The March 2009 issue of Vanity Fair includes an interesting (albeit cheeky) article entitled "Final-Exit Strategies." Citing such works as Tuesdays with Morrie and The Last Lecture, the article notes the recent prevalence of works of fiction and non-fiction that are written from the perspective of someone contemplating their own imminent demise. "The Grim Reaper as Life Coach" (one of the numerous tongue-in-cheek observations in the article) may not be the most sensitive assessment of such works but it does contain a kernel of truth: "given that we’re all on death row, existentially speaking, finding a good writer to keep us company may be as good as it gets."
It got me thinking about how, for most people, their Will is likely the only document written for an audience to consider after their death. And its aim is, of course, strictly businesslike: who gets my stuff when I die? Rarely does one see a Will which pronounces in any way on an individual’s personal philosophy or the conveying of life lessons. But that may be changing. In a past blog, Paul Trudelle commented on "Ethical Wills" (and see www.ethicalwills.com) which are created for just such a purpose, and Ian Hull and Suzana Popovic-Montag explored this issue in further detail in a podcast.
Whether the legal profession will be prepared to embrace this broader concept of the purpose of the Will is an open question. Of course, the odd Holograph Will will contain some candid personal insights that would not otherwise be seen in a lawyer-drawn Will and, it could be argued, stand a better chance of getting published!
David M. Smith
Following up on Allan Socken’s blog of March 31, 2008 entitled “What is Legacy Coaching”, I came across an article in the American College of Trust and Estate Counsel Journal entitled “Is Your (Ethical) Will in Order?” (2008) 33 ACTEC Journal 154 by Zoe Hicks. In her article, the author reviews what an Ethical Will is, what types of topics are normally covered, the format of the Ethical Will, and how estate planning practitioners have embraced the concept of advising clients with respect to leaving an Ethical Will.
Essentially, an Ethical Will is a testament of what you want your survivors to know, rather than what material assets you want them to have. Ethical Wills can include expressions of wisdom, values and beliefs of the “testator”, reminders of heritage, apologies, explanations of actions taken or not taken, regrets, expressions of love and gratitude, and words of encouragement.
Ms. Hicks sets out numerous extracts from Ethical Wills so that the reader can get a flavour of the types of matters that an Ethical Will can to address. She concludes by observing that an Ethical Will can be a valuable exercise for both the writer and the recipient.
Have a great weekend.
The meaning of life is that it stops. — Franz Kafka
If you are familiar with Kafka and his short literary works, you will know that he was a tortured literary genius who was unsure of his own talent to the point of torment. In 1924, dying of tuberculosis, Kafka wrote to his friend of 20 years and fellow novelist, Max Brod. Kafka had made a list of his three novels and a number of stories and gave strict instructions to Brod to destroy all his manuscripts ‘unread and in their entirety’ and to ensure that already published works would never be re-printed. These instructions were not contained with a formal last will and testament, rather they were a penciled note found in a drawer after his death.
Kafka’s lover, Dora Diamont, partially executed his wishes by stashing away letters and notebooks until they were seized by the Gestapo in 1933. Sidebar: These papers are the subject of an ongoing international search. Brod, however, ignored his friend’s wishes and instead oversaw the publication of the works in his possession. Brod’s defence was that if Kafka had really wanted the works destroyed, he would have appointed another, more ruthless executor. Kafka, had, according to Brod, trusted Brod to not burn his writings.
Interesting question, perhaps not in the legal sense, but in a moral and ethical sense: Is it possible that Kafka undermined his own intentions by the very nature of the relationship he had with his executor?
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – LIMITATION ISSUES? – Part IV
As to the question of fiduciary duty between parent and child, the Supreme Court of Canada in M.(K.) v. M.(H.) held that the relationship of parent and child is fiduciary in nature and that incest was a breach of the parent’s fiduciary duty to protect the child’s well being and health.
It is perhaps the most compelling defence available to counsel defending a parent in such cases that the claim has been brought outside of the conventionally recognized limitation periods.
A significant portion of the decision in M.(K.) v. M.(H.) was devoted to the question of the limitation defences raised by the parent.
In contrast, counsel for the child argued that incest was a separate and distinct tort which was not subject to any limitation period; that incest constituted a breach of fiduciary duty by a parent and is not subject to any limitation period; and if a limitation period applies, the cause of action does not accrue until it is reasonably discoverable. Furthermore, it was argued that the child was of unsound mind pursuant to section 47 of the Limitations Act; that the tort is continuous in nature and the limitation period does not begin to run until the child is no longer subjected to parental authority and conditioning; and that the equitable doctrine of fraudulent concealment operates to postpone the limitation period.
The limitation defence failed and the Supreme Court of Canada held that the tort claim, although subject to limitations legislation, does not accrue until the child is reasonably capable of discovering the wrongful nature of the parent’s acts and the nexus between those acts and her injuries. Furthermore, that the discovery took place only when the child entered therapy and the lawsuit was commenced promptly thereafter.
All the best, Suzana and Ian. ——–