A client recently asked her lawyer if she could put a clause in her Will stating that if any of her children got a tattoo that they would be disinherited. The lawyer questioned whether such a clause would work and whether it would be upheld by a court. Lawyers are a funny bunch, and as usual instead of answering the question with (what every client wants) a simple “Yes” or “No” the lawyers proceeded to ask a whole host of questions of their own.
This sample of the questions posed gives some idea of why any legal problem and resulting advice must be approached with care.
- Would a court see it as against “public policy” to impose the Will maker’s moral judgment on the beneficiary if the issue is a tatoo? For example a Will that disinherited a child for marrying a different race would not be enforced.
- Does the proposed clause relate to tattoos existing at the time of the Will maker’s death, or do they have to be tattoo free thereafter? Must the beneficiary be tattoo free for the rest of their life?
- What if the person had had a tattoo but had it removed? Is it too late if they had it removed only after they learned about the provision in the will?
- Did the tattoo have to be plainly visible? Would all beneficiaries have to submit to a “complete” physical exam?
- What about a temporary (say henna) tattoo?
- What about permanent makeup?
- What if the tattoo was a medically necessary part of a cancer treatment?
What if? What if? It seems humorous but this is actually the lawyers art. Lawyers analyze a course of action by asking questions, and posing hypotheticals in order to tease out possible scenarios that might result. To ask the questions is in fact to answer them. In this instance the lawyers couldn’t predict or agree with any certainty what a court would do.
So what did the client do? Apparently the client decided to avoid future expense and litigation over her estate and not include any tattoo prohibition in the Will at all. But at the same time she decided that during her lifetime she would lead all of her children to believe that the Will would have such a clause.
Sometimes it is the practical answer, not the legal answer that works best.
Tags: Article; James D. Baird; Wills, Trusts & Estates