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As I recently searched and reviewed several cases for blog post topics, I became aware, or was more likely reminded, that there are many families that have very unhealthy dynamics which either surface or intensify upon the death of a loved one. Furthermore, there are many cases of historical sibling rivalry and animosity, yet parents have appointed these very siblings to act together as co-estate trustees. This is a role that requires cooperation and joint decision-making unless the will stipulates that estate trustees can make decisions by a simple majority or that one estate trustee has a veto. However, there is good reason to avoid majority or veto clauses amongst family members, as experience shows that they can cause division and strife rather than facilitating the decision-making process.
Regardless, there are scores of family members who are dragging each other to court because settlements of uncomplicated estates have been unjustifiably delayed, estate assets have allegedly been misappropriated or mismanaged, the court is being asked to remove estate trustees for various kinds of misconduct, etc. As one of too many examples, Kar v. McCarvell Estate, 2012 ONSC 394 (CanLII) is the case of two brothers appointed as co-estate trustees in their mother’s will. The estate had only a few assets of insignificant value. Unfortunately, due to the obvious tension and animosity between the co-estate trustees, the estate administration, which should have been uncomplicated and straightforward, was paralyzed for five years, preventing the distribution of liquid estate assets amongst the four beneficiaries (children of the deceased). Each blames the other for the failure to complete the distribution and it has led to potential costs to the beneficiaries. The court agreed that this situation could not continue and removed both estate trustees.
Why this is happening with increasing prevalence amongst our society’s families? Is it just a matter of the love of money being the root of all evil, as the ‘Good Book’ says? Do we need to bolster and better promote family counselling to resolve these issues before they are taken to court? Do we need to examine and change the values we are teaching our children and the environments in which they are being raised? Perhaps we need more estate planning education, including encouragement to have family conferences where specific elements of estate plans and the reasoning behind them can be discussed, hopefully to get buy-in from all stakeholders. Unfortunately, many lawyers feel that estate planning information and warnings to prepare a will, for example, too often fall on deaf ears.
Obviously, the issue is multi-faceted and very complex, yet worth examining to decrease the number of court cases. Again, the level of family animosity and tension being displayed before the courts warrants a thorough search for root causes and implementation of sound solutions.
If you would like advice regarding how to prevent negative family relations from affecting your estate plan, please contact Andrea Kelly. Referrals to other professionals, including family counsellors, financial advisors and tax advisors are available.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
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