Family discord is not unique. In fact, avoiding family disputes is one reason to plan an estate carefully. However, merely planning an estate is not sufficient to avoid a family dispute. It must be planned in the right way to avoid disputes.
There are many elements which enter into a family dispute about estate planning. Here are a few:
- Bad family dynamics
- Unfair disposition
- Lack of Communication
- Bad Dynamics
Often, there is little that can be done about bad family dynamics. When there are deep rifts in a family, many times there is little that can be done, except to plan for the possibility of a dispute. For example, a no contest or “in terrorem” clause should be considered. Such a clause disinherits anyone who contests the estate plan. This works especially well when coupled with a substantial bequest.
- Unfair Disposition
When there is a disposition which is likely to be viewed as unfair, it increases the likelihood of a contest. But, fair is not always equal. For example, if one child has special needs, it may be fair for that child to receive a greater portion of the estate. Also, if one child has been the parents’ caretaker, it may be fair for the caretaker child to receive a greater portion of the estate.
- Lack of Communication
Often the biggest factors in a family dispute is lack of communication. There may be bad dynamics and what is perceived as an unfair disposition. But, when that disposition is a surprise, then the dispute escalates. The client should be encouraged to communicate their wishes to their family. This will increase the likelihood of their wishes actually being carried out and decrease the likelihood of a contest.
An example in which all three of these factors existed is the current legal battle involving billionaire Sumner Redstone. Sumner Redstone is the primary owner of Viacom and CBS. His health is failing and his family is involved in a bitter battle over his affairs, to read more about it, click here.
A good estate planning attorney will be mindful of these factors, and will advise the client how to minimize the risk of a contest.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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