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Friday 25th November 2011

All together now

Contentious provisions in a will can be costly, not only financially, but also emotionally, tearing families apart. Richard Roberts explains how you can help prevent such problems when drawing up a will, through getting all the family involved

Sue Medder, in her article for the March edition of PS on the new surprise hit TV series ‘Can’t take it with you’, said that involving family members when preparing a will, although difficult, can have truly beneficial results and avoid litigation.

As we all know, not only do many families fall out over the provisions of a will – sometimes causing irrevocable relationship breakdowns – but well- established family businesses can also collapse if the owner dies without having discussed succession matters openly and satisfactorily with their family beforehand.

Litigation following a death is on a steep increase. This may be because estates have become more complex, with testators owning assets abroad or having foreign family members (who may have an entirely different legal or cultural view on inheritance), or complicated family structures. Or it may simply be because of sheer greed on the part of the younger generation, who see their older relatives living too long and spending ‘their’ inheritance. Such issues may not seem that problematic while a strong or elderly family member is alive, but their death can reveal both legal minefields and long-held resentments.

I recently advised in a mediation between my client – a third wife, and newly widowed – three children by a first marriage, and one child by a second marriage, where the eldest child quite rightly said “Dad was the glue that kept us together”. Once that glue evaporates, each person is left thinking they knew exactly what the deceased wanted, and begins playing out their own desires against a backdrop of bereavement, heightened emotion and increasing lawyers’ fees.

Many such issues stem from the very concept of testator-imposed inheritances rather than family-led solutions. After all would Dr Gill and the RSPCA have come to such bitter blows had Mr and Mrs Gill been encouraged to be more open about their wishes and aims? Surely communication is a good thing?

WHAT WE CAN DO TO HELP

All of this puts solicitors in a difficult but powerful position. We are under significant commercial pressures, and may be making a will for little financial return. But we are also in the best position to help clients to ensure the future cohesion of their family, and come up with an efficient economic solution to the problem of who inherits. We must not try to right old wrongs, but we can help families to actually look forward to that day when the glue weakens, and has to be reformed by the next generation.

Bringing family relationship issues into our will-drafting will be a challenge. Most practitioners rely on fact-based questionnaires to help them plan a satisfactory will for a client, and are used to thinking in analytical terms. They may think of conversations about family background as tangential, and either avoid them or treat them peremptorily. But we need to ask the client what is their real, underlying desired outcome, and we need to recognise that achieving that outcome will rarely be possible through a document prepared in the vacuum of our offices, which will only be read after they are no longer there to assist in its interpretation.

There is also a challenge in getting the client to understand the importance of this extra part of the process, and why it will make the fee for the work higher. A little more money spent now will help keep family harmony long after that client is dead, and avoid the necessity of spending a lot more later in litigation, and tearing the family apart in the process. Perhaps, instead of marketing how cheaply we can provide a will, we should focus on how much we can save clients by doing our jobs well.

GETTING THE FAMILY TOGETHER

In an ideal world, a family meeting is the best solution to these problems. Such a meeting will involve potentially difficult and emotional discussions, and may be seen by some as a debate, where persuasion and force of personality or argument are essential. However, if it is conducted well, it can provide the testator with the opportunity to hear and understand what is important to the next generation, and make effective decisions based on that.

Some families, of course, will have no difficulty whatsoever in either organising such a meeting or, indeed, conducting it themselves, with appropriate planning. However, there is an increasing number of families for whom such meetings are just not physically possible, and perhaps even more who simply do not consider it possible, because it is thought that the solution does not exist. Of course, the irony is that these families are the very ones for whom such a meeting is actually essential.

This is where solicitors can come in. We know the benefit of ‘omnipartiality’ or neutrality; it engenders trust, and where there is trust, family members will talk. This puts us in a unique position to facilitate such meetings (even if they might be inconvenient for us, since they may need to happen on evenings or weekends). We must not lose sight of who our client is, but information-gathering and the promotion of a holistic solution must be in a client’s best interests. If you do take this role, though, remember that you are there as a facilitator, not a director, and certainly not a dictator.

Collaboration, discussion and settlement are important, as is the practitioner’s silence, to allow a solution to develop, rather than be imposed.

Addressing the tax and legal questions will obviously be important as part of such a meeting, and you could usefully provide a briefing paper listing these issues. However, the family has to be fully involved in the process, and that means more than just covering these technical points.

First, it means involving the wider family as ‘stakeholders’ in the process – in line with the modern focus on stakeholder involvement in decision-making – and giving them the opportunity to express their own testamentary desires. It means involving children and children-in-law (and sometimes wider family members who are confidantes for those children). This will not only make sure their interests are taken into account, but also show them the necessity for them to have valid and relevant wills, too, in case they predecease their parents.

It may also mean providing tactful assistance where dark secrets are revealed: the ‘accidental death’ of a parent when the children were infants, that was actually a suicide; or the profoundly handicapped elder brother left in nursing care for 40 years unknown to his subsequent siblings. Such revelations may be deeply painful for the family, but it is certainly better to air them when personal testimony can assist, rather than have them be discovered later.

It may even mean sniffing out undue influence or elder abuse – an opportunity which can be invaluable to the solicitor, too. After all this, the parties may, of course, still not agree with each other, but they will hopefully understand why others have different views and accept those views for what they are, and the testator will understand what they need to do to keep the family together after they are gone.

If a roundtable meeting of the entire family is just not practical, then individual confidential meetings between an experienced practitioner and the individual family members may be the only solution.

MAKING IT WORK

Follow these simple steps to make sure family meetings are effective.

1. Focus on the facts

Provide your client with all the information they need, including not just tax and legal issues, but possible options, and the consequences of failure. The latter is particularly important. Emphasise just how expensive a contested inheritance dispute can be – and not just in financial terms. Ask your litigation team to quantify costs for a simple claim under the Inheritance (Provision for Family and Dependents) Act 1975 or a validity issue, and for examples of recent cases which you can quote (anonymised, of course) to show how getting it wrong can shatter a family.

2. Build a picture

This lies at the heart of any estate planning discussion: allow family members to tell it how they see it and don’t interrupt. The perception of one child might be very different from that of another child, or may have changed as the child grew up and moved away from their parents, both emotionally and geographically. Try not to impose time limits on discussions, or show irritation at what may to you seem trivial incidents.

3. Bring them out of their shell

The views of less confident individuals may get lost in a whole-family meeting, so separate meetings with each individual may be preferable. However, the practitioner must remember the ultimate goal – to be able to advise his client on an estate planning and will solution that gives that client the best outcome for them and their family – and make whatever decision is most likely to achieve that goal.

4. ‘Brainstorm’

Get family members to come up with ideas, and listen to them openly. Don’t impose legal solutions that families don’t understand, but be ready to suggest legal possibilities. Remember the dictum: ‘I am heard, so I listen’ – if a family member feels that their ideas are heard rather than being ignored, they may be more likely to talk openly about something that really concerns them. And remember: nothing is off the agenda. Practitioners should try not to remain rooted in traditional will-making concepts, but promote practical and pragmatic solutions.

5. Involve charity beneficiaries

In cases where charities are to be major beneficiaries, apply the same principles: engage the charity in discussions early on, and encourage a dialogue with the testator. The more a testator knows about a charity, the more they may suggest ways in which their funds will help or inspire the charity in new and innovative ways.

6. Focus on the outcome

Remember that your client wants a will that will be validated after their death, and which not only disposes of their assets in an effective and tax-efficient manner, but also – and perhaps more importantly – ensures that the family they created remains a cohesive and supportive unit.

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