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Sunday, March 07, 2010

THE RIGHT THING: WHERE THERE'S A WILL, MUST THERE BE A WAY?

While he and I have e-mailed back and forth quite a bit, it will soon become obvious why the reader who posed this week's question doesn't want to be identified, even by the city or state in which he lives.

He also hasn't answered one of the basic questions I normally ask readers who write for advice: Because of the potential legal implications, he declines to tell me what he actually did or would have done in the situation he describes, which took place some time ago.

Nor is he even asking for guidance in addressing the question. He merely wants to get my take on an ethical dilemma that seems to place in opposition two basic precepts: to obey the law and to honor one's father. Even so, I found his question too thought-provoking to be ignored.

Here's the story, as he told it to me.

A dying man has a wife afflicted with Alzheimer's disease. For that reason he decides to redo his will - partly because nobody can locate his prior will, written decades earlier, but primarily because that will left his entire estate to his wife, which he no longer wishes to do.

The man spends the morning preparing his new will, making detailed provisions for his wife's care but leaving her no money at all. Instead his money is to go to his children in a trust, to be used for his wife's care.

The completed will is brought back in the afternoon. In the presence of the legally required witnesses he begins to sign it ... only to have his fountain pen run dry. A creature of habit, he has signed every important document in his life with a fountain pen for almost 70 years, and refuses to change his ways now. A search for another fountain pen ensues _ but, before one can be found, the man dies, leaving his new will unsigned.

Though the old will clearly no longer reflects the dead man's intentions, which are clearly defined in the new will, legally that unsigned will is meaningless. If it were ever found, the old will would be legally binding, and the entire estate would go to the man's widow.

The old will cannot be found, however, so legally the man is assumed to have died intestate. Under the rules prevailing in his state, my reader writes, this means that half of his estate will go to his widow, with the other half divided among his children.

Independent of the legal requirements, however, my reader wonders about the ethical situation if the earlier will should be found: "Would it be ethically imperative, acceptable but not imperative or unquestionably verboten for the finder to destroy that earlier will?"

He goes on to ask if it would make any difference whether or not the finder was one of the man's children, who stand to benefit financially from the will not being found.

I am not a lawyer, so I cannot say whether a copy of the earlier will might have been filed with some authority that could easily resolve the matter. Nor can I advise my reader what the penalty might be for suppressing or destroying a valid will.

That wasn't his question, however. It's safe to assume that anyone destroying a will would understand that it was against the law to do so. My reader wonders whether, even so, it would be ethical to destroy the will under these unusual circumstances.

I am always hesitant to give advice that condones breaking the law, but there are cases in which what's legally required is not necessarily the right thing to do. It is almost always the ethical choice to obey the law, but not always, and "It's the law" is rarely if ever in itself a satisfactory answer to a question of ethics.

This case is complicated by the fact that it isn't a clear-cut choice between honoring the dying man's wishes or obeying the letter of the law. His actual wishes, involving the disinheritance of his wife and the establishment of a trust fund, cannot be realized at this stage. His wife will receive at least half of his estate, regardless of whether or not the old will is found. The choice is between no will and an old will, with the former coming closer to what the dying man wanted to accomplish than does the latter.

That being the case, I believe that for someone finding the old will - regardless of whether or not it was a child of the man - the right thing to do would be to consider whether he or she is willing to break the law in order to more closely honor the dying man's wishes and to pursue what she sees as a greater good.

If he or she is willing to live with the potential consequences of that decision, I believe that destroying the old will could be an ethical choice not ethically imperative, but ethically acceptable.

c.2010 The New York Times Syndicate (Distributed by The New York Times Syndicate)

2 comments:

Steve said...

From an ethical standpoint: don't look for the earlier will. If you find it in dad's effects, you have to give it the courts. But, if the will is generally thought to be lost, there's a good chance that it won't turn up.

Somebody needs to apply to be the executor (or a junta of co-executors if all the siblings want it that way). The executor should petition the court to adopt the unsigned will as dad's intentions, and simultaneously set up a conservancy for mom. The people who would have witnessed the signing of the will can vouch for what transpired. This doesn't sound that difficult (unless there are additional details).

I'm not a lawyer, either. But, something's missing from the details. If the dead father only had one wife, and if his children all get along reasonably well, there's no reason what I describe above won't work.

The only way that the earlier will is important is if there is somebody that would benefit if the courts found and accepted the earlier will. E.g., if there's a former wife, or step-children, or if mom's Alzheimer's isn't so far along that she could still be deemed competent by the courts, it could get messy. Since mom would probably get at least half if dad was ruled to be intestate, it's probably siblings or half-siblings that are muddying the waters.

Joy Williams said...

I think from an ethical standpoint there is more than one ethical question at hand. The writer states that the new will makes specific provisions for his wife's care, but no money. Should the old will not be found, and he be considered to have died intestate, the money would in most states revert to his wife.

However, given that the wife's Alzheimer's was clearly advanced enough that he felt he needed to change his will that tells us she is probably no longer able to care for herself, or make financial decisions. Should this matter go to probate as a result of his dying intestate, the court will appoint an administrator to oversee the finances, and ultimately the wife's care.

A court appointed administrator has no emotional investment in the decisions to be made for the wife. It is his legal fiduciary responsibility to act in the best interest of the estate. He is unlikely to choose the type of place for the wife's long term care that her husband probably would have specified in his detailed wishes.

Further, a court appointed administrator, and the probate process will eat up a considerable chunk of the husband's estate, thereby leaving less money to ensure that his wife be taken care of in the manner the new will specified.

Allowing the monies to revert to the wife via probate could potentially leave her in a more dire financial predicament than submitting the original will to the courts should it be found.

If the wife is not able to manage it then or in the future, due to the Alzheimer's, a competency hearing to gain control of the money for her best interest is a far less expensive and time consuming process.