Emotional Estate Disputes - Hull on Estates and Succession Planning #189
Listen to: Emotional Estate Disputes - Hull on Estates and Succession Planning #189
This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag discuss emotional estate disputes amongst families.
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Ian M. Hull - Click here for more information on Ian Hull.
Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.
Emotional Estate Disputes -
Welcome to
Suzana Popovic-Montag: Hi and welcome to
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: Hello there Ian.
Ian Hull: Okay, why don’t we just take our last theme from last week and that is this idea that maybe estate fights are actually motivated by sincere, heartfelt, emotional feelings. And let’s overlay that into our global series, our mini series here on Powers of Attorney. And the scenario is this: you have a sick and dying parent who is gradually becoming less and less cognitively aware and physically aware. But during a cognitively aware and physically aware time, decides that she has to have one of her kids be the attorney, the dutiful daughter who happens to live close by. And that person says to the daughter, I want you to be the Power of Attorney. I want you to arrange to get a lawyer here to make you the Power of Attorney. You’re the sensible choice. You’re the one who’s always around. Alright, let’s talk that through from the other perspective, not from the money-grabbing, power-hungry daughter who just wants to take over the affairs. But what is going on in the head of that individual? The other side of the argument per se, who has been just asked the most, probably one of the most important tasks of their life.
Suzana Popovic-Montag: And you know Ian, those kinds of situations, I think, can instill such honour in that individual who’s been asked and such a determination to do everything to satisfy Mom’s dying request, so to speak. And so we can understand that that emotion is going to drive the action that follows from that, like bringing in a lawyer. And they may not necessarily be thinking with the right, you know, clearest head on how to avoid litigation at the end of the day, but they might just pull in their lawyer. They might just pull in a doctor to come in to make sure that everything’s okay. They may want to, you know, bring in other family members. You know this is what Mom wanted. This is what she intended. And it may not necessarily be the right choice when we look at it with, you know, the benefit of hindsight. But it may be the right one for that moment in time.
Ian Hull: And I think it’s so interesting because fundamentally testamentary freedom has been embraced like democracy, right? It’s like a…it’s the core value in the Courts and it’s the same when you’re picking an attorney. If the person wants so-and-so to be the attorney, what is so wrong with that? And yet we build our whole practice around defending the choice of attorney and all of that. But yet we forget sometimes, and I think the Court sometimes forget, that that choice was a heartfelt choice in lots of cases…not in all but in lots of cases…was a heartfelt choice. Maybe not the right one, as you say, but a heartfelt choice that needs to be supported. And has been supported typically in the case law for many, many years is that idea that you make that choice (a) you’ve got to live with it; and (b) it was your choice.
Suzana Popovic-Montag: Absolutely.
Ian Hull: So the backdrop of the choice from the other perspective, I think, is always helpful. And as we talked about last week, you know, my example of buying a razor for my Dad and everybody jumping on that. Well let’s expand that. When you’re asked to be the attorney for a sick and dying parent and if you have the time and you put your heart and soul into that effort, then that person dies. How do you think that person is going to feel if they were genuine and sincere with their activity when the brother says, I think you stole money from Mom during that time.
Suzana Popovic-Montag: Yeah.
Ian Hull: And so again, what I think these things obviously answer is, is the tremendous emotions, right? But I think what this illustrates and what it demonstrates why the Courts in the areas of trust and capacity litigation deal with things in a special way is that it’s the emotional element and the real human nature element of all of these cases that the Courts have to struggle with.
Suzana Popovic-Montag: And I think the best that we can do as advocates is to get that story, to get that emotion, to get that moment in time as best as we can from our clients so that we can do them a justice and relay that to the ultimate judiciary, the judge who is going to determine whether or not that was in fact what the deceased intended. And that’s really the best we can do because it is a system and it’s the one that we’ve got to follow.
Ian Hull: And so as advocates, one of the best things we can do is get help for that story, right? And get the story told and get it corroborated. If indeed the Power of Attorney for Property ended up coming in over every day and working 3 hours on the small business books of a company to make sure it kept going, the widgets kept being sent out and so on. Is that attorney able to document that in a way that we can prove it to the Court to show how dutiful they were or are they just going to say, that’s what I did?
Suzana Popovic-Montag: I know. And you know that’s really the struggle that we see in so many cases. People who are doing good for goodness sakes, they don’t think ahead and document every single thing they’ve done. It’s a labour of love. It’s just expected. It’s just done. And it’s forgotten very quickly. And so when they’re put to the onus of having to defend that, it’s such an undignified kind of challenge to them in these kinds of cases. It’s very difficult and all we can do is to sort of create an awareness to people that you know what, at the end of the day these things may happen and we’ve got to anticipate them or at least think about them and how we might defend them if and when we ever had to.
Ian Hull: And so the defendable behaviour really is where, I think, you know in a large part of our practice probably half of our practice is on the side of one and half is on the other side of the other. But this isn’t about money in many, many cases. And if it isn’t about money, then it’s very difficult for us to tell people, well look you have to act as though it is about money. And as you say, they’re doing good for goodness sake. But at the other end of the day we have to be realistic and this is a big, harsh world in some respects.
Suzana Popovic-Montag: That’s for sure.
Ian Hull: And so when someone takes on these roles to do good for goodness sakes, we have to and we continue to remind our clients that you have to be business-like. Whether you like it or not, you’ve taken on a business-like role and you need to be business-like about your role.
Suzana Popovic-Montag: Absolutely.
Ian Hull: And we’ve just given some illustrations of how to be business-like. So taking the emotional, tree hugger sort of view and layering it on with business efficacy is a difficult task but one in a complex world can’t be ignored and any attorney who gets into this role can’t naively enter the role without knowing that backdrop.
Suzana Popovic-Montag: Yeah, that’s really good advice, I think, Ian.
Ian Hull: Well we try to give that advice regularly to people who want to listen and we hope everyone listened today to that extent. And we’re looking forward to our next podcast. We’re entering into the festive season so we’re going to do our best to keep regular weekly podcasts coming out during what is going to be a busy time and hopefully a wonderful time for everyone’s families.
Suzana Popovic-Montag: Thanks very much Ian.
Ian Hull: Thanks Suzana.
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