Winning in estate dispute equals amicable agreement

Personal Finance

Your Money

November 21, 2006|By Eileen Ambrose | Eileen Ambrose,Sun Columnist

Mix money, emotions and a parent who dies without a will, and you have the makings of war that can tear a family apart for generations.

Disputes over estates are fairly common and likely to get more so in coming years, says Les Kotzer, a Toronto lawyer and co-author The Family War: Winning the Inheri tance Battle. Many heavily indebt ed baby boomers are just waiting for an inheritance to solve their money problems, Kotzer says.

"There are a lot of `waiters' out there," he says.

Kotzer previously co-wrote a book on how parents can avoid disputes over their estate. His new book with two fellow estate planning lawyers offers advice on how to win in battle. Winning, in this case, means siblings come to an amicable agreement and fami ly ties remain intact.

"The brother you're fighting with now, ... will he visit you in the hospital in 2020?" Kotzer says.

If not, then you've lost.

Here are signs, the lawyers say, that you may end up in an estate squabble:

Your mother or father dies with out a will, or drew up a home made document that a lawyer can easily poke holes in.

A parent has children from mul tiple marriages.

A parent leaves children un equal amounts without an expla nation.

Your sibling is a bully who boasts about suing people.

Or, a sister- or brother-in-law is controlling and likely to push a spouse into a family feud.

If a fight does break out, family members should try to settle the matter without going to court, where the case can drag on for years and legal fees erode the es tate, Kotzer says.

"People think that going to court is like watching Boston Legal; it's over in an hour," Kotzer says. "It's not."

Still, cases will go to court.

If you're the challenger? You need grounds to challenge a will. Saying it's "unfair" or "not what Mom really wanted" won't score any points in court, Kotzer says.

Challengers will need to show that the parent was mentally in capacitated or unduly influenced by a sibling when writing up the will. You might have to find wit nesses that can attest that a sib ling, say, refused to take a parent to the doctor or threatened not to visit unless the will was changed in the sibling's favor.

Or, you can use the prospect of going to court as leverage to con vince family members to settle the dispute upfront, Kotzer says.

Challenges can backfire. You might succeed in getting the court to void your father's will that left you a small inheritance, and then find out it is replaced by a previous will that left you with nothing, Kotzer says.

(Tip to parents: If you want to exclude, say, a son, from a will, leave the son's child an inheri tance. That will make the son less likely to challenge the will, Kotzer says.)

If you're on the other side of a challenge?

A sibling who refuses to be rea sonable should be encouraged to seek his own lawyer, Kotzer says. The sibling might listen to his own lawyer tell him he has no le gal claim.

Don't gang up with siblings against the unhappy heir. It could cause that person to dig in his heels, Kotzer says.

Be reasonable. Judges tend to punish unreasonableness, the lawyer says.

And just because a parent leaves you a bigger inheritance, doesn't mean you can't share it with a sib ling who feels unfairly treated, Kotzer says.

eileen.ambrose@baltsun.com

Questions? Comments? Write personal.finance@baltsun. com

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