The Fractured Family, Estate Litigation in Complex, Blended and Extended Families in an Era of Social and Demographic Change*

The family fight following a death is not a modern development. Historical case reports and recent ones alike, are rife with examples of squabbles between parents and children, brothers and sisters, aunts and uncles, nieces, nephews and cousins who have looked to the legal system to resolver their differences.

The distinctly modern development is the volume of cases involving blended, complex or fractured families (“complex families”). These are cases where a spouse has remarried or entered into a new common law relationship, where partners have children from multiple relationships – or both – and a dispute arises between different factions of the complex family that are connected to each other only through the deceased.

An interesting distinction can be drawn between the internecine disputes of families related by blood, on the one hand, and the disputes that arise in complex families, on the other. By default, blood-related families have well-aligned interests. The disputes in these more traditional families tend to arise through personal grievance or bad conduct. In these cases, the dispute arises because of a surprise in the Will or a breakdown of relationships after the death. If the dispute was not a surprise, it is often attributable in some way to the deceased, or an expectant heir spoiling for a fight.

By contrast, in complex families, the conflict after death is rarely a late-breaking surprise. In complex families, the competing claims arise more automatically and from the outset of the complex relationship. There need be no spark of personal conflict to set parties against each other.

Therefore, a unique and important feature of complex families is that the potential disputes can often be foreseen. In complex families, there often is opportunity to plan in such a way so as to avoid disputes. Despite this opportunity, there is a significant amount of litigation involving complex families.

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Presented by Kimberly A. Whaley at the LSUC Solo and Small Firm Conference May 23-24, 2013.

Kimberly A. Whaley is the founder and principal of the Toronto law firm, Whaley Estate Litigation. She is also a solicitor of the Supreme Court of England and Wales.

*This paper is an updated version of papers that have been previously presented by Kimberly Whaley for LSUC, Estates and Trusts Summit, November 2012.


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