The Family War - Winning The Inheritance Battle

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Introduction

As Wills and estates lawyers, we often see families fighting. Over and over, clients caught in a family inheritance battle tell us that they had assumed this sort of thing could never happen to them.

Our experience proves one thing: It really can happen in your family.

(a) Warning Signs: Danger Ahead!

What you are about to read are common situations that may indicate that a Family War is looming in your family. If you recognize any of these, beware.

1. Your mother and your sister have a very large joint bank account. In fact, this large bank account represents the money from your father’s estate that went to your mother under his Will. The only reason for your sister being named as joint owner is because she lives in the same town as your mother and you live 40 miles away. You have been told that as a joint owner, that joint account will all go to your sister when your Mom dies.

Will your sister share the joint account with you when Mom dies?

2. Mom always trusted you and you always looked after her. She appointed you under her financial Power of Attorney so that you could help her in managing her financial affairs. Always acting in Mom’s best interests, you bought what she needed and made sure she was always provided for in the best way possible. Your sisters, who were spared the burden of managing Mom’s affairs, never seemed to mind these arrangements. However, after Mom died, they suddenly began to question many of the expenses that you paid out of her bank account using her Power of Attorney.

You sense a new feeling of mistrust when they insist on a full written accounting from you for the first time.

Are you prepared to answer their questions?

3. Mom and Dad always managed to settle the rumblings over who would get certain weekends at the family cottage during the summer. Your sister would, if she had her way, take all the holiday weekends for herself, leaving the weekdays for you and your brother. She has never changed her attitude. Although Dad has now passed away, Mom still has the ability to keep her in line. What will happen once Mom passes away? You see trouble brewing.

Will you still be able to use the cottage when you want to?

4. Your older brother brags about how he is always suing people and winning. For example, he likes to talk about the fact that he sued the store owner for defective merchandise, and of the time that he sued the city because he slipped on some wet pavement. He is proud of the fact that he is always wearing people down until they give in, and he lets you know that he is not afraid to go to court. Your older brother is a bully, and to him, litigation is a game.

Will you be able to stand up to him if he starts a lawsuit over your parent’s’ estate?

5. Your sister-in-law is very controlling. When your brother got married to her, he stopped coming to family functions. She is also very cold to you. Now you find that your brother is following her lead. Your brother rarely sees Mom anymore.

When Mom dies will she push your brother into a battle with you over Mom’s estate?

6. Mom confides in you, always telling you how much she trusts you. Recently, she has told you that because you are the eldest child, you are the one who will be the best to look after her estate. She tells you this in confidence, wanting you to promise to say nothing to your brothers and sisters. She then appoints you as sole executor of her estate.

Will your siblings be so jealous that they will look for any way to sue you as Mom’s executor?

7. When you and your siblings get together at Mom’s house, everyone always admires the expensive painting in the living room. Mom does not want to make any specific provision in her Will to cover this painting. She believes that all of her children will “work it out.”

How will you feel if the painting ends up hanging on your sister’s wall?

8. Your brother lives well above his means. In fact, he has a job that pays nowhere near enough to support his lifestyle. He is swimming in debt, but feels that in the end, he will have nothing to worry about. His reasoning is that his inheritance from your parents will solve all of his financial problems. Your brother is a “waiter”—he is waiting for his inheritance.

Will he fight to get as much as he can to support his lifestyle?

9. Your sister has moved away and lives on the other side of the continent. Except for a telephone call at Christmas, she has no contact with the family. Mom tells you that it would be unfair for your sister to receive as much as you under her Will. Mom intends to leave your sister a very small amount.

Will your sister accept a lesser amount than you?

10. Everyone always laughs about how bad Dad’s memory is. He is always forgetting where he puts his keys. He repeats the same stories over and over again. There are times when he calls you by your brother’s name and calls your brother by your name. But now Dad wants to give you the down payment for your new home.

Will your brothers and sisters challenge Dad’s gift to you, alleging Dad’s lack of mental capacity?

11. You are the only one of your siblings who sees Dad regularly. The others are too busy with their own families. You take Dad to all of his doctor’s appointments, you take him shopping, and you take him to do his banking. When it comes time for Dad to make a new Will, he tells you he wants to leave you more than your siblings. He asks you take him to your lawyer.

Will your siblings claim the Will is invalid because you pressured Dad into a making a new Will?

12. Mom and Dad are aging, but doing well at home. They have repeatedly made it clear to you and your sister that if anything happens to them they want to remain at home because they do not like the idea of being in a nursing home. You want to follow Mom and Dad’s wishes. Your sister feels that she knows better.

Will a Court have to decide what is best for Mom and Dad?

13. You and your brother disagree about everything. Mom has appointed you and your brother as joint executors of her estate.

What happens after Mom dies and you can’t agree?

14. You have always worked hard and earned enough money to live comfortably. Your brother is a no-good slouch who cannot hold a job and lives on welfare. From the way Dad is talking, you get the feeling that he believes that your brother needs the inheritance more than you do.

Will you be upset and look for ways to get what you think is fair?

15. Over many years, you have built up the family business working side-by-side with Dad while your brother was getting a university education. When your brother occasionally drops in to see you at the business, he tells you how you should “modernize" and make changes in the business. You realize that with all of his university education, your brother knows absolutely nothing about the business. Last month, at a family gathering, Dad told you that he is going to divide everything equally in his Will.

How are you going to be able to deal with having your brother as your business partner?

16. Mom and Dad gave your sister money for university. They gave you a lot more money to help you buy your new house.

What happens when your sister finds out that you got a lot more than she did?

17. For years, Mom always talked about what she was going to do in her Will. When you asked her if she ever made her Will, she told you she will get around to it as soon as she has time.

What if she dies without a Will?

18. Dad believes that if you want it done right then you do it yourself. He fixes his own car and repairs his own house. Now he is going to the internet to find out how to draft his own Will.

What problems will Dad cause by drafting his own Will?

19. After Dad passed away, Mom appointed Uncle Fred as her executor because Uncle Fred was good with finances. Years have now passed and she has decided to name you and your brother as her executors because she no longer has confidence in Uncle Fred. However, she has been procrastinating and you and your brother are still not appointed. Last week, her doctor found her to be mentally incapable. It is now too late for Mom to make a new Will.

Will Uncle Fred follow what you want done with Mom’s estate?

20. Mom got remarried three years ago. You are her only child, but her husband has three daughters from his first marriage. You always felt that Mom would protect you if anything happened to her. But now she is going to a lawyer to do her Will and tells you that she is going to leave everything to your step father. You know that this will include your grandmother’s heirlooms and very expensive jewellery, which Dad gave to her. She says not to worry because your step father will leave these things to you in his Will.

Will your step father make a Will that respects your Mom’s wishes?

21. Dad appointed you under his financial Power of Attorney and now Dad is incapacitated. You begin to examine all of his assets and liabilities. In his papers you discover Dad’s note that your brother borrowed $10,000 from him. You mention this to your brother, who says that he paid that loan off. Your sister swears to you that Dad told her before he became ill that the loan was outstanding. You ask your brother to show proof of payment and he says that he repaid Dad in cash.

Will your sister force you, as your Dad’s Power of Attorney, to sue your brother to get the money back?

These warning signs demonstrate how issues that may not be problematic while Mom and Dad are in charge can ultimately turn into a Family War when the parents lose their mental capacity or die. While the parent is alive and healthy, the children’s thoughts and feelings are often suppressed and issues are glossed over. The “referee” parent is still on the scene, keeping a lid on any potential flashpoints. But, when the parent is gone, the restraints are lifted and sometimes these flashpoints explode into a Family War.

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