estate taxes, quit writing trusts
for minors who are unlikely to ever receive anything, and rely more
on the law of intestacy. Planning for events that have a low
likelihood is not harmless. It complicates and weighs down the plan,
making it worse than it otherwise would have been.
It is time, I think for
those of us who do this sort of thing to take a course in humility
and write short, plain English documents that do a couple things well
rather than everything badly.
