Wills: Avoiding Family Fights by Norman
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
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
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
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
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