Eddy M. Elmer
Simon Fraser University, February 2001
The last will and testament is used generally as a financial instrument to ensure that upon death, one's assets, or 'estate', are distributed according to one's personal wishes. Without this legally binding document, courts may determine the beneficiaries and distribution of the assets according to laws of intestate succession—and often at significant cost to the estate (Reiter, 1984). Although the majority of North Americans still die without a will (O'Connor, 1996), most of those who undertake one are initially compelled to do so because they realise that tangible assets not only can secure the well-being of their families and other close survivors, but can serve as a clear sentimental recognition of those mentioned in the will. However, the will can also be considered a tool by which its author, or 'testator', can advance somewhat more deeply psychological goals, which often involve no money, or in which money is only a symbolic token amplifying a gesture far more significant than the money itself.
The will can be used to foster a sense of continuity with the lives of survivors or to preserve the psychological entity of the family. It can serve as a personal effect contributing to survivors' memories of the deceased and facilitating the grieving process. It can demonstrate a purpose in life even after death, or function as a vehicle by which the testator attempts to resolve long-standing family disputes. On the maladaptive side, it can be used to convince survivors that their lives will not—or must not—change after the testator's death. Through conditional inheritances and disinheritances; disproportionate distribution of assets; or the revelation of family secrets, the will can also be used to perpetually 'control from the grave'. It may be a personal narrative serving as a life review or even as an opportunity to 're-write' one's life story.
The purpose of this paper is to examine in detail the variety of
psychological motives for writing a last will and testament, and the psychological effect
the will has not only on survivors, but also on the testator.
While from a financial standpoint the last will and testament is often drafted to ensure the future financial well-being of one's heirs—namely one's immediate family—from a psychological standpoint it serves to both solidify one's sense of belonging and contibuting to a family unit and to ensure the psychic continuity of one's own family into the next generation.
In a counselling setting, the reading of wills and testaments of one's ancestors is often used to help clients develop a sense of intergenerational belonging (eg Humes, 1994). It would follow that the actual act of writing one's own last will and testament contributes to one's sense of family belonging and one's place in the larger context of an intergenerational legacy. In a more general sense, wills serve collectively to promote the continuation of the institution of family as a cohesive social unit (Britt, 1937). In some rare cases, wills even express attempts to develop a sense of continuity with a larger socio-historical order, as is demonstrated in Movahedi's (1999) study of militant men who had volunteered for dangerous or suicidal missions in the Middle East between 1980-1990.
The testator who attempts to leave a legacy to family members makes an attempt to recognise and solidify both the presence and significance of his/her family. This applies equally to dependent family members, such as young or mentally/physically disabled children, as to non-dependent family members, such as adult children. In the case of adult children, Brakman (1996) argues that although parents do not owe their children a legacy per se, and adult children do not have a right to expect a legacy, parents in general should try to leave these children a legacy, if possible, in order to "[reflect] a spirit of generosity and as a tangible symbol of the relationship and love between parent and child" (p. 21).
Wills and estates also express testators' varying expectations as to who will continue the family line into the next generation. Male testators, for instance, are more likely than female testators to leave the bulk of their estates to their widows, while female testators are more likely to bequeath their estates to their surviving children than to their husbands (Judge, 1995). As such, it is speculated that males use wills to express the desire that their wives continue child-bearing after their husbands' deaths, whereas females use wills to express the desire that their surviving children, and not them, continue the family's child-bearing (see again Judge, 1995). Furthermore, Smith, Kish, & Crawford (1987) demonstrate that kin of higher reproductive capacity are more likely to receive legacies than are kin of lower reproductive capacity, such as siblings. They also demonstrate that where testators have large estates, they are more likely to distribute them among male kin than among female kin. The authors suggest this reflects the attitude of testators with significant resources that the `reproductive competitiveness' of males is more important than that of females.
We should not make the assumption that the desire for continuity with family members is a reflection merely of culturally- or religiously-sanctioned obligations to family. The desire for continuity appears to be based on what the testator feels is a personal obligation to those close to him/her. This is reflected, for instance, in the increasing numbers of seniors in residential care facilities leaving bequests to close friends or other residents within the same institution (eg Rosenfeld 1979a, 1979b). In such cases, it is not uncommon that testators will leave larger legacies to friends and neighbours in the institution than to family members (Rosenfeld, 1979a, 1979b). Clearly, testators are influenced by close bonds and the desire to recognise these bonds after death, more than they are influenced, for example, by cultural or religious imperatives (see also Schwartz, 1993).
The desire for the continuity of one's family or the expression of one's personal obligations to others need not necessarily be reflected in the pattern of bequests in the testator's last will and testament. It may often take the form of humane statements written directly in the will. The testator may, for instance, express the wish that the family go on with its life and not mourn the testator's death for too long. Similarly, the testator may remind a surviving spouse that it is all right to begin dating again. The testator may even attempt to make amends for past injustices. In some cases, the will can pass down to future generations important experiences and lessons. In 1955, for example, Dr. Mary McLeod Bethune, educator, activist, and founder of the National Council of Negro Women, wrote the following as her legacy:
Sometimes I ask myself if I have any other legacy to leave. Truly, my worldly possessions are few. Yet, my experiences have been rich. From them, I have distilled principles and policies in which I believe firmly, for they represent the meaning of my life's work. They are the product of much sweat and sorrow. Perhaps in them there is something of value. So, as my life draws to a close, I will pass them on to Negroes everywhere in the hope that an old woman's philosophy may give them inspiration. Here, then is my legacy… (Bethune, 1990, p. 128).
Finally, and most importantly it seems, the personalised last will
and testament can in itself serve as a precious memory of the testator, and, just like a
cherished photograph, can help relatives remember the testator in a positive light and
help initiate a healthy process of grieving. Particularly useful in this regard is the
videotaped will (see Danet & Bogach, 1992, for discussion on video recordings).
By way of the will, the testator can do in death what could not be done in life. That which in life was too difficult, scary, or embarrassing may finally be addressed in the will.
Some testators may use the will to exercise a degree of generosity that for whatever reasons they did not wish to exercise when they were alive. This is usually accomplished through surprising and often large financial bequests to friends, co-workers, charitable organisations, and other legatees that are outside what one would normally consider the 'immediate family'. In one charming example, employees at a supermarket regularly frequented by a gruff, shabbily-dressed, and seemingly penniless retiree were shocked when some of them received cheques of up to $30,000 upon his death. While he was alive, the retiree—actually a wealthy podiatrist with a $700,000 estate—demonstrated hardly any good will towards the employees (People Weekly, 1996).
Testators may also use the will to reveal secrets that they perceive might have caused family members to think less of them or that might have elicited feelings of guilt (Schneiderman, 1992). An example may include the revelation that the testator has children from an unknown previous marriage by making a monetary bequest to them. Similarly, the testator may reveal having had a secret romantic companion or having been adopted by bequeathing a mistress or birth parents. In some cases, a bequest may be made to a charitable organisation in the name of a particular disease the testator suffered in complete silence. The will is perhaps the only time the testator can acknowledge the impact such beneficiaries had on his/her life. Sometimes wills can include the revelation of unsavoury deeds such as crimes or the hoarding of money from family members. Such revelations may or may not be accompanied by an acknowledgement of responsibility or an apology. As Schneiderman (1997) writes, "Often only the anticipation of death will cause these hidden matters to be revealed so that the testator can die with a 'clean conscience.'"
Wills may also be an attempt to rectify past disagreements and make amends with estranged family members. This may range from simple written statements of apology to bequests of large sums of money, with or without an explicit statement of apology. Unfortunately, the rectification or apology may not always be considered complete by those reading the will, since it is not delivered face-to-face. As Schneiderman (1997) reminds us,
Mistakes in life are easily made but sensitive and aware individuals can rectify these and recover from their adverse effects. However, once a person dies, their ability to rectify their mistakes vanishes. Their final contribution is the legacy provided in their will.
On a graver note is the matter of last wills and testaments attached to suicide notes. Suicide is the most devastating final act of one's life. It is a testament in itself—that one's psychological pain is fully unbearable. A will accompanying a suicide note may be considered an additional expression of the testator's suicidal intent—that which the testator obviously felt unable to divulge in life. It is often posited that suicide is a highly manipulative gesture, the suicidal individual enacting punishment or revenge against certain persons, or making an unforgettable declaration that nobody was available or able to help alleviate the individual's suffering. Yet the suicide note in the context of the will—as compared with a lone suicide note, or suicide note with instructions left to survivors—may demonstrate the testator's acknowledgement of survivors or concern for their well-being, especially if the will leaves a financial legacy. Furthermore, even if there are few assets to bequeath, the will itself—by its very nature as an often convoluted if not complex legal document—takes time to prepare. This time is in itself a demonstration of concern and caring towards survivors—something often perceived as absent in an emotionally-charged lone suicide note hastily-written in the throes of extreme, acute psychological distress.
One study of the police files on 3,127 completed suicides (Heim
& Lester, 1991) may lend some credence to this proposition. Of those individuals
leaving suicide notes, about 12% also left instructions, and about 10% also left wills
with their notes. Analysis demonstrated that those leaving wills differed from those
leaving only instructions. Those leaving instructions without a will tended to be younger;
to have had problems with work, loneliness, and addiction; and to have completed suicide
with poisons, firearms, or cutting. Those leaving wills tended to be older; female;
widowed/divorced; to have experienced problems with loneliness and addiction; and to have
completed suicide using electricity. Greater degrees of suicidal impulsivity and
ambivalence appeared more prevalent in the first group based upon age, transient
difficulties (work), and parasuicidal methods (poisoning, cutting). It might follow,
therefore, that the writing of wills demonstrates a greater concern for survivors than
does leaving only a suicide note or suicide note with instructions. See also Brevard
& Lester, 1991, for a discussion on measuring suicidal intent from suicide notes.
When it comes to vindication or controlling others' lives after one's death, it seems the last will and testament is a powerful tool. As one lawyer says, wills with vindictive comments, bequests, or stipulations "have been known to give testators a certain feeling of, uh, satisfaction" (Murphy, 1994). Schneiderman (1991) accurately observes:
[T]he will is. . .also a human document—an expression of perceived or misperceived family relationships, or both. The Will represents, in a dramatic microcosm, a family's dynamic structure and the relationships between its members. It can be a concrete expression of love that strengthens family tradition, or it can be a weapon that destroys the family. As such, the Will has considerable power (p. 68).
Testators are able to exercise varying degrees of malice by relying upon numerous tactics.
In families characterised by psychological dysfunction and estrangement, it is not uncommon that a testator will pepper the last will and testament with statements aimed at making those mentioned in the will feel guilty for the testator's death: "May my loving children now be sorry for having mistreated me all these years." The testator may mention or leave a bequest to an estranged survivor with the belief that the legatee will feel guilty for receiving an inheritance after years of having apparently mistreated the testator. Extreme cases may also include accompanying suicide notes explicitly blaming for the death those mentioned in the will. The will may also serve as a vehicle for the revelation of secrets expressly intended to instigate or escalate turmoil in the family. The testator may, for instance, reveal details of adultery or share secrets held in confidence for other family members. Families harbouring secrets, or refusing to discuss particular past incidents and thereby engaging in repression, typically have low self-esteem (Schneiderman, 1991, 1993) and are thus increasingly susceptible to these types of provocation and the turbulence that ensues.
Disinheritance, and, by extension, disproportionate distribution of one's estate is one of the more vengeful goals of will-writing. Although spiteful disinheritors are not particularly frequent (Rosenberg, 1980; Schwartz, 2000; O'Connor, 1996), wills remain an effective vehicle for retribution and control for two reasons: 1. about 30% of Americans receive some form of estate inheritance; and 2. the average rate of inheritance is $ 64,906 (Menchik & Jianakoplos, 1998, quoted in Schwartz, 2000). Since seniors are not only wealthier than other segments of the population but are also living longer, both the value of today's estates and the frequency of inheritances are significant enough that they may be used vengefully against potential legatees. Compacting this is the fact that very wealthy individuals are no longer the only disinheritors (Schwartz, 2000). Disinheritances are now occuring among testators of all socioeconomic classes. They even occur among the poorest testators, Rosenfeld's conclusion being that disinheritances "may be the kind of event that occurs in families which have the most—or the least—to lose" (Rosenfeld, quoted in Schwartz, 2000).
Vindictive disinheritances and the unequal distribution of an estate occur for a variety of reasons and take a variety of forms. A common example is the disenfranchised parent who drafts or changes a will to disinherit those children felt to be showing the parent inadequate love or respect. A parent might disinherit a child to punish him/her for having not entered the family business or having followed a career path different from the one anticipated by the parent. In other cases, the testator may punish a previous spouse by excluding him/her from the will. The more money that is involved in such disinheritances, the greater the contention, as we see amplified in extreme cases in the media. In 1997, Jack Kent Cooke, the 84-year-old owner of the Washington Redskins, punished his neglectful fourth wife by amending his will 13 weeks before his death to completely shut her out from his $825 million estate (Hubbard, Podesta, & Gowen, 1997). Marlene Cooke subsequently launched one of the year's most spectacular lawsuits. Such exclusions may also extend to the children from previous marriages. This may easily perpetuate an existing fragmentation of all the families involved and most surely puts all the children at a significant disadvantage both financially and emotionally.
Sometimes, an angry testator may enact a 'blanket disinheritance', in effect disinheriting everyone. This was the case with former Illinois state senator Charles Chew, who left everything to his one heir, his son, and inserted a clause in his will stating that anyone else who felt they should have been included in the will was entitled to receive $1.00 (Brown, 1989). Furthermore, testators wishing to absolve themselves of any guilt associated with a disinheritance or disproportionate distribution of an estate can appoint in the will an executor or administrator who will execute the disinheritance or contentious distribution on the testator's behalf.
In most cases, disinheritance or unequal distribution of an estate
is permitted to occur because the testator did not previously discuss the will with the
family—something which is generally common practice in well-adjusted families. In
such cases, family therapy is often necessary to convince the testator to make changes in
the will that are more consistent with altruistic, normative patterns of inheritance meant
to equitably pass an estate from one generation to the next. It should be noted, however,
that the execution of unusual or vindictive wills is often unsuccessful, particularly
since they are frequently contested by family members. One of the most common grounds for
contests of such wills is the mental state of the testator at the time of the will's
writing. This is referred to as 'testamentary capacity'. As older persons live longer,
they become increasingly susceptible to illnesses and disorders that impair their
testamentary capacity (Redmond, 1987). These include cancer, cardiovascular disease,
diabetes, depression, senile dementia, paranoia, delusions, and schizophrenia. In such
cases, it may be necessary to request medical and/or psychiatric evaluation from expert
witnesses to determine the extent of impaired testamentary capacity (Spar & Garb,
1992; Sprehe & Kerr, 1996; Redmond, 1987). Such witnesses must take care, however, not
to mistakenly declare impairment. As Spaulding (1985) argues, this can occur when experts
fail to recognise that a testator's definition of family often refers to 'psychological
family', and not to biological family.
It is often demonstrated that one of the obstacles in drafting a last will and testament is the testator's bewildering fear or phobia of mortality, or the seemingly superstitious assumption that once a will is written, death will be imminent (see Roth, 1989). It may logically follow that those who finally write a will have overcome their fear and have come to terms with their own finiteness. Henderson (1990) even shows that the preparation of a will can reduce one's death anxiety by helping increase one's control over the dying process (see also Robbins, 1990-1991). Yet an analysis of some wills may demonstrate a testator's creative effort to maintain after death some form of immortality in the physical world. This may be summed up as the manifestation of the testator's firmly-held belief, if not delusion, that "life must not go on without me."
In one case, for example, a father left no control of his business to his son, even though the son was instrumental in making it a financial success (Schneiderman, 1991). In this sense, the father remained at the helm of the business even after his death. In another case, a wealthy Bostonite bequeathed her mansion and vast art collection to the public, but with the stipulation that if any of the art or furnishings were moved from their original locations, the bequest was to be auctioned off in Paris and the proceeds donated to Harvard University (Murphy, 1994). To date, neither the art nor the furnishings have been moved from their original locations. In his will, publisher Walter Annenberg bequeathed his entire collection of Impressionist and Post-Impressionist artwork to the Metropolitan Musuem of Art in New York, but with the explicit stipulation that all the pieces were to hang together as a group, forever (Murphy, 1994).
Clauses in wills bequeathing large sums of money may also be telling because they may demonstrate the testator's attempt to maintain benevolence post-mortem. For example, large sums may be left to charitable organisations, hospitals, or schools. Some testators, however, make such bequests with unusual conditions or under circumstances that are sure to incite bitter challenges. This pleases the testator who wishes to exact continuing influence after death not only by way of financial gifts, but by his belief that "the world cannot go on without my generosity." In one unusual case, a retired investor who amassed a $1.9 million estate in large part through investments in tobacco companies, and who was himself a heavy smoker, left $1 million to the Canadian Cancer Society to spite his family. The family immediately contested the will. Wishing to protect its interests when it comes to wills, the Cancer Society challenged the contest. The matter was before the courts for a protracted period of time (Waldie, 1998).
In another case, a testator bequeathed a large sum to her employer, a local library, on the condition that actor Charles Bronson, whom it is presumed she never met, agreed to become an heir to her will and accept her bequest of $290,000. The testator's mother attempted to keep the money in the family, but the library argued it would be the beneficiary to benefit the most from the testator's legacy (What!, 1999). Of course, the draw-back of such wills is that they may throw into doubt the testator's mental capacity at the time the will was written, which under some circumstances, especially when bequests to close family members are involved, may render the will susceptible to probate—thus stripping the testator's attempt at 'immorality'. Frank Sinatra, however, presaged the possibility of such a challenge by his heirs, and thus astutely added to his will an unusual 'no-contest' clause. Under the clause, any heirs who contested his will had to win their challenge or they would automatically disinherit themselves (Associated Press, 1998). Sinatra therefore constructed for himself a sense of immortality by effectively acting as both the living executor and arbiter of his own last will and testament!
Finally, a last will and testament may in itself, as a piece of
intimate, personal writing, function also as a testator's artefact, a tangible piece of
one's self that once written, and barring challenges, remains a personal relic that by law
is permanent and logically can never again be changed by anyone. The will considered as
artefact may have driven the popularity of Bill Adler's 1997 book, The Last Will and
Testament of Jacqueline Kennedy Onassis (Kennedy, 1997)—a photocopy of Onassis's
entire will, bound by hardcover. As Adler said, it was for "people who could not
afford to buy a piece of Jackie at Sotheby's" (Arnold, 1997).
When we consider the term 'last will and testament', we often lose sight of the second part: the 'testament'. No matter how simple or complicated; how mean-spirited or generous; or how complete or incomplete, the will is a testament to one's life. It is a powerful document that functions as one's own personal narrative and life review. Essentially, the last will and testament allows the testator to consolidate the seemingly disparate and unrelated events of his/her life into a cohesive, consistent story, complete with beginning, middle, and end. Forming such a narrative affords the testator tremendous benefits. The narrative functions, for instance, as an inventory of one's life, thus allowing for the appreciation of everything s/he has accomplished. It also helps meld the personal life experience into the greater experience of life in general. In essence, this allows the testator a genuine sense of having been part of something greater; of having had some purpose in the world—of having mattered in some way.
The narrative may also alleviate much of the pre-death anxiety associated with past disappointment, shame, losses, regrets, and unfinished personal business. It can accomplish this in two ways. First, the narrative can allow for the more complete emotional experience of unpleasant experiences, which can alleviate the anxiety that results when such experiences are actively repressed. Second, by its very nature as a human account, the narrative can be edited. When the testator sits to write the will, there is every opportunity to frame and reframe the personal history in such a way that is most consistent with the testator's attitudes toward his/her life history. The narrative can be edited in any way; it can even be revised such that the testator develops a sense that before s/he dies, s/he is on the path toward making a 'fresh start'. The key to the narrative is that it is adaptive for the testator, and not necessarily that it is factual, accurate, and undistorted.
The narrative may also help alleviate the anxiety associated with
the belief that the past has disappeared. Neeld (quoted in Harvey, 1995, p. 254) suggests
it is reminiscence that helps us realise the past has not disappeared. This is a
valuable concept, since reminiscence is a major task inherent in the creation of
narrative. Furthermore, the same narrative mechanisms that help alleviate anxiety also
free the testator from the actual preoccupation with unresolved issues and repressed
emotions as mentioned above. This in effect prepares the testator to close several
chapters of his/her life and move on to the final chapter. That final chapter involves
preparing to fully grieve the newly-consolidated personal history. It is this final act
that undoubtedly helps make for what can be considered a 'good death'.
This paper has attempted to demonstrate that the last will and testament is more than a legal document that upon death ensures the distribution of one's estate according to one's own personal wishes. It can be considered a tool by which a testator can advance various non-financial, psychological goals. Five groups of psychological motives for will-writing were discussed. The first group included various attempts to solidify one's sense of belonging to a family unit and to ensure the psychic continuity of the family into the next generation. Examples included bequest patterns influenced by personal bonds; humane statements to those mentioned in the will; and the passing down of personal experiences and lessons.
The second group involved using the will to accomplish post-mortem what could not be accomplished in life. Examples included unexpected acts of generosity; revelation of secrets; and rectification of past injustices. Also discussed was the will as an attachment to suicide notes. Using the will for control and vindication was the third type of motive. Guilt-tripping; vindictive revelation of secrets; disinheritance; and disproportionate estate distribution were discussed. The fourth group involved using the will to maintain a sense of immortality after death, as in preventing the succession of family businesses; using conditional bequests; and viewing the will as a personal artefact. The final group involved using the last will and testament to create a cohesive narrative of one's life, benefits of which include an appreciation of one's entire life; alleviation of pre-death anxiety; and the facilitation of the process of grieving over one's own life.
Combined with both its financial, psychological, and emotional
significance, the last will and testament is indeed one of the most important documents we
will draft during our lifetime. The will speaks both to us and for us. It speaks to the
past, to the present, and to the future. Although from time-to-time it changes, it still
retains its permanence in that its author never changes. Since it wields significant
power, the will should be undertaken with contemplation, consideration, and compassion.
For once we die, our last will and testament is indeed our last.
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