Rest in Peace: How to Manage an Estate Dispute Without Inheriting Heartache

By Zinta Harris

Are you facing an inheritance war following the loss of your loved one?

We have all heard the horror stories of epic legal battles that follow the death of a family member. No one really wins. Legal costs decimate hard-earnings inheritances, and family relationships are destroyed forever.

We often think that won't happen to us. Until

• Language: English
• Publisher: MacMillan Company Limited
• Release date: Nov 19, 2018
• ISBN: 9780648424215

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there’s a way to do it better - find it.

THOMAS A EDDISON

INTRODUCTION

introduction

AN ALL TOO COMMON TALE

It was a Friday afternoon when Barbara called in to my office. She was at the end of her tether and looking for legal help. She was an executor of an estate, and she had just been served with court proceedings which, among other things, sought costs orders against her personally.

Barbara was a retired doctor and had agreed to act as a co-executor for Tom and Mary when they were her patients years ago. They knew then that there might be trouble – but no-one could have predicted just how much trouble was coming their way.

Barbara proceeded to tell me the story.

Tom and Mary had been married for over thirty years, but it was their second marriage and their family made the Brady Bunch look small – Tom had seven adult children and Mary had five. Sensibly, they had decided not to expand the family by having children of their own.

Unlike the Brady Bunch, theirs was no happy family. Tom, had difficult relationships with every one of his children apart from his youngest daughter. The others had never forgiven him for their own upbringing, and they never understood why he walked out on their family. They didn’t want anything to do with their father, even after he reached out to them.

Tom had met Mary at the local church. Mary was the one who got Tom to stop focusing on the mistakes he had made in his past and to start focusing on what he was going to do about his future. Soon their friendship blossomed into more, and they made plans to marry.

Tom had walked out on everything and agreed that his first wife should have their house, because she was looking after their children. So, Tom came into the relationship with nothing but the savings he had since his divorce. On the other hand, Mary had scrimped and saved with her first husband to pay off their home. When her first husband died, Mary inherited that house. Mary also had savings of her own.

Tom had been brought up on the land, so when a local cane farm came up for sale, Tom and Mary pooled their savings to buy it and Tom started working the property. As Mary’s children left home to study and work in the city, Mary and Tom decided to sell Mary’s home to renovate the worker’s cottage on the farm making it into their home.

After fifteen years of living on the farm, and after severely hurting his back one harvesting season, Tom and Mary decided to sell up and move closer to Mary’s family by the beachside to retire. They found a one bedroom unit walking distance from the beach and were thrilled to secure a buyer for their farm so that they didn’t have to move twice. The mortgage they had would be paid out, and they would have enough in surplus to help them live out their retirement modestly.

Tragically, Tom died before ever setting foot in their beachside retirement unit.

And so the dispute begins

Mary was devastated. Her children rallied around her and helped her as best they could to finish up the packing and to make arrangements for Tom’s funeral. Mary had found Tom’s will and was relieved to see Barbara named as her co-executor. She would have someone to help her.

They couldn’t believe their eyes when the first lawyer’s letter arrived in the mail soon after Tom’s death. The letter was full of demands and ‘rights reserved’ and notices given to advise that Tom’s estranged children intended to make a claim against his estate. Mary was being told to suspend contracts for both the sale of the farmhouse and the purchase of the new unit. Tom’s children wanted their share of everything – and they wanted it now.

Charming. Not even an expression of condolence had been given, not that it would have meant much in the context of the letter that followed. Tom’s children clearly weren’t grieving him – but they were hell bent on letting loose decades of pent-up anger.

As soon as she got this letter, Mary rang Barbara. Even though years had passed, she dropped everything and made the trip out for Tom’s funeral and so they could work out what to do next.

The best laid plans of mice and men

Tom and Mary had prepared their wills soon after they were married, and again once they purchased the cane farm. They bought the farm in joint names, setting it up legally so that each could give their fifty percent share to their own children. Their mirror wills gave each other the right to live in any house they owned jointly for life, so that at the least the other had a place to live peaceably until their own death. After the other died, their children would then take the estate. Tom’s children would share Tom’s half, and Mary’s children would share Mary’s half. Tom and Mary had explained all of this to their children. None of them complained about the planning being unfair at the time, although it was clear that Tom’s children didn’t care too much for their new stepmother. All in all, the planning was done as well as it could have been.

Despite the estate being very modest, Tom’s children learned quickly that there would be a surplus generated once the farm property was sold and the unit was purchased. So, their solicitors issued court proceedings claiming further provision from their father’s estate, even though they knew they would get one hundred percent of that estate when Mary died.

Sadly, the proceedings were protracted and acrimonious.

All the while, Mary was not able to proceed with settlement of both property contracts due to the threat of litigation.

Given the estate’s costs were already mounting up, Mary decided, on a purely commercial basis, not to argue further and to pay Tom’s children a settlement sum. Once that sum was paid, Mary would be free to proceed with the contracts and, it was hoped, to get on with living her life.

On and on it goes

But Tom’s children did not stop there. Payment of the settlement sum only supplied them with a further fighting fund. Tom’s children then complained that the funeral should be a cost borne by Mary personally (and not paid from Tom’s estate) because they had not attended it. They then began making demands for return of family heirlooms. After several more months of arguing over the existence or otherwise of the likes of grandma’s china tea set and grandad’s fob watch, Barbara helped a now highly distraught Mary trawl through old boxes of items that had been stored in the farm shed and the home, locating what they could to deliver to Tom’s children.

Mary’s own health had by this stage deteriorated. She then discovered that she had cancer. A few stressful years later, Mary died.

It was over, or so Barbara thought, but it wasn’t. Barbara was next in the firing line.

By this stage, even Barbara’s health had begun to suffer. She, too, was losing sleep. Every time another email came in, she would feel her stomach lurch. At the time of her phone call to me, she’d received the fifth letter in as many weeks demanding answers to questions she believed she had answered. The final letter attached court proceedings against Barbara personally.

No winners, only losers

So how does the story end? Thankfully for Barbara, it did end after she came to see us. The court proceedings were managed and the outstanding questions answered. Tom and Mary’s unit was sold, with half of the proceeds paid into Tom’s estate account. We then assisted Barbara to finalise the estate administration so that she no longer felt stressed with the burden of managing that process.

Sadly, by this stage, the estate over which Tom’s children had been fighting was significantly diminished paying estate legal costs. The settlement sum Tom’s children received early from their father’s estate was also likely spent paying their own solicitors’ legal costs.

In the end, a hard-earned inheritance was all but lost in legal fees.

Nobody won. Everybody lost. It was such a waste.

IT’S TIME FOR A PARADIGM SHIFT

The story of Tom, Mary and Barbara might sound like a far-fetched drama. I am sure Barbara wished it was. Sadly, in my years of work as a wills and estates lawyer, I have been involved in too many equally awful tales. Over and over, I have seen the following patterns:

• People are often in grief and, in their sadness, anger and wish to blame others, they try to use a legal process to resolve underlying emotional issues.

• People often don’t know their responsibilities or rights, or what steps should be taken after the loss of a loved one.

• When seeking that advice, grieving families are often steered down a traditional court process rather than being advised about alternative resolution pathways that could keep them out of court.

If you are reading this book, then it is likely that you are currently facing, or fear you might have to face, an estates dispute of your own.

You might be an executor named under a will, worried that a disgruntled beneficiary might make a claim against the estate and that you will then have to be involved in a long, drawn out, ugly court battle. You might be a named beneficiary with far greater financial needs than other named beneficiaries, or perhaps you’ve been left out of a will altogether, so you’re wanting to make a claim against an estate. Or you might have legitimate concerns that the last will was not made with sound mind, and you want to make sure the true last wishes of your loved one are upheld.

In my experience, the issues I’ve outlined as common problems that lead to bitter estate battles are relevant to anyone involved in such a dispute, regardless of which ‘side of the fence’ you are on.

The fact is that people who are grieving, unsure of their rights or responsibilities, or confused by the process, can easily become driven by fear and mistrust of other family members or the executors appointed under a will. Initial feelings of sadness can be replaced with intense feelings of anger and a wish to blame others – which are of course a completely normal part of the grieving process. However, if amplified in a legal dispute, these feelings can cause significant conflict.

As devastating as the loss of a loved one can be on your family, it is the conflict that follows when family members begin court proceedings to fight over the inheritance that can irreparably damage your family relationships for generations to come.

I believe it is time to change how contested estates matters are managed.

Instead of drawing battle lines in the sand and immediately firing shots of aggressive correspondence, families should be given some time and space to grieve the loss of their loved one. Instead of digging in the trenches and throwing grenades by issuing court proceedings supported by intensely emotional sworn statements, families should instead be encouraged to resolve the issues in dispute in a holistic way that deals with the deep-seated emotional issues that usually sit behind the legal ones.

It’s time that people like me – other lawyers and barristers who specialise in wills and estates disputes, and those professionals who make up our court system – took a more compassionate approach to help families navigate this most difficult time with dignity and grace. It’s time to give bereaved families the tools, not just to save the loss of a hard-earned inheritance to legal costs, but also to save the breakdown of family relationships.

I have spent countless hours reimagining how disputed estates matters like Tom and Mary’s might be better handled. There are better ways to help grieving families resolve their legal differences. This book will show you how.

Rest in Peace will help guide you through the disputed estates process in the least damaging way for you and your family. While it is right to focus on the legal fallout that can follow the loss of a loved one, there’s also the need to put a spotlight on the more personal and relational issues you will have to navigate during the estate dispute.

• In Part 1 , The Emotional Landscape , I outline the major stages of grief, how these stages can impact the contested estates process and what strategies can help you manage your grief. I then discuss the importance of identifying your core values and acting in accordance with them so that you have the best chance of reaching a resolution that will best ensure your family’s future happiness. I urge you to take the time to work your way through the exercises set out in Part 1 of the book. You might want to do that before reading on, or you might want to come back to this part later when you are ready. You may also need to re-visit this part from time to time as you travel through the process.

• In Part 2 , The Legal Landscape , I uncover the who, what, why and when of estate administration, helping you to understand this challenging role. Whether you are in this role yourself or dealing with another person as personal representative, knowing what is involved will equip you well for your dispute situation. I then walk you through the main ways in which an estate can be contested, looking at the issues that arise and the law’s stance on each.

• In Part 3 , The Way Forward , I set out the range of options open to you to manage an estate dispute, including out-of-court resolution processes. Here I also cover how to amicably negotiate with your family members, the range of advisers you should consider involving, and the documents needed to finalise the contested estate (depending on the legal process chosen). Finally, I give you some tips on how to navigate your ‘new normal’ after the estate dispute is finished and how to best maintain ongoing family relationships. If keeping your family intact, or at least minimising the impact of legal costs on a hard-earned inheritance, is your biggest focus, then taking the time to work through this book will serve you well.

While this book is written mostly for those who have recently lost a loved one and who are then sadly facing an estate dispute, there may be some of you who have picked it up to read because you fear (or know) that a battle is coming. For most of you, that will be because you are part of a blended family, or because your own family is fractured.

This book is not about the ins and outs of estate planning and the things you can do to best ensure that your wishes are given effect. There are already many other books and papers written on this topic. However, by reading this book, you will glean many ideas about what you can do now to prevent a potential estate dispute from ever happening in the first place.

WHY I CARE

I’ve spent twenty years watching my clients experience the loss of a loved one, only to then be embroiled in a legal battle over the estate. I have also assisted many clients to navigate a contested estate with dignity and grace. I have written this book to help others do the same.

I am a dual accredited specialist in succession (wills and estates) law and business law. In fact, I am the only lawyer in Queensland with that dual accreditation. I am also a member of the international Society of Trust and Estate Practitioners (STEP). This means that I have significant experience in complex estates that involve businesses and other trust and company structures, and I know what it takes to administer estates involving international assets.

I am also a nationally accredited mediator and registered collaborative practitioner, which means that I have undertaken specialist training to better understand how to empower grieving families to reach settlement on their own terms. Putting these skills into practice, I have had the genuine pleasure of helping clients and their families navigate their contested estate to a peaceful conclusion.

In gathering information for this book, I have also spent lots of time speaking with clients, friends and family to gain their insights on grief and managing the fallout that follows. For the most part, those who have travelled the journey speak of making it through the valley to the other side – albeit changed forever.

Rest in Peace will help you find your way through the valley and out the other side, where you too can look back and say, ‘I made it through.’

the reality is that you will grieve forever. You will not get over the loss of a loved one; you will learn to live with it. You will heal and rebuild yourself around the loss you have suffered.

You will be whole again, but you will never be the same. Nor should you be the same nor would you want to.

ELIZABETH KUBLER ROSS

PART ONE

the emotional landscape

it’s OK that you’re not OK.

MEGAN DEVINE

CHAPTER ONE

navigating your grief

Your life has changed forever. You have lost a loved one. The initial numbness of the shock has begun to wear off, and you are overcome by waves of grief, then helplessness. At times you are strong, at other times you are overwhelmed – and you never know when you might get blindsided by an emotion too powerful to contain.

The first few days, weeks and months after losing a loved one can be gut-wrenching. The emotional pain can feel physical. Some describe it as akin to having your insides pulled out of you and then shoved back down. Others speak of feeling a heaviness that makes it difficult to breathe. Your whole world stops, and you can’t even look at people getting on with their lives. At times you can’t even speak, at times you want to scream – but mostly, you cry with a heart that aches beyond words.

It is so all-consuming that you wonder if you will ever surface from the depths of your pain and grief. Everything is affected. You lose your appetite and your energy is gone, or you find yourself reaching for food and drink to numb the pain. Some days you are tired, but you don’t sleep. Other days you just can’t get out of bed, and sleep seems to be your only reprieve. When you wake, you lie there hoping that you have just woken from a nightmare, but then the reality of your loss creeps back in and another wave of grief falls heavy on you, taking everything in you to push through the mechanics of living the daylight hours ahead of you. You dread the thought of having to speak to well-meaning people who have no clue at all what you are going through. You manage, just, but you feel like a robot going through the motions