The Law – Avoiding Will disputes

So, you think your last Will is binding and all will be happiness between your beneficiaries after you die? But the reality is that disputes can and do arise from wills which don’t meet the expectations of some or all beneficiaries.

This can cause divisiveness or exacerbate existing differences. Can this be avoided and the possibility of court action as well? The answer is ‘yes’ in some instances and, hopefully, in many. However, in some families, deep-rooted differences preclude any solution other than one imposed by the High Court or an agreed settlement when the costs of a court battle are fully understood.

How then, can lengthy and costly disputes be avoided? Cynically, you can spend all or most of what you have so there is nothing to be divided when you die. Strangely, though, that can be harder to do than it sounds. It would be unwise to divest yourself of most of your assets while alive. Who knows what and how much you will need to comfortably sustain yourself for the remainder of your life?

One method to remain in your current home and have funds to do as you wish is a reverse mortgage, but committing to one should be considered carefully and only after independent legal advice. They are not for all. In brief, they allow you to borrow against the equity in your home without having to fund interest and principal while alive, which gives you cash to use as you choose.

Alternatively, you can assist family members during your lifetime with gifts of money or loans that are forgiven in your Will or earlier or set-off against a share in your estate after death. “Give with a warm hand not a cold one” was what one memorable client told me and lived by. Keep a detailed record of how much was given and to whom, why and when. However, great care should be exercised with either of these two possibilities, especially if residential care is needed later in life.

A third possibility is to leave precise reasons why you have divided your estate as you have in your Will in an accompanying Statement. A lawyer can help draft that statement. Remember, if circumstances change, you should change your Will. This might happen, for instance, if you were reconciled with a child or helped a child whose situation had through suffered a crisis

A fourth option, though there can never be certainty it will be honoured, and circumstances can change for any involved, including yourself, is to hold a family conference to explain your intentions and your reasoning, and to get feedback. If you are wealthy, having your lawyer chair the meeting would be wise.

A further and more certain possibility is to use a trust. Much is said about family trusts, and there is a degree of misunderstanding, too. They are certainly not for everyone, and you need to be moderately wealthy to justify the costs, though the costs most likely will pale compared to the costs of court action after your death. Get advice from an experienced trust and estate lawyer only.

Finally, at any time during your life, you can make a gift to a charity of your choice. However, if a gift or gifts are made in your Will they could be contested by family. Complicated? Yes, a bit. But competent and experienced legal advice will assist you to make an informed decision, and one you can rest in peace with. These comments are intended as a “once over lightly” to raise awareness of pitfalls and of options that can be considered to avoid costly and damaging disputes.

This column is provided for informational purposes only and not for the purpose of providing legal advice.
David is a Notary Public and formerly a lawyer in private practice for 43 years. He lives in Omaha is involved with several environmental groups.