A question was recently posed to Ken Gallinger, an ethics columnist with the Toronto Star: was one of two brothers who received his father’s estate ethically obliged to share his entitlement with his disinherited brother? The questioner stated that he was shocked that his father chose to make such a distribution when there was no indication that the father intended to treat his sons other than equally in his Will. The advice of Gallinger was along the lines of: no, you are under no obligation to share the bequest…but… you would probably feel better if you did.
Estate litigation is one of the few areas of law where you could conceivably see the same question posed to an advice columnist as to a lawyer. Reading the exchange between the questioner and Gallinger gave me pause to consider what my answer would be and, more to the point, to consider that I had yet to be asked that question.
Lawyers can sometimes present as insensitive, hiding the fact that they have a personal, moral or spiritual viewpoint because it does not fall within the parameters of their retainer agreement with their clients. Paid by their clients to provide legal advice, lawyers are not expected to opine on the moral dilemma presented by an unexpected windfall. Will challenges are concerned with ascertaining the true intentions of the testator, not with determining whether those intentions were motivated by bitterness or spite.
In concluding his response to the question posed, Gallinger made the comment: "sometimes it’s better to be generous than right." Enough said.
Have a great weekend,