Siblings can be our closest family members. But when it comes to litigation over family property or money, genetics can fall by the wayside and siblings can quickly become our biggest adversaries.
In disputes concerning wills or trusts, dormant—or not so dormant—sibling rivalry often emerges. Siblings of all ages, and of all economic or professional statures, have a tendency to dig in their heels, fight for control and often be profoundly pigheaded when legal and family matters collide. While probate disputes are ostensibly about money, the core of most probate litigation concerns decades of complex and emotional family issues. Indeed, a large percentage of sibling squabbles involves people in their 50s and 60s.
Siblings can become involved in probate litigation in many ways. A sibling may try to challenge a parent’s will. One sibling may try to set aside a conveyance of real estate or transfer of other assets that a parent made to another sibling. Several cases concern whether a sibling who is an executor is fulfilling his or her duties to the other beneficiaries.
Many conflicts begin when a parent treats children unequally in a will or trust. A testator certainly can do what he or she wants with his or her property. The profligate son or nasty daughter may very well not deserve an equal share.
Or it may seem unfair if the CEO son receives as much as his schoolteacher brother. But it is very difficult for a child of any age to accept unfair treatment. Wealth or professional status often does little to mitigate the myriad emotions someone feels when a parent treats a brother or a sister more favorably. These emotions can fuel litigation. While all litigation should be based on good-faith legal claims supported by facts, very often these emotions—right or wrong—prolong and complicate the litigation.
Parents, when devising estate plans, should consider sibling dynamics, and should consider both the emotional and financial consequences of treating children differently. There are good arguments for treating each child equally. There are also good arguments for recognizing each child’s economic circumstances. Well-drafted estate plans can greatly reduce the types of legal claims a disgruntled child can make.
Disputes often arise when one sibling cares for an aged or ailing parent while another sibling remains distant, either geographically, psychologically or both. Often the child who is closer will be involved in the parent’s financial affairs and likely has made personal sacrifices to care for the parent. Not surprisingly, a parent will often treat this child preferentially in a will. Upon the death of the parent, the more distant child may become suspicious or resentful of the closer sibling.
But sometimes the caretaker child is not quite a saint. This child may feel entitled and try to exert undue influence upon the parent to convey assets or change estate plans for the child’s benefit. The courts are filled with cases where a child misuses a power of attorney or otherwise takes advantage of a vulnerable parent. These cases are challenging because the caretaker child may be part martyr and part scoundrel. The distant sibling may have a hard time contradicting the closer sibling’s testimony about what the parent said or did. The closer sibling may rationalize, exaggerate or outright lie.
And there are certainly many cases where the closer sibling has acted appropriately and the distant sibling’s suspicions stem from envy, guilt or just misunderstanding. Ultimately, a court may have to decide what the parent intended, and whether the parent understood any changes to the estate plans or to the title of assets. A court will typically consider a parent’s medical history, competency and relationship with each child in addition to the circumstances of the questionable changes.
Similar issues can arise when one sibling is appointed personal representative of a parent’s estate. A personal representative has a fiduciary duty to administer an estate in accordance with the law and in the best interests of all the beneficiaries. Carrying out these responsibilities can be difficult if other siblings resent the appointment or otherwise let emotions interfere with the administration of the estate. Conversely, there are numerous situations where the personal representative takes advantage of the position and uses his or her authority to engage in self-serving conduct to the detriment of the other beneficiaries. Litigation may be necessary to correct any wrongful conduct.
Disputes also arise when siblings must dispose of a parent’s personal property, i.e. assets other than money or real estate. Often, a testator may not make specific bequests of personal property in his or her will. Or someone may die intestate, meaning without a will. If so, it may be up to the children to decide how to divide their parent’s personal property. Dividing up the family china can become an emotional and expensive task if the parties are unduly materialistic, obstinate or sentimental. These scenarios provide occasions for sometimes Solomon-like resolutions, such as picking cards to determine the order of selecting certain items. Such school yard justice may help quell the emotions and provide an ultimately fair disposition.
Sibling disputes are why parents, as difficult as it may be to talk about finances or mortality with their kids, should communicate with their adult children about postmortem planning. Unfortunately, few do. Many adult children are surprised to learn upon their parents’ deaths that their parents had much more or much less than they expected. Setting reasonable expectations helps minimize problems when a parent passes away. Estate plans are very private things, but a little explanation from mom or dad can go a long way toward quashing a family feud.
Communication among the siblings is also the key to avoiding prolonged combat. No matter how complicated the family baggage, it is prudent to try to talk through issues early in any type of a probate matter. Siblings should discuss time lines, who is going to do what and how they will communicate throughout the probate process. Some siblings, often with much success, make a pact at the outset of a probate matter not to let greed or petty squabbles ruin their family relationships. These folks usually had strong relationships before mom or dad passed away.
In virtually all probate matters, it is important to have knowledgeable attorneys work with the parties to explain their rights and represent their interests in any adversarial proceedings. Mediation may help the parties find compromises short of protracted litigation. However, if the parties are unwilling to give in, or if one sibling or faction of siblings is very unreasonable, compromise may be impossible and a trial may be necessary to settle the dispute. Litigation can of course be expensive. But perhaps more significantly, litigation tends to augment any rift in the sibling relationship.
At every step during litigation, siblings should assess not only the merits of their legal claims, but also the potential adverse, and sometimes permanent, impact the litigation may have on the family.
The legal system cannot engineer relationships. A court seeks to administer a will in accordance with the intent of the decedent and to serve the interests of all beneficiaries. Siblings who disagree about the administration of an estate have to make very personal decisions about whether the money at issue, or the principle of the matter, justifies the likely damage to the sibling relationship and, often, damage to the relationships of future generations.
Patricia L. Davidson is a partner in Mirick O’Connell’s probate, trust and fiduciary litigation group and the business and general litigation group.
