“The Therapeutic Function of Testamentary Formality,” 61 U. Kan. L. Rev. 139 (2012)

As someone who’s argued that financial and estate-planning professionals are often—wittingly or not—in a position to effect “therapeutic events” in their clients,1 it’s refreshing to see individuals in the legal community, like Mark Glover, draw serious attention to the specifics of what this might mean with respect to the more granular moments and rituals of estate planning. In this article, Glover critically examines some of the likely positive and negative psychological effects of testamentary formality that occur around the production and execution of wills (for example, signatures, attestation and so on). He uses the construct of “therapeutic jurisprudential framework,” which, in the end, suggests that any reform of processes like those associated with will execution should, at the margin, take into account the possible therapeutic and anti-therapeutic effects of such reforms. He doesn’t suggest that this take an outsized role in such deliberations, but when advisors are advancing multiple propositions, they should take into account the potential psychological consequences for those affected. 

The origins of this idea come from mental health law, but are now being developed in other areas, including, recently, the laws of succession. In first looking at the broader therapeutic aspects of estate planning, Glover argues that the emergence of death anxiety, anticipation of family conflict and litigation and fear of probate can operate as anti-therapeutic forces on the testator. The therapeutic effects, however, can occur in connection with the freedom to express testamentary preferences, interactions with the estate attorney that can mitigate the anti-therapeutic effects of estate planning and the ritualistic elements of will execution. Testamentary formality, in particular, helps create the experience of a safe harbor for the expression of testator desires, prompt the individual to seek counsel to comply with technical requirements and make positive use of the ritualistic nature of the execution process itself. The latter creates a sense of significance and symbolism that can help individuals move through difficult transitions. The anti-therapeutic effects of testamentary formality can also generate impediments to going through the process, but they don’t have a net negative effect in the author’s view. In the end, Glover concludes that relaxing certain elements of testamentary formality can create positive effects, while retaining elements of formality, such as attestation, will also enhance therapeutic effects.

There are, however, three areas of opportunity that I think will, ultimately, strengthen this work. The first concerns the variable of the estate attorney. Some attorneys may not care about therapeutic effects at all and argue that they’re not in the business of orchestrating or participating in therapeutic events. Others will buy in completely and demonstrate an interest in optimizing how testamentary planning processes unfold. Second, what’s meant by “therapeutic” will have to be clarified, as this is actively debated even among mental health experts and society as a whole. Finally, the introduction of empirical measures drawn from a rich body of psychotherapy outcome research can better serve to bolster or refute specific claims of therapeutic value. On the whole, Glover’s and others’ work in this area represent a very constructive step toward further humanizing the law, but doing so with all due care and with the participation of the broader science that looks at psychological well-being.

 

Endnote

 1. I address this in The New Financial Advisor: Strategies for Successful Family Wealth Management (John Wiley & Sons, 2008).