Legal proceedings between family members often act only to aggravate issues bubbling under the surface without ever resolving the problem
Throughout my fifteen years of practice, I have seen an enormous increase in disputes between family members over wills and inheritances. Figures from the Ministry of Justice show that in the five years leading up to 2013, there was a 700 per cent increase in actions launched at London's High Court to challenge provisions made in wills. That's a pretty big leap in anyone's book.
I have pondered over the causes of this. The economic downturn must play a part; when there is less money to go around, people will be more likely to fight for a bigger share. Some blame a more litigious culture generally, and I'd be inclined to agree. Press coverage of disputes over estates has made people aware that a will can be challenged or an inheritance set aside. I also think people have more of a sense of entitlement, fully expecting to receive something after a relative has died. Perhaps, historically people were just happier to put up with their lot, grateful to have been left anything?
In my opinion, there's more to it than that.
From what I see when advising clients over estate planning, families are just not as close as they used to be. Older clients often complain that they don't see their children enough, caused either by distance or their busy lives. Frequently, when an elderly relative needs care, the burden falls on one child more than the others, which can lead to feelings of resentment among siblings. I've even seen extreme cases where a child has been ostracised by the family because of arguments over addiction and, in one case, theft from the parents. Family relations are even more complicated where step-families are involved, with all manner of rivalries and jealousies bubbling away beneath the surface.
All of this means that if someone feels disgruntled about what they've been left after death, they are much more likely to want to do something about it. Bringing legal action against family members is not a taboo. Indeed, my experience is that underlying family tensions quickly rise to the surface, such that disputes between family members tend to be the most hostile I've come across. Where family is concerned, 'it's personal' and so the sense of injustice felt on both sides is amplified.
As an adviser in this situation, you have to be able to take a step back and work out what the dispute is about – I mean what it is really all about. Is it the money, or does one child feel that his brother didn't help out enough when mum was in hospital?
Once you've cracked this, you have the key to resolving the dispute. The problem is that litigation polarises people. It is an adversarial process, so very quickly the prospect of finding a resolution can start to look pretty remote. That is where mediation can help. I have been involved in a number of mediations in disputes between family members and the success rate for settling has been very high.
One advantage of mediation is that each party can have their say. The mediator is impartial and will listen, even to things that would be inadmissible as evidence in court. My abiding memory of a case I recently handled is leaving my client and his partner's mother to talk after an agreement had been finalised, and returning shortly afterwards to find them hugging, and smiling through their tears. What more can I say?
Originally published in Private Client Adviser in October 2014
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