Sibling Rivalry - Hull on Estates #199
Listen to: Sibling Rivalry - Hull on Estates #199
This week on Hull on Estates, Sharon Davis and David Smith discuss sibling rivalry.
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Sibling Rivalry - Hull on Estates- Episode #199
Sharon Davis: Hello and welcome to Hull on Estates. You’re listening to episode #199 on Tuesday, February 16, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Sharon Davis: Hi and welcome to another episode of Hull on Estates. I’m Sharon Davis.
David Smith: And I’m David Smith.
Sharon Davis: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
David Smith: Good afternoon Sharon.
Sharon Davis: Hi David, how are you today?
David Smith: I’m good. Now we’ve got an interesting topic for today which kind of blends a little bit of sociology with the practice of capacity litigation, I guess, is really the focus.
Sharon Davis: Yes and as we know, sociology really does creep into a lot of what we do. Sibling rivalry today we’re going to be talking about. And even though as an only child I’m not actually qualified to talk about sibling rivalry, I do have two kids of my own. So I’m witness to the many manifestations of early sibling rivalry behaviour.
David Smith: Yeah, you and me both. Now earlier this week, Bianca La Neve of our office blogged on a book that was profiled in The Globe & Mail and that book is called “They’re your parents, Too! – How Siblings can survive their parents aging without driving each other crazy” and apparently it’s by a woman named Francine Russo, who I gather has written about this area before?
Sharon Davis: Yes, that’s right. I think she is a journalist and she’s actually interviewed a number of people to write her book. Siblings, gerontologists, family therapists and elder care attorneys, financial planners, health workers. There’s certainly a lot of people out there offering practical advice on these kinds of topics.
David Smith: And, you know, certainly as estate litigation lawyers and as far as this issue is concerned, capacity litigation lawyers, we tend to see the families that have run into discord regrettably. And really what Ms. Russo is talking about is, of course, preventative planning and avoiding the kind of rancour that you and I see on a day-to-day basis where families unfortunately get into litigation. More and more frequently we see files of course where they relate to issues relating to aging parents.
Sharon Davis: That’s right. There’s certainly a lot of issues to be considered at that particular point in time. And Ms. Russo calls that difficult stage of life the twilight transition. And really the tables turn at that stage and boomer age siblings must care for aging parents. And they find themselves back in the very old situations that they had when their lives were intertwined when they were children. Some of the advice that Ms. Russo gives include the negotiation of caregiving issues and dealing with unequal contributions or power struggles, the making of major medical and financial decisions when parents cannot. And as you know, David, that is often the crux of what we have to deal with. How to cope with unresolved childhood rivalries and hurts and tips for avoiding conflict.
David Smith: Sounds like a really good book and certainly it’s probably something we should give consideration to having a look at. In the legal context, of course, where we run into this is quite often in the context of guardianship disputes where a parent may regrettably become incapable and need a child to care for them. And the children can fight over who should be the guardian or sometimes the parents might appoint one child under a Power of Attorney and this creates tension between two children or three children who may not be named as the attorney under the Power of Attorney. So certainly if we can give some thought to how to avoid certain mistakes in dealing with the approach that is taken towards aging parents, perhaps it’s a way to resolve or avoid litigation altogether.
Sharon Davis: And that really would be the object. I’m certain that no parent, as much as it might be nice to be. I think about my two kids. It’d be nice if they loved me enough to fight over me but in fact really it’s nothing that I think any parent would countenance if they could. In fact, there was one case and you say with Powers of Attorney being granted to one child perhaps over another, even when parents grant Powers of Attorney to all children they can’t get along sometimes.
David Smith: Well that’s right. Good point.
Sharon Davis: And certainly that was the case in the Fiaco v. Lombardi case at 2009 CanLii 46170. Justice Brown made it clear that the Court will not tolerate sibling rivalry being funded by an incapable parent. And in that case, mom who was an elderly woman suffering from dementia, had actually granted all four of her children joint Powers of Attorney. And instead of working together as she had wanted, their inability to co-operate even when ordered by the Court resulted in costs of nearly $60,000 in the end. At last going off, the Court really did say they were refusing to fund the sibling rivalry. An incapable parent should not have to pay for the desire of some of the children to continue to battle their siblings. The children whose misconduct was the cause of the litigation were denied their costs and they were ordered to pay the applicant’s costs on a substantial indemnity basis of $12,500. And in fact a lesser amount, Justice Brown said, would have resulted in their mother having to pay for their misconduct. I think a word to the wise, it might be cheaper to take the fight outside the courtroom.
David Smith: Well absolutely. And I think what that case also illustrates is that the Courts are not going to have any sympathy for children who want to get into a dispute over their inheritance before their parents have passed away. As distasteful as that sounds, in practice that’s how it is perceived, even if the children will argue that they’re on the side of right and motivated by all good interests. You know, too often Courts will just see this as being a case of premature Estate litigation essentially and will simply not tolerate it and the sympathies will all lie with the older parent, especially if as in all these guardianship disputes there is no issue as to the parent’s capacity.
Sharon Davis: Ms. Russo mentions a few mistakes that adult siblings make when their parents are aging, sick and dying. And I think the first one certainly is that if one sibling is doing all the work, then you know the others are all off the hook. And I think that’s really pretty much a bad way to look at it and creates even further difficult feelings. And even if a child is not living near mom or dad and maybe one of the children is even living with them, certainly they can call. With the internet these days they can do some banking, they can you know make some inquiries and help along in that regard.
David Smith: Right and you know, where the Courts I think become a little bit cynical as well is that if an aging parent passes away and leaves an Estate, and one of the children has been looking after the parent closely and the other child has not done anything yet, thinks that on the death of the parent they should get an automatic entitlement to one-half of the Estate, quite commonly you’ll see the one who did the work with merit or without merit make a claim for a greater share of the Estate, based on either constructive trust or quantum meruit. So there’s instances where the Court will look to consider to what extent children should be compensated for looking after their parents, although the flip side of that is that quite often Courts will say look, if you love your parent you should look after them and you shouldn’t be motivated by money.
Sharon Davis: Yeah, that’s very true. And in fact when thinking about inheritance, I would think most parents will leave their money and their Estate equally to their children. And I think, too, you know if you’ve got children who, you know, one’s received a great and expensive education, another has had a loan, bought a house, what have you. Maybe some of the children would be looking for redress under those circumstances.
David Smith: Right and I mean looking at Russo’s point in her article, what she’s basically saying there is more directed towards a moral argument which is, look they’re your parents, when they’re elderly and getting on in their years, it’s just the right thing to do to look after them or to be a part of their lives. And if you don’t, it’s going to haunt you later on. Now that, of course, has nothing to do with any kind of legal argument but it’s simply a moral argument essentially that she’s making. Although I would suggest that, you know, we see in litigation that if there’s not that kind of consideration given to respect for your elders if you will, that that can reflect badly on people in the context of any kind of litigation where either an inheritance or guardianship is at issue.
Sharon Davis: Yes, that’s right. Certainly the past will catch up with you in many ways when you look at it that way, for sure. One of the great ways I think to maybe deal with this and people don’t like to because it’s very distasteful, is to plan for end of life care and to have all of the family really talk about, you know, what it means and what’s going to happen when a parent can no longer look after themselves, or passes away and, you know, what are the equities and distributions going to be. And Russo actually has great advice in saying call a family meeting when your parents are still healthy. And certainly that’s the basis of the Hull & Hull family conference model. And it can be a very effective way to really diffuse all of the difficulties, whether it be amongst siblings, with parents. And you can discuss all of those things ahead of time when you still have time to deal with them.
David Smith: You know absolutely. Although I think we have to concede that it’s easier to talk about in theory rather than put into practice because it requires I think a high degree of maturity on the part of family members to be able to have those kind of discussions that, let’s face it, people just typically don’t want to engage in that kind of discussion. Now, you know, Sharon when we were talking about this topic we knew that it was going to be a very meaty kind of topic that we could turn into a very lengthy podcast. We only have a couple more minutes. What other little points should we pull out of the interview in The Globe & Mail that gives some idea of Ms. Russo’s thinking other than recommending to our listeners that they look for the book on Amazon? Or Indigo?
Sharon Davis: I would think the best piece of advice is probably something we all know and never do is to communicate effectively with your siblings, with your parents. I think all of her tips for avoiding conflict kind of centre around that. One was the group huddle, get together and talk about it. Another, be there. You know, you can call up your sister or brother whose looking after mom or dad and ask how things are. I think often times just having that emotional support for the caregiving sibling and the sense that even though you may not be physically present, that you’re there to assist. Avoid criticizing because really there’s no constructive criticism in these circumstances. There’s really only support that can help.
David Smith: So, you know, apart from those kind of things which we all strive to have in our own families for sure, certainly the one thing that we have from our experience is knowing how awful it can be if you don’t do those things. So certainly you want to try to foster good communication and what have you but a cautionary note to end this podcast would be that if things do end up going litigious as between siblings, it’s arguable that there’s no uglier kind of litigation. And it’s always good to try to avoid fights within the family.
Sharon Davis: That’s absolutely true. It’s very hard to heal these rifts afterwards. And although I know David you’ve had an episode or two where there’s a group hug at the end of something, it doesn’t happen all that often and certainly a lot less than we’d like.
David Smith: That’s right. And so, you know, I think that brings us to the end of this week’s discussion, Sharon. Thanks for listening to all of our listeners. And thanks for joining us today.
Sharon Davis: It was a pleasure, David. I look forward to podcasting with you again soon.
David Smith: And again, we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed this podcast. I’m David Smith.
Sharon Davis: And I’m Sharon Davis. Until next week, so long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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