Wills: Avoiding Family Fights by Norman Pickell

In "Wills: The Basics", I talked about the need for a will and why it is important to keep it up to date.

Now let's assume that you have a will and that it was expertly drafted by a lawyer.

Even a well-drafted will can sometimes cause a family fight after you die.

Your will may state precisely what you want to have happen to your estate. However, it only takes one dissatisfied beneficiary or person who thought he should be a beneficiary to start a lawsuit against your estate.

Most people want to do the right thing when they prepare their will. But what is the right thing? Are fair and equal the same thing? Not necessarily.

Suppose you have a farm but not all family members are actively involved in the farm. Maybe you have a retail business. One of your daughters works in it with you. But you have two sons who are working elsewhere and are not interested in becoming owners of the business.

What do you do when you die? Do you leave everything to your children equally, or do you take into consideration who is working on the farm or in the business with you?

Estate planning is a delicate task that often breeds conflict.

Jill Falloon, of Manitoba's Department of Agriculture, has written an excellent article entitled "Fair Versus Equal: What do Parents Owe Their Children?" It can be found at http://ucanr.org/succession/fair-equal.doc. While it speaks specifically about transferring the farm to the next generation, the principles apply equally as well to other types of assets.

Maybe the asset that is being considered is a cottage. Passing down the family cottage to the next generation can become very complicated. Issues that need to be considered include capital gains tax, how ownership is to be held, the use of the cottage and the maintenance of it. If not handled properly, these issues can turn a place of peace and tranquility into a battle zone.

If your children are still dependants, you must make adequate provision for them upon your death. But if they are adults, there are no right answers to the question "what do you owe your children."

What if one child has been caring for her elderly parents while the rest of the children only come for an occasional visit. Does she receive more when the last of her parents dies?

I had an estate a few years ago where the father died and left everything to his grandchildren - bypassing his children altogether. When the will was read, the children were not very happy.

Sometimes I tell clients that they can leave everything to charity and there isn't anything that their children can do about it.

Rivalries sometimes exist among your children. The spouses of your children can also cause conflict.

Second marriages can create tensions between the new spouse and the children from the first marriage.

Who should be involved in your estate planning? When I ask this question, I am not referring to your lawyer, accountant and financial planner. Of course, they should be involved.

Usually when you make a will, you do not discuss the subject ahead of time with the beneficiaries or with those who thought they should be beneficiaries. Sometimes you will tell these people afterwards what your will says.

Should you involve your spouse, your children, your children's spouses and your adult grandchildren in the planning of your will? Years ago most people probably included their spouse but excluded the rest of that list. But today, while the final decision is ultimately yours, you may want to consider including your family in the planning process.

Family members are less likely to challenge your will if you have given them an explanation of the reasons why you want to deal with your assets a certain way and they have had an opportunity to tell you their opinions about your plan.

The way to do this is to have a Mediated Family Conference.

For more information about a Mediated Family Conference, please see my article "Wills: A Mediated Family Conference".


Norman Pickell is a mediator and lawyer based in Goderich, Ontario. For more information about wills, estate planning or mediation, please visit his web site at www.normanpickell.com.