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Estates & Wills & Trusts

Hockey fights are way down. Estate fights? Not so much

By Ian Hull

Have you watched an NHL game recently? If you have, you may have noticed a significant change in one high-profile aspect of the game: fighting. It’s declined rapidly. Just 10 years ago, fighting occurred in about 40 per cent of games. That number today is 17 per cent. TSN has a good analysis of why it’s happened.

One of the interesting points in the article is that the change has happened relatively organically. There may have been a few rule tweaks along the way that have helped to reduce fighting, but the wider pool of fast and skilled talent available today has all but wiped out the role of the team enforcer.

Unfortunately, the arena in which our firm operates – the estate litigation arena – has seen no such reduction in conflict, at least of the legal kind. And if there ever is a reduction in estate disputes, it won’t happen organically. It will happen because people take active steps to reduce the chance of estate fights during the planning stages.

We’ve said it before many times – there is no substitute for effective communication in the estate planning process. A carefully thought out estate plan is one half of the process. The other half is disclosing the details to your family members and working through any areas of concern.

This Globe and Mail article sets out five reasons why family conflicts occur over estate provisions:

  1. Perceived inequity or unfair distribution
  2. Lack of trust among family members
  3. Distribution of sentimental items
  4. Unpopular choice of executor
  5. Being surprised by the contents of a will

Planning and communication can go a long way to addressing all five of these potential conflicts.

If family members object to your proposed estate plan

Of course, there are no guarantees, and even with the best of communications one or more family members may refuse to accept your proposed estate plan. If that occurs, and you’ve already amended your plan to satisfy as many of the concerns as possible (without sacrificing your personal goals), consider including an in terrorem clause in your will that provides that anyone challenging the will forfeits all gifts made under it. We’ve previously blogged on this particular type of in terrorem condition.

You may also want to prepare detailed notes about your family member’s concerns and the steps you’ve taken to satisfy them. They may be useful in protecting your estate from a successful challenge, although they won’t necessarily prevent the disgruntled family member from launching that challenge.

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