To work in the field of contentious trusts and probate is to experience a vast array of different relationships and circumstances. No two cases are the same, but there are certain cases which share familiar dynamics and characteristics. This is particularly true in cases that involve biological siblings. This article is intended to be nothing more than a brief reflection on what I have observed about biological sibling cases over my years in practice, but if it can help even one family avoid having to resort to lawyers, then it will have achieved a good aim.
The majority of cases involving siblings come to us on the death of the second parent. This is usually because such cases often involve what one might call ‘traditional’ families: one parent dies first, leaving everything to the surviving parent, with the dispute then crystalising on the second death. By contrast, cases involving ‘blended’ families often flare up on the death of the first parent, with there being a risk of one family’s assets being seen to pass to another. In such cases, which often involve the surviving partner or spouse revoking an earlier mirror will, it is almost always the case that groups of biological siblings stick together in order to fight the ‘other family.’
Returning to the ‘traditional’ family scenario, most biological siblings will toe the line after the death of the first parent and support the surviving parent within their own definition. When the last parent dies, the following elements frequently crop up which can foster hostilities and which are particular to biological sibling cases (in no particular order, as lawyers are fond of saying):
a. The surviving parent often dictates where the entirety of the familial assets will go and this person may have developed very different views to those held when both parents were acting as a unit. One sibling will often accuse another of having a part in this change of opinion.
b. Where a family has spread geographically, it is common for siblings to frame ‘who did what’ in terms of who was closer or further away from the surviving parent. The sibling who was close, and who usually shoulders the greater burden of care, often frames the far away sibling as having been uncaring, feckless and estranged. The sibling who lives further away, and who will always believe they did as much as they could, sees the closer sibling as controlling, money-grabbing and exclusionary.
c. Linked to perceptions of who shouldered the care burden, sibling cases often involve entrenched views as to who is or is not more deserving. This commonly interlinks with assessments of how financially successful certain siblings have been compared to others. If a sibling has married into money, then this can create even more of a disparity in views as to what constitutes ‘fairness’. The voice of the deceased is usually completely lost in such cases.
d. History perhaps plays the strongest hand in fuelling disputes involving biological siblings. Almost all of us will reinvent ourselves at different points in our lives, but your siblings will always claim to know ‘the real you.’ There is some truth to this, as siblings who grow up together have an intimate and personal shared history. But this can unfairly lead to people freezing their opinion of their siblings at a certain point in time; refusing to imagine that they can change. In reality, almost all of us will change significantly when we have left home, and this is usually outside the gaze of one’s sibling.
e. Whether or not someone has or has not changed can sometimes be a moot point if there are scores to settle or wrongs to right from the past. Historical grievances can often be the primary driver of disputes, the subject of which often has limited legal relevance.
f. All siblings are dealing with losing their parents, and everyone deals with this in a different way. As a result of grieving, and without either mum or dad being around anymore, it is common for siblings to try to control the narrative and to reframe their relationship with their parents. Almost all siblings believe that they had the inside track on what their parents really felt about the others. Sadly, this yearning for control based on knowing ‘the truth’ about how their parents felt, can lead to some of the most internecine and pointless cases of all. Siblings can fall out even if there is no dispute as to where the money goes. In these cases, it is about who controls the administration process and who was trusted.
g. Parents often keep disparate children together; whether through family traditions, care needs or the simple fact of geography and children needing to return to visit one singular place. When the senior glue disappears at the head of a family, siblings can sometimes find that they have nothing further to hold them together, or to stop them from dissolving their relationship altogether. Perversely, this can sometimes lead to siblings trying to cling onto a dispute, whether or not it is intentional. Somewhere inside they know that when it is all over they will never see their sibling again, and sometimes people are not ready for this.
I do not set out the above to belittle sibling cases, nor is it my intention to over-simplify the unique circumstances which each family experiences. No decent lawyer should ever take on a case without legal merit, so my experience is derived entirely from cases which had genuine and serious legal issues to resolve. I share the above solely to highlight how the idiosyncratic elements of certain cases can cause substantially increased costs and acrimony for little to no gain. The law is a blunt instrument and it will never provide the moral judgement or affirmation as to past behaviour that many siblings seek. Strong emotion is the antithesis of reason, pragmatism and being solution-focused, and cases involving biological siblings often involve the most heated emotions of all cases.
Richard Thomas, Partner
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