Limitations

The current issue of Harper's includes an article about how we have strayed from our understanding that the world and its resources are finite, that our knowledge and understanding are finite, and how we must re-learn to understand limitations and to work within them. Wendell Berry uses the example of artists, who use their creativity within the limitations of their chosen medium, e.g., a painter who is limited to colors and types of paints, and the size of the canvas. The challenge is for all of us to understand our limitations, and to work and think creatively within those limitations.

Trust and estate law, as is all law, is defined by its limitations. The challenge for an estate planning attorney is to craft a plan that accomplishes the goals of their client as efficiently and creatively as possible. Attorneys like to think that they know everything, and can solve any problem. This often leads to promising results for their client that are either not really possible, or that create problems that don't show up for many years.

Lawyers can't do everything. Our challenge is to listen to our clients and craft solutions based on what we hear. This does not need to result in piling on clauses in a trust document that turn it into a long, unreadable tome that tries to cover every base whether it needs to be covered or not, and may create more problems than it solves. For example, does a trust need a long, detailed instruction on creation of a special needs trust for a potential beneficiary when none of the intended beneficiaries have special needs? Should a trust contain boilerplate clauses to reduce estate tax exposure when the size of the estate is not likely to trigger the estate tax? In the litigation context, should a trust or will contest for an omitted child be attempted where there is only scant evidence that the parent lacked capacity or was unduly influenced?

Understanding the limitations of what we can do for our clients, and the limitations of our scope of representation for our clients, and drafting a thoughtful and creative solution. That makes us better lawyers, and it helps our clients in the long run, even if it sometimes means telling a client something that they might not want to hear.