The will and the family: Psychiatric and legal perspectives

Every adult person, and especially every parent, should have a will. To die intestate is to leave one’s survivors – one’s family – with additional difficulties that can only compound their grief and sense of loss.

That said, the will, and especially the will of a parent, is more than merely a document to be read after death that provides instructions as to the disposition of his or her worldly possessions. It is the last form of communication between the dead and the living, the last contribution that a person can make to the legacy that he or she leaves to the family. And, as such, it can be a dynamic factor in the preservation – or otherwise – of what can be referred to as the family tradition.

For these reasons, two perspectives – a psychiatric and a legal perspective – are presented.

PSYCHIATRIC PERSPECTIVE: PRESERVING THE FAMILY TRADITION

If the family tradition (1), which is created or sustained in life, is strong and healthy, then a carefully prepared and constructed will can help to ease the pain of loss for the surviving family members and to preserve the family tradition into the next generation. Or, on the negative side, if the family tradition is unhealthy or pathological, the will can be used as an instrument to perpetuate negative and destructive behaviours (2,3), and to prevent the establishment of a healthy family tradition among the survivors. Indeed, the will can be, and often is, used deliberately as a weapon with which the deceased hopes to wield power from the grave – usually to take revenge on his or her survivors for perceived ill-treatment received during life – and often wreaks havoc beyond what he or she could have imagined.

At the same time, families that quarrel over the terms of a parent’s will, such as over money, jewellery, real estate or other belongings, are usually families that have always quarrelled over other matters. The fight over the estate is usually just the last, although often the most bitter, feud of a long tradition of feuding and infighting – a pathological family tradition, in fact.

Sometimes, it is a parent or parents who have held the family ‘together’, and when the last parent dies there is no longer any reason for the surviving children to pretend to get along. All of the hurt feelings, sibling rivalries, and long harboured grievances and resentments come to the surface, and they often find an outlet in litigation over the estate (4).

Conversely, families that have traditionally been close will usually accept the will of a parent, whatever its terms. Such healthy families can, for instance, divide the contents of the parents’ home without the need for lawyers or other intermediaries. They can also accept an unequal division of assets, provided it has a reasonable, objective basis.

The critical factor in either case is the health or otherwise of the existing family tradition, and it is important to remember that every family does in fact have a tradition, in the sense that the authors define it. A mature individual is the product of many influences, but none is more important than that of the family.

At the core of the family tradition is the relationship between the parents (5). It is the pre-eminent factor in determining the success or failure of the nuclear family (the parents and their children), and the emotional health of the children both as individuals, and as a critical element in the continuation of the family tradition. A strong, healthy and mature father-mother relationship, based on a mutual respect, trust, and the equitable sharing of roles and responsibilities, is similarly the wellspring of both successful parenting and the perpetuation of a healthy tradition. It tends to lead the children to be receptive not only to sustaining strong relationships among themselves, but also to forming similar, strong relationships with partners in their own lives and with their own children.

As noted above, the will of the deceased parent can be an instrument for sustaining a healthy family tradition or for perpetuating a pathological one. It can almost never repair damage done or correct deficiencies that were created during life. A will that includes direct or implied apologies or attempts to ‘put things right’ almost never has the intended effect. Mistakes made in life cannot be rectified after death (6).

Deliberate attempts to exercise control or pass judgment from beyond the grave (7,8) are invariably destructive to the family tradition, especially if they come as a surprise to any of the surviving children.

On the positive side, a thoughtful testator can often enhance an already healthy family tradition by going beyond what may have been expected. A stepfather who treats both his natural and his stepchildren equally in his will is most likely to further cement relationships that were probably healthy during his life. In another case, a father specifically thanked his wife, in his will, for her love and support during his life, and urged her to remarry. Such a generous attitude undoubtedly made it easier for both the woman to consider remarriage, and their children to accept and welcome it.

LEGAL PERSPECTIVE: AVOIDING AND RESOLVING DISPUTES

Inevitably, of course, survivors who seek the assistance of a lawyer to contest a will are those who believe that they have not been fairly or equitably treated by the testator. Aside from the nonlegal contention that the will is ‘unfair’, the legal grounds are generally that the will does not reflect the true intentions of the deceased or that the deceased was not of sound mind when the will was prepared. In every case, the surviving family member seeks, within the framework of the law, to right a perceived wrong – to have ‘justice’ in his or her own eyes. For these reasons, estate litigation is highly emotionally charged. It is often not merely the will that is being brought forward for examination, but the family tradition itself, with all its underlying grievances and harboured resentments.

Successfully contesting a will cannot make the successful petitioner ‘right’ in the eyes of the other members of the family. A favourable court judgment may result in the redistribution of the assets of the parent’s estate, but it cannot and will not heal the family relationship. On the contrary, it will almost invariably have the exact opposite effect: survivors who lost the court action will almost certainly harbour the same resentments and sense of injustice that the ‘winning’ party held in the first instance. So, the ongoing destruction of the family tradition is continued and exacerbated.

Similarly, a failed action to contest a will almost never removes or alleviates the emotional issues harboured by the initiator of the action. Resentments of the ‘other side’ remain unalleviated or, in some cases, are transferred from the ‘other side’ or the deceased parent to the judge. Comments such as “my father was unfair” or “my parents always preferred my brother” become “the judge was biased” or “the judge liked my brother better”.

Often, significant time must pass before a settlement can be reached. Family members are not ready to resolve differences shortly after the death of the parent. They need time to grieve, perhaps to absorb the shock of an ‘unjust’ will, and generally to sort out matters. Also, it is often necessary or beneficial for the family members to have opportunities to tell their stories over and over – to their own lawyer, to the opposing lawyer during examination for discovery or cross-examination and sometimes to a judge by way of an affidavit in an interlocutory proceeding.

Only through this legal process can family members begin to gain some outside perspective on their own cases and arguments, which may help them recognize the purely emotional elements, as opposed to the legal validity of their claims. And, of course, they also get to hear and gain some perspective on the other side’s version of events. It is only after this give and take, and this sharing of information and perspectives that the parties can set aside some of their differences and reach a resolution.

Alternative dispute resolution (ADR) can and should be seriously considered as a means of avoiding court proceedings. ADR is less costly, often quicker and especially attractive in the context of estate resolution because it is nonconfrontational and does not generate a winner-take-all result. A resolution achieved through mediation can often go a long way in healing hurt feelings and damaged relationships, and may even leave the door open for reconciliation. A lawyer can advise on how ADR may be initiated.

Although the law does not provide that children must be treated equally in a parent’s will, a child receiving less than a numerically equal share of the estate may feel bitterly hurt and may believe that the parent could not have been of sound mind when executing the will. However, court proceedings to set aside the will on the grounds that the parent did not have testamentary capacity must obviously be based on evidence beyond the hurt feelings of the individual family member.

The issue of costs is important in estate litigation, as it is in all civil litigation. In general civil litigation, costs can be awarded for or against either the plaintiff or the defendant. In estate litigation, however, courts historically have been inclined to grant costs out of the estate, regardless of the result of the litigation. This traditionally led to frivolous claims against estates because the litigant with a weak case had little to lose financially because costs would be borne by the estate.

In recent years, however, courts have ordered that the unsuccessful party pay the legal costs, or a part thereof, of the successful party, which clearly requires prospective litigants to consider the actual merits of their cases.

CONCLUSIONS

A will can be a powerful instrument in sustaining a healthy family tradition or an equally powerful instrument in wreaking family destruction and dissolution after death, to no one’s ultimate benefit. Every adult should have a will, and that will should be prepared with professional help. The services of a lawyer are a necessity in every case, and in some cases, especially where there is a history of contention and division within the family, the assistance of a third-party counsellor may also be appropriate and helpful.

Perhaps, most crucially, the terms of a parent’s will should never come as a surprise to the children or other survivors. Every member of the family should be made aware of the will’s contents and understand why it was structured the way it was, before death occurs, which is to say, virtually as soon as the will has been prepared. A will that is ‘hidden’ (9) from children until after death is one that is likely to contain statements that the parent was afraid or embarrassed to say in life. If that is the case, the parent would be well advised to look very carefully at his or her own motives and the likely consequences of the will on the family before it is too late.