Legal Resource Guide

2012

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WILLS AND ESTATES WILL POWER A PROBLEMS CAN ARISE OVER WHO GETS THE FAMILY COTTAGE BY GRETCHEN DRUMMIE h, the cottage. Who would imagine the idyllic getaway that gives a family tremen- dous pleasure creating snapshot memories of toddlers paddling off the dock may also be the blunt instrument that can wrench the adult siblings apart after their parents pass away. "People get very sentimental about the cottage when a parent dies, even if they haven't been there for 20 years," says Felice Kirsh, a partner with Schnurr Kirsh Schnurr Oelbaum Tator LLP, where she practises estate and trust litigation. Kirsh says she has seen a variety of cottage-related estate issues arise that might have resulted in less heartache and legal fees if sen- timent were removed from the equation. "Let's take the typical situation where the parents have three adult children and one has been using the cottage for the last number of years with his or her family, while the second one doesn't want to use it, and the third doesn't because they are out of town so it's not accessible," says Kirsh. "Somehow the one who's been using it might get it in their head it will be bequeathed to them, and oftentimes it's not. If parents are going to divide their estate among their three children then it is divided. The last parent dying may say, 'Everything to my three children,' but that might cause a prob- lem for the child who thought it should go to them." Kirsh says among the issues that need to be addressed is whether the parents should tell the kids what they're planning to do in advance. Estate planning is typically private, she says. "After all, it is what you want to do. You're the one with the assets accumulated over your lifetime and so do you really 20 want to talk about it with your children? You don't typically go to your adult children and say, 'I'm going to buy a car today, what do you think?' It's none of their business," says Kirsh. "The other way of thinking is that if you're going to do something in your estate plan that is unusual, or you're going to benefit one of your kids, or there is something they might not expect, isn't it better to tell them first? Because then what- ever the fallout is will happen while you're still alive and every- body can deal with it," says Kirsh. "There are two sides of the argument and I think you have to know your players to decide which is the best route to follow." In fact, lawyers are increasingly suggesting to parents with respect to the cottage issue to have a family meeting to explain the decision, says Kirsh. But she says some parents decide, "'You know what, I'm going to do what I'm going to do and if people don't like it, I don't care, I'm not going to be here.' That might be a bit flip- pant, but I do respect that view. They might think, 'Do I want to tell everybody and start having meetings? Do I want to spend the last X years of my life dealing with my kids and what they want and don't want?'" Disgruntled siblings, who learn in advance that they're going to be cut out of the cottage in the will, can't take legal action until the last parent dies, because nothing has actually happened yet, says Kirsh. But, if "someone has actually gone ahead and said, 'I'm 85, 90, I'm going to transfer my cottage today to Child One, and Child Two and Child Three find out, then yes, you could have legal proceedings that say that conveyance was invalid, that the parent was unduly influenced to make the conveyance, or the parent didn't have capacity to

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