article on legacy planning and family estate conferencing

1. A PLACE FOR MEDIATION
LEGACY PLANNING
Lorraine Joynt, MCA, mediator/facilitator,www.aplaceformediation.ca, 416-967-9432 ext.22,
Ruth Edelstein, MA, mediator, www.aplaceformediation.ca,416-967-9432, ext 60, Linda
Somers, Legacy Coach, www.will-help.com 416 – 638-3838
Value of Legacy Planning
Have you ever thought about what happens after you die? Do you have pictures of your family
remembering you fondly? Think again. Chances are instead your heirs will be battling each other
over your estate, and might end up not talking to each other for years and in some cases never
again. Consider this scenario - Anne had three daughters. The oldest predeceased her, the second,
Carol is a substance abuser, and Lisa, the youngest is a successful business woman. Anne
continually argued with her daughter Carol, accusing her of theft. Lisa was the one who looked
after her mother, visiting her regularly in the nursing home. Anne decided to punish Carol, leaving
her only a minimal amount of money and the bulk of this large estate went to Lisa. The outcome
was predictable. The sisters no longer speak. Lisa now laments she does not have a sister or mother
to talk to and wonders what could have been done to prevent the death of the family.
Canadian society does not like to talk about death as it is a taboo subject that often frightens us. Yet
what happens after the death of a parent can be even more upsetting. The tension usually starts at
the funeral. One child wants a certain family or cultural ritual to be followed, and the suggestion is
dismissed by the others. The children then read the will and discover their parent has either only
outlined the basics to them and there are surprises or only one sibling has full knowledge of the
will’s contents or the will is perceived as unfair.
How many times have you listened to your friends say they are no longer speaking with a sibling?
Or perhaps wonder what they did to hurt their parents after being disinherited without prior
knowledge?
Our aims are to help parents understand the value of an open dialogue with their adult children, to
dilute the power of the taboo in talking about death, to encourage an awareness of the potential
consequences of estate planning on all family members and to provide a strategy to make this last
transition meaningful, loving, and compassionate. We will be introducing tools and concepts to
help mitigate some of the harm done by wills written from a one-sided perspective and with little
consideration of the effect on others.
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2. Guiding Principles
We offer the following four Legacy Principles to help guide you.
Create a Hopeful Vision for the Future
It is commonplace for organizations to conduct strategic planning activities to ensure the
organization's long term survival. This strategizing typically includes creation of a vision and
mission statement, definition of critical success factors and operational plans that direct the efforts
of staff to take the organization into the future. We suggest that individuals can use the same
process in preparing their own estate plans when deciding on the distribution of property,
possessions, and capital. Focus on the positive outcomes you wish to engender within your family,
friends, and community through your written legacy.
Provide Meaningful Explanations of your Hopes and Intentions
Traditional estate plans typically focus on matters such as taxes, trusts, powers of attorney,
beneficiaries, and distribution of property. The traditional will is written in a legalistic,
dispassionate manner and usually kept secret until the time of death, too often resulting in
suspicion and distrust among family members. Our legacy planning philosophy encourages you to
share your intentions, hopes, and concerns with your family in order to help them understand your
motivations and lessen the possibility of negative or misinformed interpretations of your decisions.
Approach Estate Planning as a Reflection of Your Values
Thoughtful estate planning enables us to reflect upon our lives. It is a contemplative exercise that
can help to give coherence and meaning to the events and choices that have formed and directed
how we have lived our lives. By engaging our families in discussion, we are encouraging our loved
ones to be explicit about these matters and therefore are better able to communicate to our families
and communities the significance of the gifts we choose to leave to them.
Consider the Enduring Impact of Your Legacy on All your Family’s Generations
The family is a complex institution that can provide love and support to its members, or create
whirlpools of hurt and despair. Conventional estate plans are often a sad reflection of the
dysfunction that can occur within families as children are disinherited, decisions are made that
thwart reconciliations, and the pain is continued through generations. By shifting the primary focus
to how we want relationships to be within the family and our wider concerns about community
after we are gone, subsequent decisions about money, property and possessions flow from a
foundation of compassion and care. We invite the reader to reflect upon how thoughtful estate
planning, which focuses on hopes, values, and the meaning of a life well led forms the basis for a
true and lasting legacy of hopefulness for generations.
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3. Two Tools of Legacy Planning
Legacy Coaching and Family Conference Mediation are two tools to help you take charge of your
legacy.
Coaching
Before the formal estate planning work begins with a legal or financial expert, it is often helpful to
engage a Legacy Coach who can help you to explore some of the critical issues. There are many
sensitive topics that parents face during the estate planning process and estate planners do not have
either the training or time to invest in complicated family dynamics.
Here are a few of the many dilemmas and questions faced by parents.
One of the first considerations is whether the estate should be divided evenly among all the
children. There are some difficult decisions to be made if one child is estranged while other
children are attentive and loving. Other issues include disabled children needing extra care and
financially irresponsible children you think might squander their inheritance.
The next issue becomes the division of your possessions. Do you really want the children to argue
over the family cottage? Would it not be helpful to have this discussion while you are alive, so
everyone has a better understanding of your intentions? It is not unusual to find that one child has
more attachment to the cottage than the others. In this way you can decide if you want to leave the
cottage to the one child, and compensate the other children. Do not forget about the grandchildren.
You may assume that the adult children will pass estate funds and property to their children. This
does not always happen, so if you wish for a grandchild to have a specific item or some money you
should make your intentions known.
What charities or foundations are important to you? You may want to specify the organizations to
which you wish to leave any endowments. Another innovative idea is to start your own foundation
or scholarship fund. This would leave a real lasting legacy.
The estate trustee plays a critical role and should be carefully selected to ensure the smooth
management of the parent's wishes, as well as family relationships that will be affected while the
estate is being closed. If the person is not one of the beneficiaries, be sure to involve the trustee in
family discussions to clarify how everyone will communicate and make decisions.
A Legacy Coach is trained in both coaching skills and family dynamics and is a useful resource to
help you explore concerns and make decisions that reflect your values and hopes for the next
generation.
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4. Family Conference Mediation
A Family Conference is a useful method to pre-emptively deal with divisive issues that affect the
family. The conference brings families together while the parents are alive to review the estate plan
and to address potential painful conflict within the family. A professionally trained mediator assists
the family in resolving issues about the estate and aims to reach agreement among all the
participants. Mediation can not only prevent potential legal disputes, but is less costly than a court
process in the unfortunate event of a challenge to the will. Most importantly, mediation can help to
strengthen relationships within the family.
You can protect your family from disasters such as the one faced by Lisa and Carol. With the
mediator’s help, you will tell family members about your estate plan and obtain their
understanding and hopefully approval of that plan.
To start a family conference, you first need to arrange for a family conference mediator and
together you decide on a neutral location and time. The next step is to invite the adult family
members and obtain their written consent to participate. During the preparation period, you will
need to decide on an agenda so the conference can be kept on track and all your information is
presented.
The goal of the family conference is to have all family members sign a Family Conference
Agreement approving the estate plan and agreeing not to contest the will. It also reviews the
parent’s wishes and any amendments that have been reached during the family conference. If the
meeting goes well, this can happen in a single session. In some cases, subsequent meetings will
need to be held. Once the conference is completed, the mediator will draw up the Agreement. All
family members sign the document and each one is given a copy.
After the Family Agreement is signed, your lawyer and other professional advisors will prepare the
necessary documents, including wills, trusts, powers of attorney, and deeds of gift, to implement
your estate plan. Once that is done, you need to be diligent in reviewing the estate plan to make
sure it reflects your wishes.
If the situation arises that a family member refuses to attend the conference it should still continue
with as many family members as possible. The mediator will talk to this person and try to establish
reasons for the absence. If a family member refuses to sign the agreement, their reason for not
signing should be documented in case there are challenges to the estate at a later date. This will
make it difficult to prove incapacity or undue influence.
Family Conferencing can also be utilized in the succession planning of a family business so that
both the business and family relationships survive. The conference aim is to design a family
council with a responsibility to develop mechanisms to reach consensus, make effective decisions,
and overcome impasses about the direction of the company.
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5. One of the major benefits of the family conference is the fostering of family ties. You are not left
wondering what happens after your funeral, but instead, have the reassurance that your children
will be sharing memories instead of arguing over money.
The sad and all too common story of Anne and the estrangement between her two daughters might
have been avoided if Legacy Planning tools were used. Estate planning is sometimes referred to as
a ritual to our last transition. Our hope is that you will decide to make this last transition about
your legacy.
September 2008