The Family War in the Media

The Toronto Star

How To Keep The Peace In Inheritance Row

James Daw

Families sometimes find themselves at war after an elder dies, and the executor of the person's will may get caught in the middle. Just becoming the chosen one to deal with a relative's estate could reignite smouldering jealousy and suspicion.

Worse still, your new position of honour could get you hauled into court, humiliated, isolated or saddled with paying the will-writer's tax bill. But tips in a new book by three Ontario wills and estate lawyers could help spare some lasting grief.

Jordan Atin of Hull & Hull LLP and Barry Fish and Les Kotzer of Fish & Associates lay out several strategies in The Family War, Winning the Inheritance Battle, including how to successfully exclude the black sheep, overturn a deathbed bequest to the family bully and get your share of the estate without being cast as a gold digger.

But, true to the spirit of an earlier Fish/Kotzer collaboration called The Family Fight, their latest book urges conciliation over confrontation, peace over power plays. Their caring advice could save a lot of executors from undue hassles, and families from destruction.

"Rarely can the winner of a family war declare that his or her victory was absolute," warn the authors. "You must look long and hard to find someone who takes a brother or sister all the way through the court system, completely conquers them and simply doesn't care about the emotional fallout that such a victory leaves in its wake."

"A family estate battle is likely to haunt you for the rest of your life, and your family for generations to come," the authors write. "One client told us (it was more important to be able to) still talk to his brother, his niece and nephew at a family wedding."

The 221-page book is written in simple language and includes a sampling of real life stories where greed overtook common sense, such as one about the family that fought in court over a pair of deer antlers.

Even where there are no valuable assets to inherit, family fights can erupt, the authors warn: "Battles among children are very often over memories rather than money."

Their advice for amateur executors is extensive, but includes the following suggestions:

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Check the date on the will. If it was signed before the will-writer remarried, and did not contemplate that marriage, then, in Ontario, the marriage will invalidate that will. The spouse may be entitled to continued support, and where there is no valid will, the spouse will be entitled to the first $200,000 of the estate, and a percentage of the remainder, depending on the number of the children.

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Every decision you make, every dollar you spend, will be open for review and could be challenged in court by the beneficiaries. So, you may need to consult a lawyer, a property appraiser, an investment adviser, a bookkeeper and a tax accountant. Just be careful what you spend, and avoid appearing to have advisers favourable to you.

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Keep a journal, receipts and careful financial records to substantiate what you have done. Collect all the assets, including outstanding loans, and protect the estate. Attempt to get maximum value when selling any assets. Do not buy or claim any assets for yourself, unless the will says you can and unless you get consent from other beneficiaries or a judge.

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Avoid needless suspicion by consulting the beneficiaries and keeping them abreast of your progress. Live up to the terms of the will, unless all the beneficiaries are adult and mentally competent and can agree together to change the terms of the will. For example, they could agree to reverse earlier gifts or changes in ownership to enlarge the estate if they thought it would be fairer and promote greater harmony.

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Be prepared to deal with people left out of the will, dropped from an earlier will or left a share of the estate that does not reflect a special role that person may have had. The person may have a valid claim, such as if he or she were dependent on the deceased person, provided unpaid care or added to the value of the will-writer's property.

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Don't be too quick to distribute the entire estate. If you come to the end without enough money to pay all debts, income taxes or legal bills, you could become personally liable to pay. Also you might not get to change your mind about accepting compensation — up to 5 per cent of the estate — after discovering how big a job you were assigned.

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It's not even a simple matter to resign as the executor. You may need court approval, and you may not get approval if you have started the job without finishing it. A fight over who will be executor could eat into the estate.

The Family War ($28.95 from Continental Atlantic Publications Inc.) is written for a North American audience. So references to estate and tax law are general. While the references will generally apply in Ontario, they may not apply precisely to every jurisdiction.

The book is not yet in stores, but copies may be ordered online at http://www.thefamilywar.com, or by calling 1-877-439-3999.