The "Seven Deadly Sins" in estate planning appear in no particular order and are intended to be illustrative only. These sins do not involve drafting or scrivener’s errors. Rather, each shares an underlying root cause: collateral client objectives.
Collateral client objectives refers to client wishes unrelated to the orderly disposition of property after death. Such client objectives, however, may reflect a client’s deeper, more personal, and sometimes hidden motivations or wishes. Although such collateral client objectives can be understandable, they may also increase the risk of costly discord:
- Naming two or more adult children together as joint fiduciaries to encourage them to reestablish or repair a compromised sibling relationship
- Selecting an executor of a last will and testament or a trustee of a trust on the basis of not hurting someone's feelings (e.g., selecting one's eldest child as trustee because he or she is the oldest)
- Naming a stepparent as long-term trustee for an adult stepchild (or an adult stepchild as long-term trustee of a stepparent)
- Treating children differently because one of them has "already succeeded" in life
- Forcing children to own real estate together
- Naming one sibling as a long-term trustee for another sibling absent a disability
- Mandating or effectively requiring the long-term retention and running of a family business despite a lack of demonstrated harmony, aligned interests, or management aptitude by a junior generation of intended primary beneficiaries
The nature of these variables, tethered to family dynamics of perceived position or desired control, may help explain their recurrence. Considering the full range of possibilities in estate and trust litigation, estate planning counsel, financial advisors and longtime family CPAs should carefully evaluate the dangers of what is famously known as a client's "Dead Hand": a client's after-death dictates governing the continued control over assets and the terms of their eventual disposition. Seen in this context, the Dead Hand is a common thread that runs through the fabric of the Seven Deadly Sins in estate planning and a strong indicator in assessing the risks of estate and trust litigation.