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4. Goals and Challenges In Holistc Planning: Moving Toward A Team Approach
Holistic estate planning brings all the adult stakeholders—parents and children—into an open, flexible process that explores their wishes, their most important values, and the family legacy in broad terms.¹⁴ One of the principal goals of the holistic approach is determining what is truly important to family members as they approach this family transition. For example, some parents may wish to talk about the lessons they have learned in life and the values they wish to leave with their children (i.e., some way to transmit their legacy). Some may wish to make amends with a family member with whom they have disagreed, or reconnect with family members from whom they are estranged. While some people try to accomplish such goals by leaving notes in their wills or by leaving unusually significant gifts, these indirect approaches leave important communications to chance. The testator never knows with certainty whether the beneficiary will get the point.¹⁵

Another goal of the holistic approach is to examine people’s differences so that potential conflicts come out before a plan is created rather than after. Uncovering differences and skillfully dealing with them before finalizing the plan can prevent many problems that may arise after plans take effect. These problems often arise after the death of the benefactors, when it is no longer possible for them to explain themselves, change their minds, or take steps to eliminate or ameliorate problems.¹⁶ Individual meetings with all the adult family members before developing a plan is necessary to achieve this goal. If everyone does not have an opportunity to speak confidentially with a professional before developing a plan, it is difficult to know whether anyone is harboring a hidden agenda or sitting on an explosive resentment.

Parents who have never had open conversations with their grown children may make unwarranted assumptions about their children’s situations and likely reactions to their estate plans. When attorneys have incomplete or erroneous information about testators and potential beneficiaries, estate plans are more likely to be contested and the risk of malpractice claims rises. Estate planning attorneys have been able to accomplish the discussions necessary to avoid these pitfalls in some family situations; but in others, attorneys have felt limited in their ability to work with family members because they have not been truly free to have separate interviews because of conflict-of-interest concerns.

Estate planning attorneys are more likely to hear differing opinions and conflicting needs and interests in separate sessions, but every articulated difference raises the specter of a conflict of interest. To eliminate or minimize the conflict, attorneys may advise clients that the substance of individual discussions will be shared with the other family members. Unfortunately, this legal precaution can have a chilling effect on family members’ candor in individual conferences.

The alternative, suggesting that everyone should have his or her own counsel, actually can create problems when none previously existed. Because these situations inherently have the potential to become adversarial, obtaining separate representation increases the probability that the principals will become adversaries. If an attorney suggests separate counsel and people decline, the attorney can ask each family member to sign a consent to joint representation letter.¹⁷ While a consent form may satisfy the attorney’s ethical requirements, it may also pique adversarial feelings, stir up suspicions, and even cause someone to postpone or abort the estate planning process.

Holistic estate planning adds family systems professionals with mediation expertise to planning teams as an effective method for stimulating open and productive conversations among family members. In addition to addressing the limitations inherent in the attorney-client relationship, family systems professionals can bring valuable psychological perspectives to the process.

One goal of holistic estate planning is to identify the range of issues that a family needs to address, another goal is to facilitate the productive resolution of those issues. This does not imply that the process will resolve all the family’s issues through prolonged therapy. Instead, the process should aim for an efficient, pragmatic resolution of specific estate-related issues. Mediation techniques are invaluable in both raising questions and bringing them to a practical resolution. The role of mediation techniques in holistic estate planning is discussed at greater length below.

Together, estate planning attorneys and family systems professionals help families meet complex needs. But this assistance only occurs when the professionals have both a clear understanding of the holistic approach and the ability to work together. Estate planners are in the best position to help parents understand the advantages of holistic estate planning after they have established their relationships with the parents. They can then introduce family systems experts and mediation into the process to conduct the meetings with all of the family members.

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Family transitions can occur with the full participation of parents and children together, as in the holistic model, or alternatively, with only the participation of either the parents or the children. Transitions with parental involvement occur when parents engage in discussions with only their advisors and not their children. The children only learn what their parents decided when the parents die. Transitions with only the children occur when parents bow out of the whole process and leave everything—possessions, discussions, negotiations, and decisions—for their children to sort out after they have died. Parents sometimes involve some, but not all, of the children, which is a prescription for resentment and schisms among siblings. One other variation involves minimal engagement on the children’s part. This occurs when the parents inform the children, but do not discuss with them, the results of their estate planning.

15
“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, the ability to rectify mistakes vanishes.” Gerald Schneiderman, "Including a Health Professional in Will Drafting Aids Transition," TR. & EST., Feb. 1997, at 60, 61.

16
Ray Madoff explained that most will disputes revolve around the issue of testator intent. One mediator described the difficulties of mediating will disputes: “[T]here is a shadow at the table who can’t speak and can’t inform the discussion.” Madoff, supra note 2, at 178.

17
See MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. 18 (1983) (describing the informed
consent required when an attorney will represent multiple clients on one matter).