Sometimes a will is not just a will. In Mark Glover’s recent article, he illuminates the psychological power that the law of wills and the process of estate planning can have. Although I’ve long suspected many of us who work in the world of trusts and estates do so for psychological reasons (what drives us to attempt to control death?), I’ve never seen the connection between psychology and the law of death made so persuasively and concretely.
Professor Glover begins with a useful introduction to therapeutic jurisprudence. It seems a gentle and unobtrusive movement; it largely suggests that, all other things being equal, the law should tilt toward rendering positive psychological consequences rather than negative ones. Fair enough. The model requires an analysis of the impact of laws on people, noting both the negative and positive psychological effect of the constructs law has created. An analysis should lead to an adjustment in the law if the primary goals of the law could be accomplished in a way with better net psychological impact.
In the trusts and estates context, Professor Glover notes both negative and positive (“antitherapeutic” and “therapeutic”) psychological consequences of estate planning. Anxiety about death and dying, and being forced to address issues relating to that source of angst, can by psychically troublesome. Familial conflict and estate disputes also render negative psychological consequences. Fear of the probate and administration process may provoke an anxiety reaction as well. For clients most strongly affected by these concerns, the estate planning process can be a source of worry, anxiety, and negative emotions.
Much of estate planning, however, has therapeutic consequences, according to Professor Glover. Many testators can experience “peace and satisfaction” from both the anticipated result of estate planning and the process itself. The freedom of testation afforded by estate planning can produce satisfaction in a testator’s implementation of his individual preferences, not the least of which may be provision for the testator’s family after death. The lawyer as “counselor” in the estate planning process can also have positive psychological benefits; the relationship and interpersonal support, in addition to the expert advice provided, can reduce death anxiety and minimize other negative emotions associated with wills. The will execution ceremony itself may provide the comfort and satisfaction of ritual. Finally, the execution of a will provides an avenue for self-expression, conveying the testator’s values and emotional connections. On the whole, the positive psychological impact of estate planning appears to outweigh the negative.
Having applied a basic therapeutic analysis to estate planning as a whole, Professor Glover next demonstrates how the theory could be applied to a specific example of wills law: military wills. Drawing on the general framework of the negative and positive psychological impact to be anticipated from the estate planning process, Professor Glover analyzes two reform movements within military wills: the reduction of states recognizing a privileged status for military wills, and the narrowing of the circumstances under which military wills may be executed (construing active military service more strictly). Given that those in active combat are less likely to be able to access any of the psychological benefits of estate planning if significant formalities of will execution are required, Professor Glover argues that therapeutic analysis weighs against removing the privilege of military wills in many states. Noting, however, that additional therapeutic benefits of estate planning may be accessed through attested wills if time permits (the counseling benefits of an attorney, the satisfaction of ritual), Professor Glover explains that the therapeutic balance weighs in favor of the restriction of access to military wills to those in active duty.
In conclusion, Professor Glover notes that a therapeutic jurisprudential framework can be applied to a variety of aspects of wills law. Indeed, his list of selected publications shows that he will apply the analysis to will execution in his next article (Mark Glover, The Therapeutic Function of Testamentary Formality, 61 U. Kan. L. Rev. __ (forthcoming)). I am sure it will be as satisfying a read as this article was. Until it is released, I suppose I will have to console myself with the therapeutic benefits of a nice cup of green tea, or maybe just update my will.