If you’re a trusts and estates lawyer, you’re in the business of making sure people get a say in what happens with their stuff after they’ve died — even if there are a lot of living people who aren’t at all happy with what the dead guy wanted. Giving preference to the wishes of the dead is what estate planning is all about. It’s legal, but is it “moral”?

It’s not like you’re going to harm a dead person if you ignore his beautifully written will — he’s dead. So if honoring a person’s will wasn’t legally required, would it still be the “right” thing to do? I think most of us would say “yes.” But why?

That’s the question at the heart of the Future Perfect podcast episode entitled The Wishes of the Dead, which should be required “listening” for all estate planners. In it ethics professor Barry Lam uses the story of the controversial Hershey chocolate fortune and charitable trust as a jumping off point to extract big ideas, unquestioned assumptions, and unexamined conflicts lurking in the body of law we trusts and estates lawyers call home.

Lam ends the podcast in conversation with philosopher Samuel Scheffler, author of Death and the Afterlife. Sheffler’s key insight in that book is that a lot of what we do in life has meaning because we believe it’ll have an impact on the people around us after we’ve died. In other words, to ignore the wishes of the dead can, as Lam puts it, “make their lives and projects pointless,” which in a way “might be worse than harming or wronging them.”

So is that the moral justification for honoring the wishes of the dead? To do otherwise is a form of erasure. Maybe. Anyway, this kind of philosophizing is a pleasure we rarely get to indulge in as working attorneys. Do yourself a favor: indulge, listen to the podcast in its entirety. Here’s an excerpt from the show’s transcript:

Barry: I’ve been thinking about the wishes of the dead for months now and I couldn’t convince myself that we have an obligation to dead people … But maybe I was thinking about it all wrong. I was thinking of myself as the person who was living in the present and I saw a world that was honoring the wishes of people in the past. But what if I looked at the future after I died? Would I want someone just to discard what I cared about and what I wanted and act as though my life and projects were over and the world had to move on? … If my father worked long and hard on a book all of his life and I just throw it away, I have done something bad to him. I don’t know if you should say wronged him or harmed him, but I do think there is clearly something you can do to past people that might be worse than harming or wronging them. I think you can make their lives and projects pointless, and this comes from an interesting fact about human life. The meaningfulness of many of our actions might very well depend on whether future people are around to be affected by them.

Sam: This is an interesting fact, if it is a fact that, we would lose confidence in the value of things we’re now doing in our lives if we thought that there weren’t going to be any people in the future.

Barry: That’s the philosopher Samuel Scheffler who wrote a book called Death and the Afterlife. Sheffler’s key insight in that book is that a lot of what we do in life, like working to cure cancer or writing novels, get their meaning or value from the fact that human beings as a whole have a future on this earth after our deaths.

Sam: If they don’t exist then what we’re doing now doesn’t seem worthwhile and so in a way we depend on them.

Barry: Sheffler’s book focuses a lot on how the existence of humanity in the future brings value to many of our activities. All of us know that we’re going to die. That doesn’t stop us from finding meaning in the things we do. It doesn’t stop us from finding meaning and things that only benefit the world after our death. But if you knew that shortly after you died, humans would go extinct, then a lot of your activities would seem pointless. But I think there’s more to it. We don’t just need people to exist in the future, we need future humanity to be affected by our projects. Our projects have to live on in future people for our projects to be meaningful.