Dr. Val Farmer
Rural Mental Health & Family Relationships

Open Estate Planning - Maybe Not

March 24, 2008

I mentioned in a previous column that open estate planning might be used as a tool to prevent elder abuse. I received a letter from an attorney who didn’t agree. If fact, he believes that open estate planning may cause elder abuse.

He routinely advises clients not to read their Last Will and Testament to their children or give them copies of it, or tell them what is in it. He feels that almost invariably, when they have gone against his suggestions, there is an uproar in the family and it causes a split in the family relationships. He cites some examples, without using names, where open estate planning has led to abuse.

Having your children find out "your" wishes after "your" death by reading "your" Last Will and Testament may not prevent any family feuds. What it does prevent is family feuds in your presence the last ten or fifteen years of your life after you have read your Last Will and Testament before them or told them what's in it.

Caregiving brother. A woman who had no children had been widowed for about 20 years. She had a brother who lived next door to her who took her to do her shopping, to doctor appointments, to church, and everywhere she needed to go since she didn't drive.

She had a second brother who lived more than 200 miles away from her. She came to the attorney’s office to write a Will, and left all her modest estate, around $300,000, to the brother who lived next to her because of all the kindnesses he had offered her.

She then left the office, and against her attorney’s advice, told both of the brothers that she had left all her assets to the brother who lived next to her. The brother who lived 200 miles away was furious. The following month she changed her Will so that the assets were left equally to the two brothers. She told her brothers, thinking they would accept her decision.

About a month later she got to feeling bad, came in and changed her Will to the original plan of leaving everything to the brother who lived next door. Again she told her brothers.

She came in a fourth time, and told the attorney she had been receiving constant pressure from the brother who lived 200 miles away to change her Will again, leaving him half.

Her attorney told her to write a Will and leave it all to charity, or at least tell the brothers she had left it all to charity, and only then did she have peace from the quarrelsome brother for the remaining ten years of her life.

The wayward daughter. This situation involved a widow who had only one child. The child was raised by her parents in one faith but she married a man of another faith, and became a member of his church. Later, under pressure from her husband and the teachings of the his church, she came to view the church of her youth in a less favorable light.

The widowed mother, however, remained a faithful member of her church. The attorney wrote a Will for her, and in her Will she left a substantial donation - 25 percent of her estate - to her church. Again, against the attorney’s advice, the mother told the daughter what she was going to do.

The daughter constantly harassed her mother about the Will for the last 15 years of her life, even to the point of withholding visits from her only grandchildren.

It would have been better for the daughter to discover, after her mother’s death, that her mother continued to support the faith of her fathers. The mother would have had a much more peaceful final 15 years of her life and would have been able to see her grandchildren more.

The caring daughter. A widow had five daughters, four of whom were financially successful, and one who was financially poor. The mother moved in with the poorer child because she had the more generous heart. The richer daughters did not have time for their mother, although they had larger houses, smaller families, and were better off financially. The mother also gave her devoted child Power of Attorney.

The more successful daughters called daily, not wanting to talk to the mother, but to find out what checks had been written by the caregiving daughter on behalf of the mother. They would take turns calling. One would call in the morning, one would call in the afternoon, another the morning of the next day, and another the afternoon of the next day, and so on, again not wanting to talk to the mother, but to find out if and when any checks had been written.

The attorney points out that the abuse came at the hands of the greedy daughters who had all been successful financially, not by the devoted daughter who was acting out of the generosity of her heart.

No universal answer. Each family situation and dynamics are different. By being too open, some parents may invite manipulation, conflict and abuse into their own lives. By not being open enough, some parents allow conflicts and inequities to burst after they are deceased.