Should We Honor Your Wishes? Your Demands?

New York was the first of many states allowing the modification (decanting) of “irrevocable” trust agreements.  Of course, under the right circumstances, an irrevocable trust can be amended (in NY, and other states) with the consent of the creator.  But the decanting statute allows significant changes to the terms of a trust which the creator (whether by a trust deed or via his or her Last Will & Testament) understood to be irrevocable, and in which he or she has no say.   In modern usage, then, it may not be possible to revoke a permanent trust (other than by distributing it to the beneficiaries or losing all the money), but we can change it, and that seems a curious twist on the plain meaning of the word irrevocable, in the opinion of the Will Doctor.

In fact, we can make significant changes in the terms of the trust, its duration, and even the people who benefit from it.  We have used this law many times, with very positive results for the families involved.  We have fixed errors, improved the tax treatment, added flexibility, and extended the duration of the trust protection.   I am comfortable that in each case, the creator would have been supportive of our efforts.  It is easy to envision, however, ways in which the intentions of the person whose wealth we are managing can be frustrated, bypassed, contradicted or ignored.

A wonderful piece in the NY Review of Books (Nov 7 Issue) by J.M. Coetzee explores the quandry we face when confronted with the words of a person, in his or her absence, which they took to be irrevocable.  From the Review:

“Perhaps the most notorious case of an executor countermanding the instructions of the deceased is provided by Max Brod, executor of the literary estate of his close friend Franz Kafka. Kafka, himself a trained lawyer, could not have spelled out his instructions more clearly:

Dearest Max, My last request: Everything I leave behind me…in the way of notebooks, manuscripts, letters, my own and other people’s, sketches and so on, is to be burned unread and to the last page, as well as all writings of mine or notes which either you may have or other people, from whom you are to beg them in my name. Letters which are not handed over to you should at least be faithfully burned by those who have them.

Yours, Franz Kafka.

Had Brod done his duty, we would have neither The Trial nor The Castle. As a result of his betrayal, the world is not just richer but metamorphosed, transfigured. Does the example of Brod and Kafka persuade us that literary executors, and perhaps executors in general, should be granted leeway to reinterpret instructions in the light of the general good?”

Coetzee goes on to plumb the legal origins and ethical dileama which we face with the Testament of a decedent:

“In law, the words of a will are meant to express the full and final intention of the testator. Thus if the will is well constructed—that is to say, properly worded, in accordance with the formulaic language of testamentary tradition—then interpretation of the will will be a fairly mechanical matter: we need nothing more than a handbook of testamentary formulas to gain unambiguous access to the intention of the testator. In the Anglo-American legal system, the handbook of formulas is known as the rules of construction, and the tradition of interpretation based on them as the plain meaning doctrine.

The plain meaning doctrine has for a while been under siege. The essence of the critique was set forth over a century ago by the legal scholar John H. Wigmore:

The fallacy consists in assuming that there is or ever can be some one real or absolute meaning. In truth, there can be only some person’s meaning; and that person, whose meaning the law is seeking, is the writer of the document.

The unique difficulty posed by wills, one might add, is that the writer of the document, the person whose meaning the law is seeking, is by definition absent.

The relativistic approach to meaning expressed by Wigmore has the upper hand in many jurisdictions today. According to this approach, our energies should be directed in the first place to grasping the anterior intentions of the testator, and only secondarily to interpreting the written expression of those intentions in the light of precedent. Thus rules of construction no longer provide the last word; a more open attitude has come to prevail toward admitting extrinsic evidence of the testator’s intentions.

In 1999 the American Law Institute, in its Restatement of Property, Wills and Other Donative Transfers, went so far as to declare that the language of a document (such as a will) is “so colored by the circumstances surrounding its formulation that [other] evidence regarding the donor’s intention is always [my emphasis] relevant.” In this respect the ALI registers a shift of emphasis not only in US law but in the entire legal tradition founded on English law.

If the language of the testamentary document is always conditioned by, and may always be supplemented by, the circumstances surrounding its formulation, what circumstances can we imagine, surrounding instructions from a writer that his papers be destroyed, that might justify ignoring those instructions?

In the case of Brod and Kafka, aside from the circumstances adduced by Brod (that the testator had unrealistic standards for publication of his work; that the testator was aware that his executor could not be relied on), there is a third and more compelling one: that the testator could have had no reliable idea of the broad significance of his work.

Public opinion is, I would guess, solidly behind executors like Brod and Mobbs who refuse to carry out their testamentary instructions on the twofold grounds that they are in a better position than the deceased to see the broad significance of the work, and that considerations of the public good should trump the expressed wishes of the deceased. What then should a writer do if he truly, finally, and absolutely wants his papers to be destroyed? In the reigning legal climate, the best answer would seem to be: do the job yourself. Furthermore, do it early, before you are physically incapable. If you delay too long, you will have to instruct someone else to act on your behalf, and that person may decide that you do not truly, finally, and absolutely mean what you say.”

The Will Doctor is dedicated to scrupulously observing the wishes of our clients, when carefully set into a Trust Agreement, or a Will.  I regret that I might have followed Kafka’s instructions.  But: we must all learn to discern wisdom, and not absolute obedience, as we seek to understand someone else’s intentions.

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