5 ways to ensure your children will fight after you pass away

Being a father of four wonderful children is as amazing and challenging as being one of four siblings growing up. One consistent theme in both experiences is that siblings really don’t need good reasons to pick a fight or start an argument. At various ages and stages of life, whether it’s Christmas, a birthday or around the dinner table, children often find themselves quarrelling over who received the bigger / better gifts, or the most favourable scoop of ice cream (past or present). Even when there are instances where one child is provided for more than another, as parents we find ourselves trying to defuse an epic blow up by reminding the other children of a time where they received more than the other. Standard stuff right?

But the stark reality is that things don’t change much in the later stages of life. Siblings still fall into petty scraps, allowing grudges to stick around far longer than they ought to. And parents still find themselves trying to keep the peace. In comparison, where sibling quarrels go nuclear is over structure (or lack there of) and clarity to your will. In the world of Estate Planning and Estate Litigation we have seen a broad variety of disputes, but they all seem to boil down to consistent errors. With that said, here are five ways to ensure your children will fight after you pass away:

1. Provide for them unequally;

2. Keep the beneficiaries in the dark with respect to your estate;

3. Keep yourself and personal representatives in the dark as to what you have lent your children;

4. Allow children or friends to provide your care in your old age without proper and clear payment for services; and

5. Where there is a second marriage, allow your new spouse, after you to pass away, to figure out the ultimate distribution of your respective estates between their kids and yours.

1. Unequal Treatment

Children are predisposed to measure not how much they receive from a parent, but rather how much they receive in comparison to their siblings. Nothing irks like unequal treatment — justified or unjustified.

In British Columbia, a will-maker must contend with the wills variation provisions of the Wills, Estates and Succession Act which allows our courts to interfere with the wishes of a will-maker and rewrite the will for the benefit of a child or a spouse. Estate planning practitioners can and do attempt to find ways of circumventing the wills variation legislation, but these plans are rarely beyond challenge. In other words, if you are going to treat your children unequally, know that perhaps a big chunk of your estate is going to pay for the lawyers in the family feud that you have helped to orchestrate.

2. Keeping Your Cards Close to Your Chest

People avoid drafting wills because they do not like to think about dying. It is inevitable that people avoid difficult topics of discussion. The corollary to this is that people also tend to tell people what they want to hear. In the case of estates, this can lead to beneficiaries convinced that certain promises were made to them, while similar promises were made to others. At trial it will often become clear that a will-maker has permitted and encouraged certain beliefs amongst potential beneficiaries concerning the disposition of their estate while perhaps being uncommitted to those courses of action. The lesson in these sorts of cases is that being up front and forthright about one’s estate plans will require a will-maker to deal with outstanding issues and expectations during their lifetime rather than requiring the Court to speculate about them afterwards.

3. Leaving your Personal Representative a Mess to Clean up

Being an executor or administrator of a contentious estate can be a nightmare. While there is the typical type of estate litigation that arises when a will or estate is challenged, some of the most difficult situations can arise when there is a family business that needs to be sorted out or when a parent has been lending money to a child and not keeping proper records because, after all, it’s “between family”. In those cases, it is left to the personal representative to figure out and gather together all of the funds owed to the deceased. Very often the borrower is not predisposed to coming clean about what is owed. Too often what the old bank records show is only a part of the story. Loans may be forgiven in full or in part but not documented. There is a difference in law between the ability to collect on a loan over time and what by law can be set off when a beneficiary of an estate has also borrowed from the deceased.

A proper accounting of funds owed and the interest agreed to and accumulated with respect to anyone owing a debt to the will-maker — and indebted beneficiaries in particular — can go a long way in creating a sense of fairness amongst the remaining beneficiaries. It is clearly the right of a parent to help out a needy or impecunious adult child even if that creates a scenario of unequal treatment. The question then becomes, in making the estate plan, whether that unequal treatment should be recognized in the ultimate disposition of one’s estate. Further, see point #1 above on whether unequal treatment will ultimately be maintainable or whether one is opening the door to an estate fight. Finally, however, do not leave it up to your personal representative to figure out the financial arrangements you had with indebted beneficiaries or business partners, family or otherwise. Work them out.

4. Quid Pro Quo

Quid pro quo (from the Latin meaning “this for that”) indicates a more-or-less equal exchange or substitution of goods or services. Exchanges can occur where care is provided to a will-maker in return for benefits from the estate. Too often, however, this arrangement creates trouble for both parties. For the person providing care there is always a fear that the “promise” will not be abided by or that this “understanding” is not mutual or the expectation created is simply a mirage that will evaporate should the will-maker become displeased with the care arrangement. Often the promise is not in writing and the amount of care and for how many years is undefined and extremely onerous. On the flip side, elders are too often taken advantage of by caregivers. The aged are often subject to manipulation and suggestion and find themselves in vulnerable situations.

The financial temptation particularly of the elderly is to underpay caregivers while leaving an impression that the caregiver will be rewarded in time. This is a dangerous way of conducting one’s affairs. When the time comes and care and help is needed, pay for it in full and then some. On this score, neither a lender or borrower be.

5. Trust — but Verify

In a second (or third, or fourth…) marriage situation where you have a mix of families and one has to sort through the estate arrangements, considerable care has to be paid to ensure that those arrangements survive one’s passing. Do not leave it to assurances and understandings between spouses and family members, particularly as tax and probate fee avoiding measures are used in the estate plan. It is often best in those instances to create outside oversight with the involvement of third party personal representatives to ensure that your intentions are respected and “thy will be done”.

Managing your estate or understanding your position in a wills dispute can be complex and emotionally taxing. If you are in need of advice on any trust, estate and succession matters, we encourage you to contact us for a consultation to review your case.