Updated: 26 January 2024
… an interview* with refreshingly honest observations from a specialist lawyer …
After 37 years in legal practice, there isn’t much that still surprises Rod Genders.
He’s pretty much seen it all.
His law firm is the oldest in South Australia – established in 1848 – and like his father and his grandfather before him, Genders has spent his entire working life in the law, helping generations of Australian families to sort out a multitude of legal issues.
His areas of expertise are Wills and estates, and he describes witnessing a massive increase in litigation in these areas.
“There are some early warning signs that are good predicters of problems likely to come,” he says.
“Grieving for a lost family member is sad and stressful by itself – it doesn’t need the added pain of family warfare to make it worse. In an estate dispute, the only people guaranteed to benefit are the lawyers. I’m already fat enough.”
Genders smiles as he pats his substantial belly. Standing at 6’4” Genders is a big man, and he has an imposing presence.
I have made my Will with him, and I am glad to have his strength and knowledge on my side.
His friendly smile is offset just slightly by the direct gaze from his blue eyes that convey a shrewd intelligence, and hint at having witnessed some of the worst of human behaviour.
I ask him about this, and he sighs.
“Sadly, I’ve seen many families where competing beneficiaries have become so estranged that they couldn’t agree on the colour of an orange. When that sort of hostility and mistrust bleeds over into litigation about a deceased estate, relationships – even entire families – can be destroyed forever. It is a terrible thing to witness.”
I ask if the lawyers themselves are not a little to blame for some of this. He agrees, but adds: “Lawyers who specialise in this area – there are not that many of us – can typically assist our clients to negotiate a sensible resolution before things get out of hand. But when one party is represented by a lawyer who doesn’t really know what they are doing, then the adversarial litigation system can be exploited under the guise of aggressive advocacy. Everything takes longer and costs more, and the whole profession gets tarred with the same brush.”
So what are some things people can do to avoid or minimise these problems, I ask.
Genders looks reflective, and says: “Once the Will-maker has died, the best thing the family can do is instruct a lawyer who specialises in this area of law, and then try to be reasonable in negotiating a settlement. But all too often the problems occurred before the death of the Will-maker, and there will typically have been early-warning signs that were depressingly obvious to anyone who cared to see them. Estate disputes rarely come out of nowhere. Often they can be anticipated and even avoided.”
I ask him to provide some illustrations, and these are the seven warning signs he said could indicate that there might be strife in your family after you’re gone.
1. Sibling rivalry
A parent’s death is a major test of any tension brothers and sisters think they’ve overcome.
Old resentments and rivalries are triggered by grief, recalling memories of hurts that were never healed.
As a result, the settlement of an estate can unfortunately become a battleground for the settlement of old scores.
Look out for … siblings (children of the Will-maker) who snipe at each other, try to out-do each other, badmouth each other (especially to the Will-maker).
Address it by … appointing an independent Executor and Trustee of the Will, perhaps a professional adviser — or at least someone disassociated with the rivalry — which can mitigate its effects.
2. Economic disparity among beneficiaries
An imbalance in the socio-economic status of an estate’s beneficiaries is enough to destabilise the whole proceeding.
For instance, where a wealthy inheritor can afford to hold on to an asset, their less privileged counterpart(s) may need to sell it to provide for their immediate needs.
Look out for … one or more children of the Will-maker being substantially better-or-worse-off financially than the others. Such a difference in means and needs can often spell trouble when dividing the assets of a deceased parent.
Address it by … leaving specific instructions as to the sale (or preservation) of real property, which lies at the centre of most of these disputes.
3. Co-trustees
There’s a good reason why there’s only one CEO or President or Chair of most organisations. Too many people in decision-making roles leads to ‘group-think’ where there is lots of talk (and arguments) and not much action.
Executors should be swift and decisive, which is why Genders recommends in some estates not naming more than one primary executor to administer an estate.
“Even if two people get along 90 percent of the time, that ten percent can lead to problems,” he says. “Where there is a significant likelihood of tension between family members, it is best to appoint one primary executor and another substitute executor, rather than appointing both together as joint executors.”
Look out for … stubborn or strong-willed siblings who have a history of competing against each other.
Address it by… appointing a single primary executor – possibly an independent person – as well as a substitute.
4. Undue influence and accelerated inheritance
Often, in cases of end-of-life care there’s one person who ends up doing most of the caretaking. The advancing age of Baby Boomers means that more of them are requiring care, and for longer periods.
It also means that they are frequently more vulnerable to being taken-advantage-of.
Lawyers like Genders are seeing more cases than ever of elder abuse in the form of coercion, fraud and theft by the caregiver of the deceased for personal gain.
Sometimes the caregiver feels a sense of entitlement – of having earned more than their siblings, because the caregiver perceives themselves as more noble in doing work for their ageing parent, and therefore they feel they should be entitled to a greater share of the estate.
Sometimes the (adult) child convinces themselves that it is OK to ‘dip-into’ their parent’s funds while they are still alive, using the argument that the child will get that money as inheritance in a little while anyway. Again, they feel entitled. However it is criminal behaviour.
Look out for … one family member becoming very protective of their special relationship with the ageing parent, especially if that parent is fragile or vulnerable.
If other family members are kept away, or if the parent is guarded or kept isolated, be concerned.
Address it by… caring consistently for your parents. Stay in touch frequently. Drop in unexpectedly.
Genders says undue influence is most often a product of offspring apathy and can be prevented by paying attention to the increasing susceptibility of an ageing parent.
Children with great parental relationships rarely fall victim to this, according to Genders.
5. Estrangement or disinheritance
Children or other disappointed potential beneficiaries have little to lose by challenging their exclusion from it.
The situation worsens in the case of blended families (where there are children from prior relationships).
Competing factions within the family can tear it apart, and cause much of the family wealth to be lost to legal fees.
As in family law, disputants in estate matters can behave irrationally, and some will willingly adopt a ‘scorched-earth’ policy to waste the estate to extended and bitter litigation, rather that allow the other side to see much benefit.
Look out for … long periods of no contact with a family member, estrangement and family feuds. If the Will-maker has a home-made Will, or it is more than about 5 years old, be concerned.
Address it by … creating a valid and well-made Will with a lawyer who specialises in Wills and estates, AND keep it up to date.
In the event of a challenge, the first thing the Court considers is the age of the Will.
If it is more than about 5 years old, the Court may conclude that it no longer accurately reflects the testator’s intentions at date of death. Genders says that Courts have gone on record as describing homemade Wills as a curse.
“DIY Wills have worse odds than Russian roulette, and the consequences for your family are just as bad. Don’t risk it.”
6. Late marriage
Love is lovelier the second time around – according to the old song.
But in the administration of deceased estates, lawyers like Genders see major problems in blended families, where there is often resentment of the new spouse, especially from children of the deceased’s first marriage.
Look out for … simple Wills trying to deal with complex situations, such as blended families.
Genders says: “A typical ‘I love you’ style of Will is where the entire estate is left to the surviving spouse at first instance, and then to the kids if they are both gone. This can work in the traditional nuclear family, because the surviving spouse is also the parent of the children of that relationship. This type of Will does not work in a blended family. If the husband leaves everything to his second wife at first instance, she does not have any obligation to leave anything to his children from his first marriage (her step-children) in her own Will, meaning they could miss out altogether. This sort of situation pretty much guarantees litigation.”
Address it by … taking advice from a lawyer who specialises in Wills and estates to create a careful and well-made Will to protect all interested parties, AND keep it up to date.
7. Gifts and loans to one beneficiary and not the other(s)
Genders says that a common issue is where a loving parent has given a gift or loan to one child, and not properly documenting this, or reflecting it in their Will.
Whether it’s start-up funding for a fledgling business, a deposit for a first home or college, or bailout money for suffocating debt, it’s not uncommon for an older relative to help out a younger relative financially.
However that younger person can eventually become a beneficiary under the Will of the older person, and how that gift or loan is dealt-with can strain relations among beneficiaries who didn’t receive the same earlier benefit.
Look out for … large loans or gifts that are not documented, and aren’t reflected in the Will.
Address it by … documenting each gift or loan in a separate agreement, and reflecting it in the Will.
This might be a forgiveness of a debt, or an adjustment of gifts between beneficiaries to account for the prior gift as an advancement on inheritance.
Genders and Partners is the oldest law firm in South Australia, established 1848. Contact them to learn how to protect yourself, your family and your assets through modern integrated estate planning solutions, by visiting our website today and schedule a free no obligation telephone consultation to find out how they can help you and yours.
Remember – any mistakes you make in your estate planning documents won’t become apparent until after it’s too late for you to fix them. Get proper advice, and do it right.
It is also vitally important that you keep your estate plan up to date – it is not a set-and-forget exercise.
To learn how to protect yourself, your family and your assets, by creating a professionally-made estate plan, claim your FREE 15 minute Telephone Consultation
*Part of an interview between Rod Genders and Charles Makarewicz 15 March 2021.
SPECIAL REPORT “7 Things You Must Know Before You Make Your Will”
In this report you will Learn:
Why home-made Wills can be a LOT more expensive than you might think.
The secret weapons used by the rich & powerful to protect their assets, and transfer their wealth two or three generations ahead.
How Estate and Trustee Companies make BIG money from “free” Wills.
The Most Common Estate Planning Mistakes, how they can cost your family a fortune, and How to Avoid Them.
The Elements of a Sound Estate Plan – why a Will alone is not enough.
How to Make Sure Your Assets Stay in Your Family and are not lost to creditors, lawsuits or ex-spouses.
How to guard against challenges to your Estate after you’re gone.