Willing Doesn’t Make It So – The Limitations of a Will

A will is a legal document that one has drawn up prior to death that states how their assets will be allocated once they pass. This is an important step in one’s estate planning process because it can help ensure that their final wishes are carried out. However, wills can raise the question of how far is too far? For instance, to what legal extent do the wishes in wills have to be honored, especially if the terms are deemed harmful to others?


Background Information

In 2006, acclaimed playwright Edward Albee passed away in his Long Island home at the age of 88. Albee did not want the world to see his unfinished work completed so in a provision of his will he stated: “If at the time of my death I shall leave any incomplete manuscripts I hereby direct my executors to destroy such incomplete manuscripts.” He went on to say that before everything physically gets destroyed, it should all be treated as such, and thus no copies should be made.

His final wishes caused many to question the extent of obligation one has when dealing with written wishes in one’s will.

The Destruction of Assets: To What Extent is it Legal?

Albee’s passing also raised the question of what should be done if one’s requests are harmful to society. The destruction of the art of someone so successful is a great loss to all, though artistic control is beyond the powers of estate planning.  The executors of a will may feel a moral obligation to do as instructed, but that may be in competition with a moral obligation to do what’s best for the history of arts and letters and a legal obligation to conserve the assets of the estate for the beneficiaries.

Dead hand control is when someone tries to manage and control their property even after their passing. This is a common practice, though is often unsuccessful because it is prohibited by common law, meaning once you pass away, you no longer own your assets and they become part of your estate. While you can use your will to declare final wishes, there are limitations.

Prior to death, you can dispose of your assets in any way that you wish. No one can stop you from destroying your own work, though after your passing it may become more complicated. Though it would lessen your wealth, while alive, you have the right to destroy your property accordingly.

After death, it is important to note that wills are legally binding. Given that your terms are in legal forms and do not pose a threat to society, they will be followed through. If the executor is not making sure that the estate gets handled appropriately, they could be held personally liable.

However, last wishes regarding the destruction of public property will not be honored as all requests for destruction of property are invalid. These wishes left in one’s will may not have to be carried out if they violate public policy.

For more information about post humorous asset disposal and general elder law considerations, please contact the Law Office of Inna Fershteyn at 718-333-2394 for your all estate planning needs.