Estate planning is a uniquely client-centered and personal process. While all areas of practice may be client focused, creating a client’s estate plan often involves helping that client inventory and ultimately pass on their life’s work and so special care and attention must be given to the client’s wishes, motivations and intentions. As you might imagine, this can often bring with it unique challenges to creating wills that at once meet client needs and also pass muster as valid testamentary instruments.
While there are many real-life illustrations of estate plans gone awry, the will of Beastie Boy Adam Yauch is one of the more interesting reminders of the need for estate planning attorneys to provide thoughtful and thorough guidance to clients.
Yauch’s will initially contained a fairly standard publicity clause, stating that “Notwithstanding anything to the contrary, in no event may my image or name be used for advertising purposes.” However, at some point this standard clause was changed, by hand, to read, “Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes [changes in italics].”
Changes made to a will by hand can make the will susceptible to challenge regardless of what those changes are because it is not clear on the face of the document when the handwritten changes were made or whether the handwritten changes were intended to have full force and effect. In addition, this short phrase added to Yauch’s will interjected an aspect of federal copyright law into a clause dealing with state, in this case New York state, publicity rights.
Not only is it problematic that this one sentence is used to address two very different areas of law, but it is also troubling that no thought is given to what is meant by “any music or any artistic property created by me.” Did Yauch intend this phrase to apply only to music or art created by him alone or to any music or art he had any part in creating? While the handwritten changes to Yauch’s will have not been the cause of litigation or public dispute either because of their form or their substance, it does not take an expert to see that they had the potential to engulf Yauch’s entire estate in lengthy and costly court battles.
Given the expressed views of Yauch and the other Beastie Boys prior to Yauch’s death, it seems that the band and each of its members felt it was important to keep their music out of advertisements in order to preserve their artistic integrity. It is no surprise that Yauch wanted to include a restriction on advertising in his will to ensure that his heirs would continue to respect his personal feelings on using his artistic product in ads as well as the feelings and wishes of his co-creators. However, the way this view on advertising was given expression appears to be an afterthought and does not ultimately ensure that Yauch’s wishes will be followed.
While not all clients have publicity rights or copyrights, many have strong feelings about what they would like their estate plans to achieve and about how their estate planning objectives should be met. It is the task of the thoughtful estate planning attorney to listen to and be guided by their client’s goals as well as preferred methods for meeting those goals; however, that is not the only task.
Advisors must take the time to understand the full universe of each client’s assets and also each client’s intentions regarding to whom those assets will pass and whether they will pass freely or with certain restrictions. In addition to ensuring that clients have accounted for all of their assets, attorneys must make their clients aware of all potential ramifications of their estate planning wishes.
It is also important for advisors to push back on occasion against certain methods of meeting a client’s goals when they know that ultimately those methods can fail or be cause for legal challenge. Estate planning attorneys must hold their client’s ultimate estate planning wishes above their client’s preferred methods for meeting their goals when the two conflict.
The best way to do this is to approach each plan with a willingness to get to the crux of what the client hopes to achieve by taking the time to listen to the client, letting the client verbalize his or her wishes in the initial stages of estate planning and building trust in the attorney-client relationship. This will enable the estate planning attorney to draft the required testamentary instruments and create a rapport in which she can provide creative and well-reasoned alternatives for reaching the client’s goals if necessary.