It is sad but true: disagreements between family members can and often do arise. They typically fester, simmering just beneath the surface, for years. All it takes is the right trigger to make them rise to the surface with vigor. As an estate lawyer, I’ve seen it time and again and a family member getting sick or dying frequently acts as that trigger. There are ways to reduce this risk, but a surprising number of people fail to take them.
Estate fights are emotional and difficult to resolve for one simple reason; The most important person who may have been able to resolve it is now dead and their opinion on the subject is left to be speculated about, inevitably in different ways depending on what your perspective is on the dispute. Add to that that people are suffering a loss of a family member and you have a toxic mixture that threatens to eat up an estate in legal fees.
Many times in estate disputes we wonder what the person who passed away would have said if they could provide an opinion on how things should be resolved. In other cases, people proceed with disputes knowing full well that they are going against the wishes of the deceased. Take for example applications to vary wills, which is an application to expressly override the wishes of the will-maker. There are preventative steps to guard against both scenarios.
The most important thing is to make your view known. We all know that we should have a will, yet many of us just don’t get around to it. Take the recent example of Prince, who died at the age of 57 with a multimillion-dollar estate and no will. Dying without a will means your estate is distributed pursuant to a statutory scheme. It flows by way of “intestacy”. The statutory scheme may breed conflict as it may not be fair and it cannot be varied, leading to intense arguments among loved ones.
Many people fail to draft and execute wills and many more neglect to prepare the necessary documents that address the loss of ability to make decisions for themselves (enduring power or attorneys or representation agreements). Even those that do plan for this unfortunate possibility often prepare inadequate or ineffective documents. There are more complex steps you can take to avoid an estate fight, but executing a will, enduring power of attorney, and personal directive with a lawyer with a practice in this area is a very good start.
Other steps include placing assets in joint names, but recent case law confirms that this is not foolproof and can be attacked in court after your death. You can establish trusts or give out your estate or parts of it, before your death, but then you lose access to it and if those gifts are given too close to your death they can be attacked pursuant the law of undue influence.
What then can a person do? A combination of things, really, though nothing is foolproof. Drafting a will, personal directive and enduring power of attorney is a good start, and taking other steps with your estate lawyer also should help reduce the risk considerably. Perhaps the most important step is simply to speak to your family. Tell them your plans while you are healthy. Try to nip family disputes in the bud, advice that goes beyond the estate planning in value.
In the end, estate planning is like many things in life; You can reduce the risk of an estate dispute after your death but you cannot eliminate it. The steps outlined in this article do substantially reduce the risk and often that’s enough to dissuade a potential trouble-maker from commencing a court action in the first place. The message? Let your final act be one that leaves a positive legacy.