THE BLOG

There's One in Every Family ...

07/29/2008 05:12 am ET | Updated Nov 17, 2011

The title is a line from Disney's The Lion King. As an estates lawyer, I see Disney stories, from Cinderella (her dad dies leaving everything to her step-mother) to The Lion King ("Why did he get to be King?") as examples of estates gone awry. An occupational hazard, I guess ....

As I said in my earlier blog, estate disputes are usually about the past. They are often the means for siblings to express their long held feelings towards one another and towards their now deceased parents.

Even though every family is different, there are similarities in the roles and personalities adopted by the participants in an estate fight. Siblings often assume the same roles in the estate dispute that they have played in the family since childhood. Whether the role was that of "big brother" -- telling everyone what to do, or as the spoiled "baby" who got everything she wanted from mom and dad, or the "mediator" who was sought out by the other siblings to join their side of any particular childhood dispute -- those roles are likely to be played over again when mom and dad pass away.

I recall one client complaining about the fact that her brother made a unilateral decision about which bank should be used to hold the estate funds. Did it really matter, I asked? Her response ... "He's been getting away with it since we were kids. I'm finally going to stand up to him."

Another client kept harping back to when they were kids and his sister always got to decide what was going to go on the pizza that the family ordered.

In other types of litigation, you may not know the person you are suing. This is not the case in estate litigation. In most estate disputes, the participants know each other better than anyone else in the world.

You can probably identify some of these personality types in your own family:

a) The Controller

The personality of The Controller tends to reflect a history of "getting his own way." The Controller is used to having a position of authority, and expects that others will yield to his or her views. There is only harmony when he or she gets his or her own way. He or she will do anything he or she can to impose his or her own views on anyone who might stand in the way.
Suppose that The Controller is the sole executor. The Controller disregards the beneficiaries' requests that the home be kept. Those requests reflect their childhood memories of the home, which has been in the family for two generations. The Controller's response to the beneficiaries is: "Mom put me in charge. I know best."

Let's look at the other side of the coin. In Mom's Will, The Controller was not named as an executor. Here, even though he has no legal power under the will to make decisions, he will still seek to impose his views on the executor. He may do this by demanding to be advised of every potential decision. He will be scrutinizing every move the executor makes and will be looking for any way to remove and replace the executor.

b) The Aggressive One

Although this character may not be empowered by legal authority, he or she still does all he or she can to fulfill his or her own wishes through aggressive means. As soon as Dad dies, he may rush over to Dad's home. In that way, he will be the first through the door to take the pictures off the wall in Dad's home, even before his funeral. Other times, he mirrors the school yard bully, displaying his temper wherever necessary, through yelling, threats, insults and intimidation. Like The Controller, he wants his own way. The Aggressive One wants to create fear so that his opponents give up all or most of what the Aggressive One wishes to take.

Is either of the personalities we described above indicative of your brother or sister? If so, then how do you deal with them? In dealing with your controlling or aggressive sibling in an estate, you may consider the following approaches:

• Try to give some, but not absolute, control to him. In the case of The Controller, he never likes to be told what he must do. Involving him in the process is important. Requesting his opinion on decisions is one way to give him the feeling that he has some control.

• If you present logical and reasonable suggestions to your opponent, he has only two options: either agree with you, or reject your reasonable suggestions. Bear in mind that if you present reasonable suggestions to your opponent in writing, and he accepts them, you win. If he rejects these written reasonable suggestions, you have the beginning of a paper trail that a court will be able to follow. Your sibling's rejection of your reasonable proposal will reflect badly on him in court.

• The more unreasonable your sibling is, the more reasonable you should be. This means documenting the exchanges between you and your sibling as much as possible, bearing in mind that judges like reasonable people and dislike unreasonable ones. In some cases, where there is a clear contrast between your reasonable position and your sibling's unreasonable one, the day may come when even your sibling's own lawyer will advise him or her to yield to you to avoid losing in court.

• Never yield to the temptation to be unreasonable yourself. Don't let your emotions override sound judgment.

• If you are an executor faced with a beneficiary who is an Aggressive One or a Controller, it is important to keep very detailed records and respond to his or her communications within a reasonable time. The executor should avoid "cutting corners." Even though he may be your sibling, you should treat him like a person with whom you are doing business.

• Where you suspect that the Aggressive One is going to enter Mom's home to remove personal items, there are some pre-emptive steps you may consider. You may want to put valuables into storage, change the locks, hire a security guard, or at least notify the entire family that no one should enter Mom's home until her estate is settled.

The good news is that you probably know what to expect from your siblings.

The bad news is that you probably know what to expect from your siblings.

I'll look at some other personalities, such as "the Victim" and "the Peacemaker" in my next blog.

I wish you family peace.

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