Tag: Family Conference
Many Canadians have taken the precaution of making a will, and chances are most of those individuals will have their estates administered in accordance with its terms. Still, some of those individuals will pass away with their estates becoming mired in litigation despite the terms of their testamentary documents. Legal disputes over wills often arise out of unequal gifting, allegations of inadequate support for dependants, and/or a testator being viewed as mentally compromised and/or unduly influenced to make a will. In many of these cases, a common theme is a lack of communication between the testator and the beneficiaries. Some ways one can avoid their estate becoming the subject of the family fight include:
- Know one’s assets and liabilities – prepare a comprehensive inventory of assets (e.g. real property, personal property, investments, savings etc.) and debts (e.g. mortgages, loans etc.) so one knows all of what will be dealt with upon his/her death; giving a copy of this to your executor will help him/her get the job done;
- Decide who is to administer and how one intends to distribute – choose the person or persons suitable to administer the estate, and determine how to best gift the assets. Seek legal or financial advice to assist in gifting in the most cost-effective manner;
- Document one’s intentions – documenting intentions is critical, as such documentation (e.g. a trust, a will or multiple wills) is the foundation of one’s wealth transfer plan;
- Be timely – avoiding delay in estate planning can mean the difference between a smooth administration and one’s estate trustee(s) contending with allegations of mental infirmity and/or undue influence; and
- Discuss estate planning – meeting with family members to explain one’s estate plan can reduce the chance of disputes; one’s legal and/or financial advisor can take part, which can keep tensions in check. If the family members sign a document acknowledging the estate plan, which we have blogged about here, this can guard against the estate being the subject of legal proceedings.
Of the foregoing precautions, communications between testator and beneficiary (as well as with those who are excluded from the gifting) is likely the most difficult task to undertake, particularly in a family fraught with internal strife. Drafting lawyers may want to keep in mind the proposal of a family conference in cases where it is evident that family discord will result from the will being made. Although a trying process for the family to participate in, it may ultimately result in an estate saved from a lawsuit and in family harmony preserved.
Thanks for reading,
There has been a lot of attention in Ontario lately about the intentions of litigants quarrelling over inheritance. As mentioned in a recent blog this can even happen in advance, in the form of capacity litigation. In recent cases the Court has made it clear that it is incumbent upon not only the parties but on counsel as well to cooperate sufficiently to move the litigation along. At threat of costs payable by the parties or even their solicitors, all concerned are generally expected to work together to come up with a timely litigation management plan to efficiently dispose of the matter.
Recent Ontario decisions illustrate that greed and rivalry amongst family members will not be tolerated in our courts. However, this is by no means exclusive to Ontario. In the B.C. case of Calbick v. Warne we see the same familiar scenario. The testator in this case, the parties’ mother, knew her children would quarrel after her passing but still couldn’t do anything to prevent it.
What more could she have done? In such cases, it might be appropriate to have a family conference to mediate the squabbles prior to death, especially if the testator feels that he or she can have a moderating influence on the family and can explain the reasons behind his or her decisions with the assistance of a professional and neutral mediator. If intentions are understood by the entire family, and if everyone agrees to abide by them in advance of your passing, then they might stay on the same page after your death and there is a reasonable chance of avoiding the fight. Who knows – maybe the rivalry can even be solved once and for all in such an environment. A nice bonus.
Earlier this week I blogged about proportionality, which is now a codified requirement in the Ontario Rules of Civil Procedure. It is a common sense consideration, but unfortunately one that is not all that common in estates litigation where emotions run high and hurt feelings have been building for a lifetime. Be that as it may, litigants be warned, gone are the days when estate litigation was “free” with the expectation that the estate would pay costs for everyone.
Sharon Davis – Click here for more information on Sharon Davis.
During Hull on Estate and Succession Planning Episode 39, we continued our discussion on the Family Conference, focusing on the actions to be taken in regards to non-participating family members. We also discussed the importance of documentation and defined will challenges.
READ THE TRANSCRIBED PODCAST
During Hull on Estate and Succession Planning Podcast #29 , we discussed the need for disclosure of all financial information during the family conference.