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Estate-planning tips on how to avoid family inheritance battles

by Wayne Cheveldayoff, 2006-12-14

Wills and estates lawyers often see families fighting – caught in an inheritance battle that the deceased never expected would happen.

The fights can revolve around the fairness of how a will divides or fails to divide assets, including family heirlooms, the behaviour of the named executor, demands placed by other beneficiaries on the executor, and so on.

The numerous battle flashpoints are highlighted in a couple of books on the subject: (1) The Family Fight, Planning to Avoid it, by Toronto lawyers Barry Fish and Les Kotzer of Fish and Associates; and (2) The Family War, Winning the Inheritance Battle, written by Fish, Kotzer and Jordan Atin of Hull and Hull LLP.

Anyone wanting to take action to avoid inheritance battles would be wise to consult the books, which are available from websites and

To put the problem in context, the authors 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.”

Put another way, the sibling rivalry of the adolescent years could return with a vengeance focused on disagreements over control, money or heirlooms.

Another recipe for problems is the parental attitude that “the kids can sort it out after I’m gone.” Leaving things uncertain is an unnecessary burden on the children and can lead to legal battles, the authors explain.

The website and books leave no doubt that the whole area of wills and estates is very complicated and full of minefields.

Everyone should consult a lawyer in making out a will because the will kits sold in stores or over the Internet are just not comprehensive enough for most people’s circumstances.

A lot of thought has to go into the provisions of a will and this may involve extensive communication with the people who will inherit. The will shouldn’t be a secret.

In planning their affairs, parents shouldn’t assume good will between their children, or that equality in a will is always fair, or that a second spouse will protect and be generous to children from a first marriage.

Keep in mind also that children don’t always fight about money, as sometimes it may be over a cottage or personal items like china or a special gift they have given.

The authors also point out warning signs of potential battles ahead for children who are given powers of attorney to help manage the parent’s financial affairs, or share a joint bank account with the parent to facilitate things, or are named as executors in the will.

If you are an executor, certain situations can lead to you being sued by other beneficiaries or accused of unnecessary delay. Also, if you were the child who helped the parents in their final years and had a joint account with them, suspicious siblings may demand full, written accounting of all previous activity in the joint account, or may make accusations that you manipulated the parents to obtain a unfair share of the estate or family heirlooms.

Some messy situations can be avoided if you as executor communicate fully with the beneficiaries, but you may still want to consult a lawyer about your obligations and to deal with any pressures being directed your way.

Estate planning is not just for the rich. Everyone needs to consider carefully what they will be leaving behind for others to deal with.

Wayne Cheveldayoff is a former investment advisor and professional financial planner. He is currently specializing in financial communications and investor relations at Wertheim + Co. in Toronto. His columns are archived at and he can be contacted at

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©2006 Wayne Cheveldayoff