Today’s blog was written by Karen La Caprara, Counsel, at Fasken Martineau DuMoulin LLP.

This being my first All About Estates blog, I thought I would make it a personal one. So, as an introduction, I decided that I would share my family experience that contributed to my decision to practice in the area of wills and estates.[1] I won’t get into the nitty gritty of all that went down, for various reasons, including that much of it I don’t know as I was a child at the time. Suffice it to say, if I included all of the unverified details that I’ve heard over the years, you might think it could be turned into a very bingeable HBO or Netflix series.

My maternal grandparents were both born to working class parents with limited assets. My grandfather, however, though not a terribly wonderful husband or father, had a mind for business and managed, with very little education, to build up quite a bit of wealth. An amount that by all accounts should have been more than enough to provide for his family, including my grandmother, my mother and her siblings, and also to support his grandchildren’s education and more.

But when he passed away in his mid-fifties, following a diagnosis of cancer, things quickly went awry. Having revised his estate planning on his deathbed, he appointed his oldest son (of his six children) together with his lawyer to act as his executors and trustees. The lawyer, however, choose not to act, and so my uncle acted alone as executor and trustee. My grandmother, my mother and her siblings trusted the trustee (being their son or brother, respectively), to carry on the family enterprise and treat them fairly and as intended by their deceased husband/father. After all, he was the well-educated son who had been most involved in the business. Unfortunately, they came to realize that their trust had been misplaced. While they initially received the support that they had received prior to my grandfather’s death, as expected, the support  declined dramatically over time. My uncle and his immediate family continued to live a very privileged life, while he made one bad business and investment decision after another. My grandmother was forced to move from her home and downsize numerous times, while her son mortgaged her house to fund his mistakes. She was placed on a tighter and tighter budget, to the point where I recall her being upset because she couldn’t afford to buy birthday gifts for her grandchildren. In the end, she was forced to accept (gratefully) financial support from two of her sons-in-law and she lived her last years in a care home that, though staffed with caring people, was not what it should have been. Thankfully when she passed in her early eighties she was surrounded by loving family. She had no estate of her own to pass to her children or grandchildren though. While I didn’t often hear her complain about her circumstances, I could see how difficult it was for her and how much it hurt her. For my mother and her siblings, they also were gradually forced to move from their homes and live on tighter and tighter budgets. Again, while their brother continued to live in luxury, supported by the family wealth. As for the grandchildren, I believe my oldest cousin got a few years of university paid for. The rest of us were on our own.

First of all, I recognize that my family was still relatively privileged, and that no one went without food, clothing or shelter. But how could my family’s wealth be lost so quickly? I have not seen my grandfather’s last will but even without it, what are some lessons that I can take from this experience and how can I use it to inform the advice that I give clients who are seeking guidance with respect to their estate plan, or in their role as an executor and trustee, or as a beneficiary of an estate? Some thoughts that come to mind:

1. Did my grandfather have capacity to revise his will on his deathbed? Was he unduly influenced by my uncle? As a beneficiary of an estate, where the Will seems to provide such unchecked power to one of numerous interested parties, this would certainly be important to consider.
2. How did one of six children end up having complete control of this sizable estate? Should there have been a minimum number of trustees? Should there have been a requirement that there be one or more independent trustees at all times? What other safeguards could have been put in place to keep the trustee in check? Thinking realistically about who is being appointed as executor(s)/trustee(s) and how the interests of various beneficiaries are to be protected is critically important.
3. While many testators are loath to discuss their estate plans and Will with their family members, would the outcome in my family have been different if my grandmother and my mother and her siblings were aware of the plan and my grandfather’s intentions?
4. What could my grandmother and my mother have done to protect themselves? My uncle did not provide them with the information that they were entitled to as beneficiaries – they were expected to trust him. Knowing what can happen when that trust is misplaced, I would always recommend that beneficiaries ensure they are receiving the information that they are entitled to, review that information and ask questions. Do not hesitate because you feel that doing so will be perceived as greedy or because the executor may take offense (thinking that you don’t trust them). It is your right and responsibility to be informed, and it can help give effect to the deceased’s intentions. Most testators, thankfully, want to provide for their surviving spouse and children as best they can. Helping that along, as an informed beneficiary, can assist. It does not need to be an adversarial process.
5. That said, if as a beneficiary, you are uncertain if you have received the information you are entitled to, if you sense that the executor isn’t being transparent, if there is anything questionable or fishy at all, trust your gut and please consult with an experienced estates practitioner. Maybe something improper is going on or maybe it’s not. Either way, it will be money well spent to be informed and understand your rights. Don’t “wait and see” until it is too late, as my grandmother and mother unfortunately did.

As I was incurring much debt putting myself through undergrad and law school, I may have occasionally wished that the intended grandchildren education trust had been properly funded and administered. Far more difficult though was seeing what my grandmother went through. She did not have an easy life with my grandfather, and she deserved much better treatment in her later years. I have found over time that there are so many lessons to be learned through this experience. It is rewarding to know that with good and thoughtful planning we, as estate planners, can help our clients avoid much of what went wrong in my grandfather’s estate. I guess that’s my inheritance from the family enterprise?!?

[1] Please note that I received my mother’s permission to share this story – she even encouraged me to share more of the details. Despite the introduction though, my intention is not to tell a juicy story but rather to provide another illustration (unfortunately, there are many) of how important a well-structured and realistic estate plan is. The executors/trustees and my grandmother, as noted, are deceased.