A “good” estate plan and will should focus on the emotional side of family dynamics, says a senior lawyer in the field.
Yet often, faced with a barrage of tax and legal issues and challenges, this side of advising clients is overlooked and/or overshadowed, says Jordan Atin, senior associate counsel at Hull & Hull LLP in Toronto and chair of the Ontario Bar Association’s trusts and estates section.
“Because of our work in the estates field, we get a unique perspective on families and family dynamics,” says Atin, author of The Family War - Winning the Inheritance Battle, and a certified specialist in estates and trust law. “This perspective is crucial, because at the heart of most estate plans, and almost certainly every estate dispute, lies family dynamics.
In reality, “a will is usually the last thing that a parent says to his or her children,” says Atin.
As such, the document “creates a definitive, lasting record of the relationship between parent and child and among a child and his or her siblings. That reason alone explains why estate disputes are so hotly contested,” he says.
And when the will is contested, when estate litigation does occur, it is often about “correcting” versus “upholding,” that lasting record,” he suggests.
Atin points out that lawyers generally focus on providing their clients with a good estate plan - the emphasis is on ensuring that the plan is sound from a technical and practical viewpoint.
“From a technical point of view, the will has to comply with income tax and trust law. For example, the law against perpetuities,” says Atin. Further, “A good practical estate plan will have considered the proper mechanics to permit a smooth estate administration; for example, providing for tie breaking in the event that the executors are deadlocked.”
But Atin feels that lawyers need to address their client’s family dynamics, too, given that at the heart of most estate litigation are long-term relationships viewed by family members from often very different viewpoints and interpretations.
“Alongside the practical and technical aspects, do we do as good a job of raising and giving advice on the emotional effects of the will that arise after the testator has passed away?” he asks. “Do we contemplate with our clients how the words in the will are going to resonate with the beneficiaries? Do we consider how the beneficiaries are going to react?”
So when advising clients, it’s important to remember to draft an estate plan that acknowledges that any potential future disputes are “about relationships which have continued for 30, 40, even 60 years,” he says.
“The fact that the estate plan is simple or complex does not matter,” says Atin. “It is history that matters.”
Which explains why beneficiaries unhappy with an estate plan are often heard to express sentiments based on “principles” that date back to their shared childhood, such as, “It’s not fair,” or, “Mom/dad wouldn’t really want it that way.”
Estate litigation practitioner Sender Tator agrees with Atin about the need to be sensitive to family dynamics. And why it’s so important to help clients anticipate the emotional responses that may come about when their beneficiaries read what’s in the will.
“Ideally, you want to sit down with the family and help them work through family issues and concerns at the time the will or trust is being created,” says Tator, a partner at Schnurr Kirsh Stephens, in Toronto. The firm specializes in estates, trusts, and mental incompetency litigation.
“More often than not, people don’t take this route to estate planning, so what does happen is unhappy beneficiaries seeking out lawyers, looking to ‘right’ what they consider is the ‘wrong’ that’s been dealt them by way of the will,” he says.
So whether it’s “a common law spouse in a battle with adult children from a first marriage, or a situation where one child receives a greater gift than his or her sibling, emotions are running high,” says Tator. “As a lawyer, you have to remember that there’s a ‘history’ . . . . Once upon a time the two siblings were youngsters running around playing outdoors.”
As a result, in estate litigation - in a similar way as with estate planning - it’s always important to look at not only the legal issues, but also to ask the client questions, such as: “What is your brother like? How do you anticipate your stepmother will react?” says Tator.
Obtaining background will help to achieve two goals, he says. “You’ll gain a better understanding of what your client hopes to achieve, and secondly, more recognition of what the person on the opposite side is looking for, based on the history of the relationship and its dynamics.”
Tator says that this conversation about the emotional aspects surrounding the will or trust may have to be revisited. “Often clients don’t tell you pertinent information during the first conversation. The fact that your client hasn’t spoken to his sibling for 10 years is certainly something that may be very relevant,” he says.
“I think emotion often gets in the way of legal or practical realities; your client is often looking for a certain result, which legally may not be feasible,” says Tator, noting that mediation (mandatory in estate and trust litigation in certain centres in Ontario) is often a good forum for bringing emotions to the table in a setting “where people have their say and you can craft a settlement without the time and costs associated with court proceedings.”
“I think there’s a huge value for clients in putting the case behind you, not letting it hang over your head. Sometimes fences can be mended when there’s an acknowledgment of what might have been bruised feelings,” he adds. “I’ve had clients in advance of mediation tell me, ‘There’s no way they [the opposing party] will settle,’ but lo and behold it does.”