Family communication key to avoiding estate litigation
By AdvocateDaily.com Staff
In some families, the death of a loved one can spark a dispute that results in expensive and protracted litigation — but it is possible to minimize conflict by taking family dynamics into account when making a comprehensive estate plan, Toronto estates and trusts lawyers Ian Hull and Suzana Popovic-Montag write in The Huffington Post.
As Hull, co-founding partner of Hull & Hull LLP, and Popovic-Montag, managing partner of the firm, explain, large or blended families are particularly susceptible to an estate battle, as complex dynamics may reduce the likelihood of starting difficult conversations for fear of sparking a fight.
“This reluctance often simply postpones a family fight until after a death, rather than avoid it forever. In fact, the more complex the family dynamics, the more important it is to have the difficult conversations about inheritance before death, to help manage the expectations of beneficiaries who are intended to receive a smaller share of the estate than they may consider to be ’fair,’” they write.
Hull and Popovic-Montag say meeting with family members to discuss an estate plan can decrease the chance of disputes developing after death.
“A family meeting ensures that everyone is on the same page and knows what to expect after the testator’s death. A meeting also allows the chance for the testator to answer questions, provide an explanation with regard to any unequal treatment, and address concerns related to the estate plan,” they write.
A legal or financial advisor can be present at this meeting, they suggest, which may help keep the tone professional and assist the testator in answering questions and explaining the rationale behind their decisions.
Separation and domestic agreements may also factor into an estate plan in families with complex dynamics, Hull and Popovic-Montag note, as they allow parties to contract out of certain statutory entitlements they would otherwise assume after the death of the other. To be legally enforceable, these agreements should be carefully drafted by a lawyer, with both parties to the contract benefitting from independent legal advice, they write.
Another important part of estate planning is choosing the right executor, Hull and Popovic-Montag point out.
“A good executor (also known as an estate trustee in Ontario) can help ease family tension. Some may not realize that an executor does not need to be a family member. An executor may be a friend or even a trust company and the selection of someone neutral to act as executor can be especially important within the context of blended or step-families.
"An executor should not have any pre-conceived notions about how the estate should be administered beyond the contents of the will and other testamentary documents, notwithstanding the intentions of the testator. A family member or beneficiary can perform this role, but he or she should be made aware of the responsibilities of the role beforehand,” they write.
Hull and Popovic-Montag say, communication and sound legal advice are important factors in avoiding estate litigation — and while a lawyer can help set up a solid estate plan, it is ultimately up to the testator to communicate with his or her family about what to expect after death.