Lights, Camera...Last Words 

By Kristen McNamara, The Wall Street Journal

December 3, 2009

With guidance—and caveats—from attorneys and financial advisers, some elderly and terminally ill individuals, and even some young parents, are picking up video cameras or hiring professional videographers to share their life stories, express hopes for younger generations and explain why they're leaving certain assets to certain family members.

Emily Sanders, a certified public accountant and president and chief executive of Norcross, Ga.-based Sanders Financial Management, mentions videotaping to clients who are worried family members will fight over property when the client passes away.

Ms. Sanders's own mother made a video nearly two decades ago, after receiving a terminal cancer diagnosis. With Ms. Sanders's father operating the camcorder, her mother pointed to pieces of jewelry displayed on the dining-room table and identified the family member who should receive each piece. On the video, Ms. Sanders's mother explained there should be no confusion about her intent and joked that if the family bickered, "I'll come back and haunt you."

Ms. Sanders believes her mother wanted to prevent the fights she and her own brother had after their parents died. "She made the choices for us," she says.
Still, experts say that while videos can head off disputes, if not carefully executed, they also can backfire. "It's a mixed bag," says Steven Mignogna, a partner at law firm Archer & Greiner, P.C. in Haddonfield, N.J., and chairman of the firm's estate and trust litigation group.

A video may make sense if you are concerned that an heir will claim you weren't competent when you signed estate-planning documents or were pressured to distribute your assets a certain way, estate-planning attorneys say. Videos in which lucid individuals review their wills with their attorneys and answer questions that demonstrate their understanding of the documents and confirm they weren't coerced into any decisions can be useful in rebuffing challenges, they say. Such videos are typically filmed during a will-signing in an attorney's office and are kept by the attorney, along with the estate-planning documents.

Videos can provide a more meaningful explanation than written documents in situations where a parent is leaving more money to one child than another, says David Schwartz, a partner at the law firm Venable LLP in Los Angeles. A legal document, he says, "doesn't always have the same impact as seeing someone explain it on video."

Dennis O'Doherty, an attorney in Sayville, N.Y., had a client who taped her will-signing because she was concerned that a problem child, to whom she was leaving less than her other children, would cause a fuss. She was right.

The adult child's attorney contacted Mr. O'Doherty earlier this year, after the mother had died, to say the child intended to contest the will, believing the mother hadn't been mentally fit to execute the document. Mr. O'Doherty told the attorney about the video and invited the attorney to his office to watch it. In the end, the child decided against moving ahead with a legal fight, Mr. O'Doherty says.

Attorneys generally caution against homemade videos, saying they are more likely to cause problems than those produced in consultation with an attorney. A video filmed by a beneficiary, for example, could give rise to conflict-of-interest questions. And, whether filmed professionally or not, a video in which a person looks ill or uneasy could raise questions about his or her cognitive abilities.

Hiring a professional videographer doesn't come cheap. Depending on where you live, expect to pay $300 to $1,000 on top of attorney's fees for a video filmed during a will-signing. More documentary-like recordings of a person's life story, with photos and music, can run from $1,500 to $10,000 and up.

And even a professionally produced video won't necessarily deter someone from making a grab for an estate, says Paul Fisher, a mediator in Los Angeles who estimates at least half of his business involves trust and estate disputes. "There's no guarantee it's going to prevent problems," he says. "If someone wants to file a claim, they're going to do it."

Video isn't just for heading off legal challenges. Some individuals are turning to video to record life lessons and messages of love for family and friends. Through these recorded versions of what are known as ethical wills, individuals share their values, personal histories and hopes for younger generations.

Certified financial planner Rick Kahler, of Rapid City, S.D., says his brother recorded messages from his wife this fall, during the last few weeks of her life. They included messages for her daughter on her wedding day and for both of her children's unborn children. His sister-in-law wasn't a fluent writer, so video seemed the best option, Mr. Kahler says.

"It's a really generous gift to those who receive it," says Jeffrey Altman, an attorney with Reifman & Altman in Los Angeles. "No matter how clear your memories of someone may be, if you have them on the screen in front of you, talking to you, there's a qualitative difference."

Consultants who work with families to keep their money and businesses intact say videos can help younger generations appreciate the family's history and respect a parent or grandparent's wishes. "It's so much more powerful if later you can watch the video of great-grandpa telling the story," says Rod Zeeb, co-founder of the Heritage Institute in Portland, Ore., which helps prepare younger generations for their inheritances. 

A cottage industry of personal historians has emerged to document individual and family stories on audio, video and in writing.

Again, though, the words should be chosen carefully, legal experts say. For instance, criticizing family members on tape, dictating strategies for the family business or springing surprises on survivors is likely to be hurtful and disruptive rather than reassuring. Even taping messages of love can be risky, attorneys say. Someone unhappy with his inheritance, for example, could point to the recording as evidence of a relative's intention to leave him more than she actually did.

Finally, videos, whether used for estate or legacy planning, aren't substitutes for in-person discussions. Talking to a camera might seem easier than telling your son in person that you are leaving more money to his sister, but setting expectations while you are still alive is a more effective way to prevent fights when you are gone.

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