I recently read the book “Bobby Gets Bubkes: Navigating the Sibling Estate Fight” (bubkes is Yiddish, meaning nothing, nada, zip, zilch), by Charles B. Ticker, which explains how to navigate a sibling estate fight. Charles, who is a mediator and estate litigation lawyer, previously contributed a guest post to this blog on The Top Five Areas of Estate Litigation.
As an accountant who has dealt with families for many years and has written on various sibling issues (such as Sibling Rivalry – Parents Beware, it is not only a Childhood Isssue and Is Your Estate Planning Horizontally Challenged?, where I discuss how parents need to consider their children’s sibling relationships when drafting a will), I found this book very interesting.
Today I am going to highlight a few of the issues and points made in the book that caught my attention (Note: I am not reviewing each chapter, so I jump between chapters in my post below).
In addition, Charles has graciously provided three free copies of his book to give away to readers of the blog. Please see the details at the end of the post.
In his book, Charles states that many sibling estate fights have deep roots that can go back 50 or more years. In the first chapter he notes the most famous line from the Smothers Brothers Comedy Hour, a classic TV show from the late sixties, where Tommy Smothers would complain to his brother, Dick, “Mom always liked you best.” Charles recounts how Tommy said the audience went wild the first time he came out with that line and that it resonated because everyone could relate to the experience.
The issues siblings have do sometimes stem from perceived favouritism by mom, but more likely they come from an event or events that occurred in childhood, such as letting a pet get loose or “killing the pet through neglect,” taking a hockey card collection or injuries from roughhousing. Charles notes that once the parental referees are out of the picture, the gloves come off.
Charles sums up this topic by saying, “My clients constantly refer to negative childhood episodes involving a sibling with whom they are engaged in a legal dispute over the parent’s estate. Even though what happened when they were kids has nothing to do with the lawsuit, the painful memories of those negative experiences fuel the estate dispute between them as adults.”
In his second chapter, Charles notes a very common refrain from his clients: the will is not fair. But Charles states that it is a common misconception that a will has to be fair. He notes that “while wills are often challenged because they appear to be unfair, a successful challenge in most jurisdictions is not based on the issues of fairness but rather the issue of whether the parent understood what he or she was doing when the alleged unfair distribution of the estate was made.” This is a shock to most people
The concept of fairness is a tricky one. Is a will unfair if there are unequal gifts? Is the will unfair when there are equal gifts, but one child took mom into her home the last 10 years of the mother’s life and fed her and looked after her?
Charles concludes the second chapter by saying that perceived unfairness – regardless if the children are treated equally or unequally – may contribute to an estate fight.
Many children are cut out of a will or left a smaller inheritance than their siblings because they had a diminished relationship or no relationship with their parents. Charles makes an interesting comment on this issue when he says, “This may seem like a cruel remark, but the bottom line is that an adult child should not expect to receive a bequest from a parent’s estate if he or she did not have an ongoing relationship with that parent.”
While this would seem obvious, apparently it is surprising to many of Charles’ clients.
Readers of my blog will know that I am a huge proponent of discussing your will to some extent with your family and explaining your intentions. Charles seems to agree with me. He states that choosing not to talk to your children is a big mistake, “as leaving questions unanswered can create these difficult disputes.”
I commented above on whether it is fair to have equal gifts where one child has looked after a parent for years. This has become more common the past few years, whether the care is in the home of the child or in the parent’s home or a nursing home. Very often one child becomes the primary caregiver - through desire, geographic location, job demands, whatever.
Charles notes that in Ontario the caregiver child may be able to claim for more of the estate based on the care they provided to their parents. They do this by claiming compensation for services rendered to the parent based on a doctrine called quantum meruit. Of course, this all presumes there was no formal contract between the parent and the child.
In Chapter 4, Charles discusses the common complaint from a child that a parent had promised a particular asset or gift to the child and that “promise” was not in the actual will. Charles notes a recent Ontario case on the issue, where a farmer broke his promise to leave the family farm to his son. Fourteen years after the farmer passed away and enormous amounts of money were expended in legal fees, the Ontario Superior Court awarded the farm to the son but ordered him to pay $1.325 million to his sister.
The moral of the story is: parents, if you promise your child something, ensure it is reflected in your will or don’t make the promise in the first place.
As I don’t want to give away the whole book, I will stop here. If you would like to order a copy of Charles' book, purchase it here (Canadian link).
Charles Ticker is an estates lawyer based in Toronto who focuses on estate litigation and mediation of estate disputes. More information about him can be found at http://www.tickerlaw.com/. The information in this blog is not intended to be legal advice. Readers should consult their own lawyer, attorney or other professional for advice.
As noted above, Charles has provided me three books to give away to my readers. If you are interested in a copy of the book, email me at bluntbeancounter@gmail.com by December 16th. I will notify the winners by email on December 20th.
Please note the blog posts are time sensitive and subject to changes in legislation.
BDO Canada LLP, a Canadian limited liability partnership, is a member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. BDO is the brand name for the BDO network and for each of the BDO Member Firms.
As an accountant who has dealt with families for many years and has written on various sibling issues (such as Sibling Rivalry – Parents Beware, it is not only a Childhood Isssue and Is Your Estate Planning Horizontally Challenged?, where I discuss how parents need to consider their children’s sibling relationships when drafting a will), I found this book very interesting. Today I am going to highlight a few of the issues and points made in the book that caught my attention (Note: I am not reviewing each chapter, so I jump between chapters in my post below).
In addition, Charles has graciously provided three free copies of his book to give away to readers of the blog. Please see the details at the end of the post.
Mom always liked you best
In his book, Charles states that many sibling estate fights have deep roots that can go back 50 or more years. In the first chapter he notes the most famous line from the Smothers Brothers Comedy Hour, a classic TV show from the late sixties, where Tommy Smothers would complain to his brother, Dick, “Mom always liked you best.” Charles recounts how Tommy said the audience went wild the first time he came out with that line and that it resonated because everyone could relate to the experience.
The issues siblings have do sometimes stem from perceived favouritism by mom, but more likely they come from an event or events that occurred in childhood, such as letting a pet get loose or “killing the pet through neglect,” taking a hockey card collection or injuries from roughhousing. Charles notes that once the parental referees are out of the picture, the gloves come off.
Charles sums up this topic by saying, “My clients constantly refer to negative childhood episodes involving a sibling with whom they are engaged in a legal dispute over the parent’s estate. Even though what happened when they were kids has nothing to do with the lawsuit, the painful memories of those negative experiences fuel the estate dispute between them as adults.”
It’s not fair!
In his second chapter, Charles notes a very common refrain from his clients: the will is not fair. But Charles states that it is a common misconception that a will has to be fair. He notes that “while wills are often challenged because they appear to be unfair, a successful challenge in most jurisdictions is not based on the issues of fairness but rather the issue of whether the parent understood what he or she was doing when the alleged unfair distribution of the estate was made.” This is a shock to most people
The concept of fairness is a tricky one. Is a will unfair if there are unequal gifts? Is the will unfair when there are equal gifts, but one child took mom into her home the last 10 years of the mother’s life and fed her and looked after her?
Charles concludes the second chapter by saying that perceived unfairness – regardless if the children are treated equally or unequally – may contribute to an estate fight.
Why it’s important to visit your parents
Many children are cut out of a will or left a smaller inheritance than their siblings because they had a diminished relationship or no relationship with their parents. Charles makes an interesting comment on this issue when he says, “This may seem like a cruel remark, but the bottom line is that an adult child should not expect to receive a bequest from a parent’s estate if he or she did not have an ongoing relationship with that parent.”
While this would seem obvious, apparently it is surprising to many of Charles’ clients.
Parents: Have that discussion
Readers of my blog will know that I am a huge proponent of discussing your will to some extent with your family and explaining your intentions. Charles seems to agree with me. He states that choosing not to talk to your children is a big mistake, “as leaving questions unanswered can create these difficult disputes.”
The child as a caregiver
I commented above on whether it is fair to have equal gifts where one child has looked after a parent for years. This has become more common the past few years, whether the care is in the home of the child or in the parent’s home or a nursing home. Very often one child becomes the primary caregiver - through desire, geographic location, job demands, whatever.
Charles notes that in Ontario the caregiver child may be able to claim for more of the estate based on the care they provided to their parents. They do this by claiming compensation for services rendered to the parent based on a doctrine called quantum meruit. Of course, this all presumes there was no formal contract between the parent and the child.
Broken promises
In Chapter 4, Charles discusses the common complaint from a child that a parent had promised a particular asset or gift to the child and that “promise” was not in the actual will. Charles notes a recent Ontario case on the issue, where a farmer broke his promise to leave the family farm to his son. Fourteen years after the farmer passed away and enormous amounts of money were expended in legal fees, the Ontario Superior Court awarded the farm to the son but ordered him to pay $1.325 million to his sister.
The moral of the story is: parents, if you promise your child something, ensure it is reflected in your will or don’t make the promise in the first place.
As I don’t want to give away the whole book, I will stop here. If you would like to order a copy of Charles' book, purchase it here (Canadian link).
Charles Ticker is an estates lawyer based in Toronto who focuses on estate litigation and mediation of estate disputes. More information about him can be found at http://www.tickerlaw.com/. The information in this blog is not intended to be legal advice. Readers should consult their own lawyer, attorney or other professional for advice.
Book giveaway
As noted above, Charles has provided me three books to give away to my readers. If you are interested in a copy of the book, email me at bluntbeancounter@gmail.com by December 16th. I will notify the winners by email on December 20th.
The above blog post is for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Readers are advised to seek specific legal advice regarding any specific legal issues.
The content on this blog has been carefully prepared, but it has been written in general terms and should be seen as broad guidance only. The blog cannot be relied upon to cover specific situations and you should not act, or refrain from acting, upon the information contained therein without obtaining specific professional advice. Please contact BDO Canada LLP to discuss these matters in the context of your particular circumstances. BDO Canada LLP, its partners, employees and agents do not accept or assume any liability or duty of care for any loss arising from any action taken or not taken by anyone in reliance on the information on this blog or for any decision based on it.
The content on this blog has been carefully prepared, but it has been written in general terms and should be seen as broad guidance only. The blog cannot be relied upon to cover specific situations and you should not act, or refrain from acting, upon the information contained therein without obtaining specific professional advice. Please contact BDO Canada LLP to discuss these matters in the context of your particular circumstances. BDO Canada LLP, its partners, employees and agents do not accept or assume any liability or duty of care for any loss arising from any action taken or not taken by anyone in reliance on the information on this blog or for any decision based on it.
Please note the blog posts are time sensitive and subject to changes in legislation.
BDO Canada LLP, a Canadian limited liability partnership, is a member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. BDO is the brand name for the BDO network and for each of the BDO Member Firms.
