Where There’s a Will … : Law and Emotion in Sibling Inheritance Disputes

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Where There’s a Will … : Law and Emotion in Sibling Inheritance Disputes

HEATHER CONWAY^*

I.Introduction

Succession law affects all families at an emotionally vulnerable time. As the family unit struggles to adapt to the loss of a key figure, estate distributions are a frequent source of conflict within common law systems, where the core value of testamentary freedom allows an individual to bequeath property on death as they see fit.¹ One of the most bitter examples occurs between adult children, following the death of their sole surviving parent.² While children are regarded as the ‘natural’ recipients of parental assets and the majority of wills reflect this,³ modern distributive patterns favour equal treatment—a socially constructed norm that emerged in the late-twentieth century in Britain and other Western countries.⁴ As a result, disputes invariably occur when one child receives a larger share of the net financial estate than another or (in a more extreme scenario) inherits everything to the exclusion of his/her siblings; the allocation of specific items of property creates a similar effect where one child is given the family home or other symbolic realty,⁵ or parental possessions imbued with monetary or sentimental worth. The financial consequences of an uneven distribution can be severe, with comparatively high levels of personal wealth among the ‘baby boomers’⁶ creating larger estates to pass on.⁷ However, the emotional consequences are just as serious; inheritance inequities (whether real or perceived) are a perfect breeding ground for acrimony and rancour which rupture family ties.

Of course emotions run through many legal disputes, and private law actions are no exception—even in the average tort, contract or property claim where the parties are transacting on an ‘arm’s length’ basis. However, when private law litigants are related to each other, the emotional dynamics take on added significance. Family law disputes are typified by emotion, and, despite a comparatively slow start,⁸ the area has assumed a more prominent role in law and emotions scholarship.⁹ Within the current collection, Professor Huntingdon’s chapter on domestic relations and the ‘affective family’¹⁰ makes another important contribution to this burgeoning literature. In contrast, succession law has been largely overlooked by law and emotions scholars, despite the centrality of the family in testamentary giving and the crucial role that emotions play in inheritance disputes—especially those involving adult children following the testate death of a parent.¹¹

Sibling relationships can be fraught; these tensions can carry on for years and often come to a head when a parent dies. A will, and especially one that gives children unequal shares of the estate, can trigger a lifetime of negative feelings and drive the disappointed sibling to litigation.¹² As we shall see, a number of features make these particular contests so inherently emotional: the fact that they centre on the two most formative and enduring family relationships (parent–child, and sibling–sibling), both coloured by years of history and personal interactions; the symbolic qualities of inherited wealth, along with attachments to specific items of property; parental intent, and the significance of the will as a conscious expression of someone’s last wishes; and the personal, familial and social connotations of an uneven inheritance.

This chapter unpacks the underlying emotional narrative, identifying the complex sentiments that create and fuel inheritance disputes between adult siblings. Drawing primarily on a mix of legal, psychological and sociological literature which attributes many of these to unresolved childhood issues, it argues that estate conflicts have a distinctive contextual backdrop which exacerbates these negative feelings and ups the emotional ante even further. In keeping with the overall themes of the collection, the chapter goes on to look at how these emotions are reflected in legal processes and by legal actors. For example, while Anglo-American jurisprudence suggests a more nuanced emotional response to estate contests than in other areas of legal decision-making, the fact that judges often intervene when presented with an uneven estate distribution can indirectly reveal what they feel about sibling (or more usually) parental behaviour here. The chapter concludes by considering how the emotional fallout could be lessened, by will-makers, lawyers and the legal system being more cognisant of the underlying psychological and emotional dynamics.

II.Death and Discord: The Perfect Emotional Storm

Emotions are intrinsic to family relationships. While siblings experience a range of emotions—both positive and negative—throughout their collective lives, the death of a parent takes them into unchartered territory. Kennedy describes parental death as a ‘shattering experience’, which floods individuals with ‘powerful forces’ as the ‘boundaries of [their] world are torn away’.¹³ In many ways, this experience is not unique to siblings; the loss of any loved one is a traumatic experience as intimate bonds and personal relationships are irrevocably altered by death’s seismic forces.¹⁴ Yet, in some respects, it is more pronounced. Adult children, regardless of their age, feel anchorless and cast adrift as they mourn the loss of a lifelong relationship; the fact that death is in the natural order of things is irrelevant, as they confront an altered reality without the parent’s comforting, constant presence.¹⁵ Parental death also precipitates unprecedented change,¹⁶ forcing siblings to navigate unchartered relational territory while finding a new emotional equilibrium—both as individuals and as a group.¹⁷ Strong sibling bonds can be a source of comfort during this time, with Milvesky highlighting their compensatory value following the loss of a parent.¹⁸ Yet, while we instinctively assume that death brings families together, the reality can be very different.

Death produces a range of complex and disorientating emotions, which manifest themselves through the grieving process.¹⁹ For example, Lindemann famously identified grief as a syndrome comprising five key elements: somatic disturbance, preoccupation with the image of the deceased, guilt, hostility and disorganised behaviour.²⁰ In similar vein, Bowlby and others have analysed it as involving numbness and disbelief, anxiety and anger, depression and despair.²¹ Despite subtle variances in the overall mode of expression, psychologists concede that anger and aggression are common features of the grieving process. The inevitable and inescapable sense of change for those who are left behind results in post-mortem stress, a sense of ‘sheer pressure [which] bereavement places upon the body and mind as an integrated whole’.²² Past grievances often resurface following the death of a loved one. Emotions are running high; and where families are prone to conflict, bereavement acts as a ‘stress amplifier’,²³ putting additional strain on already fragile relationships.²⁴ However, sibling dynamics take this to another level, as unresolved childhood issues come to the fore.

Sibling bonds can last for a lifetime, making this one of the most enduring relationships that individuals can develop and foster.²⁵ Of course, few families conform to a utopian behavioural ideal, and siblings are no different. While part of a family unit, they are also unique individuals with distinct character traits, making them just as prone to personality clashes as other interpersonal relationships. At a more basic level, Brody notes that sibling relationships are ‘rarely characterized by very high levels of support along with low levels of rivalry and aggression’;²⁶ conflict is much more common. Sibling rivalry is one of the oldest emotional experiences within families, and its destructive and divisive nature has been well-documented throughout human history.²⁷ Underpinned by jealous struggles for parental attention from an early age, sibling rivalry exudes a range of feelings such as anger, anxiety, distress, resentment and worthlessness—though jealousy often predominates.²⁸ Jealousy itself is a self-critical and complex social emotion, invariably triggered by a third-party threat (whether real or apparent) to a key relationship.²⁹ In the sibling context, it represents ‘the most powerful jealousy of youth’ as the presence of a sibling rival threatens the parent–child dynamic that is the ‘most important and formative relationship of a young child’s early life’.³⁰ Parents ‘cannot attend and respond to … [all of their] children’s needs at all times’,³¹ and siblings invariably compete with each other for parental attention from an early age.³² As a result, undercurrents of sibling rivalry probably infuse everyday transactions between brothers and sisters, especially when growing up together in the same household. Yet sometimes sibling strife develops into something more, straining relationships or causing them to break down completely, and generating patterns of behaviour which siblings replicate at key stages throughout their adult lives.³³

The death of a parent is an obvious trigger, and as siblings come together—perhaps returning to their old family home, itself a ‘deeply symbolic repository of memories and grievances’³⁴—latent traits re-emerge. In the initial post-mortem period, preoccupation with funeral arrangements and fulfilling basic social and legal requirements (obtaining a death certificate, liaising with the funeral director, receiving visitors) can prevent simmering tensions from spilling over.³⁵ However, discovering the contents of a dead parent’s will often puts ‘the final nail in the coffin of … a moribund sibling connection’³⁶ as unequal (or ostensibly unjust) distributions reignite ‘old issues of sibling rivalry and dominance’.³⁷ The value of specific bequests and objects is not always important; it is the fact that the chosen estate distribution determines ‘each beneficiary’s relative importance and position in the family’³⁸ and, with adult children, is perceived as a measure of parental love and approval—regardless of the will-maker’s underlying intent.³⁹ As Safer points out, notions of parental favouritism, and who was loved more, are reinforced and perpetuated here:

Money = Love is a very old equation, one that is played out with a vengeance in siblings’ fights over the terms of their parents’ will and the distributions of their possessions. The compulsion to demonstrate, in court if necessary, that you really were your parents’ favourite (or to compensate for the fact that you were not) underlies these battles as much as greed does, and blinds people to the consequences, which will almost always include the permanent loss of their siblings’ goodwill.⁴⁰

As far as the children are concerned, any disparities in the estate distribution marks one child out as a ‘loser’ in what has been described as the ‘parental-love competition’,⁴¹ with seemingly minor issues about the distribution of parental effects becoming symbolic battlefields for resolving claims on parental affection.⁴² In many ways, estate contests are as much about deflected anger towards the dead parent as towards the other siblings,⁴³ as parental resentments resurface and are reconstituted by patterns of wealth distribution. An unequal inheritance disrupts (and in more extreme examples, destroys) what the disappointed beneficiary thought was a secure attachment relationship with their parent, developed and nurtured from childhood. The emotional needs of the child can also transcend the death of the parent, as the former craves parental validation which will now never materialise because the estate has been divided unequally, and the marginalised or excluded child has apparently been identified as less ‘worthy’ than their siblings.

What we have here is a toxic mix of negative emotions. Some of these (anger, hostility, sadness) are already lurking in the background as natural by-products of the grieving process; in the event of an uneven estate distribution, these are amplified and joined by other harmful sentiments (jealously, hurt, bitterness, disappointment and rejection, to list a few). Sibling inheritance disputes are ‘so emotionally charged that they can easily escalate’.⁴⁴ Brothers and sisters refuse to back down in their quest to negate the emotional consequences of an uneven estate distribution, and prove themselves as an equally loved and equally worthy parental heir. The underlying feelings are not only complex and all-consuming; they can also cause the disappointed sibling to engage in seemingly irrational behaviour, with disastrous consequences.⁴⁵ Destroying or dissipating estate property so that no one gets anything (what Accettura describes as the ‘scorched earth’ approach)⁴⁶ is a classic example—and in February 2013, one brother took this to extremes when he destroyed a £300,000 family home in Cardiff, Wales with a sledgehammer after falling out with his siblings following a seven-year row over inheritance.⁴⁷ Of course, exorcising the ghosts of sibling rivalry and parental favouritism does not usually have such extreme consequences. However, one brother or sister’s relentless march towards litigation is not just something which impacts on siblings; as members of an ‘interactive, independent network in which behaviour in one individual or subsystem affects the others’,⁴⁸ a ripple effect spreads across the entire family system. Other relatives are drawn into the estate contest (even if they do not want to be involved), creating an existential emotional crisis which threatens broader family harmony and stability.

III.Emotional Attachments to Property

Most wills focus on real estate and financial assets, as high value items. The family home is a good example;⁴⁹ since the property is not divisible in a practical sense, and adult children who have long since moved away are unlikely to return, a parent’s will might direct that the home be sold and the proceeds divided equally between the children. Although consistent with social norms around the post-mortem allocation of wealth,⁵⁰ such directions can be problematic for the child who is not keen on selling because of their own emotional attachment to the property⁵¹—including the sense of both individual and family identity tied up in the home.⁵² In the context of the present chapter, significant issues can arise where the parent decides to leave the family home to a particular child (often one who resided there with the parent, up until the latter’s death);⁵³ this removes a valuable legacy from the parent’s estate, and can generate anger, hurt and resentment on the part of the other siblings, regardless of the parent’s intent. Family farms are also valuable items of real property which generate strong emotional attachments, yet attract very different inheritance perceptions. Here, it is not simply a question of whether to divide the land or leave it intact;⁵⁴ farms tend to be passed down through generations,⁵⁵ traditionally to (eldest) sons.⁵⁶ Social convention allows equality to be sacrificed here, but can still generate bitterness and ill-feeling on the part of the non-farming siblings.⁵⁷ Moving on to financial resources, money and cash convertible assets such as stocks and shares can be divided in whatever way a parent sees fit—more so than any of the other types of property being looked at here. Yet, siblings will still contest any resultant economic disparity, not because of particularly strong emotional attachments to the money itself,⁵⁸ but because of what the unequal distribution symbolises and the feelings that this generates.⁵⁹

Personal possessions, in contrast, are often omitted from the distributive contents of a dead parent’s will;⁶⁰ and while real estate and money are more likely to trigger the sort of litigation discussed later in this chapter, disputes over who gets items of personal property (for example, a mother’s wedding ring or a father’s watch; photo albums; lovingly assembled collections of books, music or china; family mementoes such as Christmas ornaments and holiday souvenirs) can become just as embittered, even if they are less likely to end up in court. Any process of allocation is necessarily informal and sibling-led, but suffers from two main drawbacks. First, as items accumulated over a parent’s lifetime (and sometimes across generations of the same family), they are imbued with personal meaning and have a sentimental value unrelated to their economic worth.⁶¹ Because they symbolise the dead parent, personal possessions engender exceptionally high levels of emotional attachment;⁶² on the death of a parent, these attachments are assumed and perpetuated by the child who claims it for him/herself as an ongoing narrative of association with the deceased.⁶³ Second, the reality is that certain things (for example, a favourite painting or specific pieces of jewellery) cannot be divided, fuelling the sense of unfairness.⁶⁴ Stum highlights ‘[o]ngoing rivalries’ and issues of ‘power and control’ among siblings as influencing the transfer of personal possessions.⁶⁵ However, birth order and gender also have a role to play here—for example, a brother is more likely to claim a father’s watch than his sisters, while a mother’s wedding ring often ends up with the eldest daughter.⁶⁶

IV.The Emotional Impact of Wills

Mayersak has argued that the ‘emotional elements present in wills … disputes are not presented, or at least not as prevalent, as in other litigated matters’.⁶⁷ While death, sibling strife and attachments to property are key contributors, the deceased’s will is a highly emotive document—adding another layer of complexity.

Finch and others describe the will as a ‘unique form of communication between the dead and the living’.⁶⁸ Imbued with a combination of legal and personal power,⁶⁹ wills do more than establish what the deceased valued in life; the distributional scheme indicates who was valued and the important role that certain individuals played in the deceased’s personal narrative.⁷⁰ The final document ‘gives permanent voice to the testator’s wants’,⁷¹ articulating his/her thoughts and feelings on intensely private matters in what is ultimately a very public statement of intent. As financial legacies shade into affective ones, parental wills elicit a strong emotional response among grown-up children. Where the distributional scheme is more or less what the latter anticipated, the will can be a source of comfort and affirmation. Yet, where it creates an unexpected and seemingly unjust division, the will can elicit a hostile response, generating feelings of shock, outrage and disbelief.

Both the language used in the will, and the way in which the document is framed, are also important. The fact that wills are written in the present tense reinforces the idea that the parent is communicating directly with his/her children.⁷² Yet, the parent’s ‘voice’ may not be one that the children recognise, despite this being one of the most personal (and ultimately final) exchanges between them. Lawyers drafting wills for their clients adopt standard forms of legalise to ensure an operative, transactional document; the result is an emotionally sterile and depersonalised narrative, which speaks in an unfamiliar manner.⁷³ Recent commentaries have suggested that testators (aided and encouraged by lawyers) should include more expressive language in their wills, directly conveying their thoughts and feelings as part of the distributive process.⁷⁴ Glover highlights the therapeutic aspect of this approach, in allowing the testator to articulate both positive and negative emotions in the hope that doing so will ‘ease family conflict during the administration of the estate’.⁷⁵ In the parent–child context, expressive statements may be useful where the testator wants to explain the reasoning behind seemingly inequitable bequests—for example, that benefiting one child more than another reflects the former’s straitened financial circumstances, as opposed to being a reflection of unequal love. Of course, there is always an element of risk. Explanations do not always convey what they are intended to; and just as beauty lies in the eye of the beholder, meaningful interpretation (despite the testator’s best efforts) lies in the mind of the disappointed child. English novelist Daisy Goodwin, whose mother died in 2013 and left a will giving most of her estate to Goodwin’s siblings because they needed it more, still struggles with the feeling that this was because her mother loved her less:

[W]hen a parent makes a will, they should be aware that although their children may be reasonable adults in every other respect, when it comes to inheritance, maturity dissolves into a puddle of childish resentments. Because when a beloved parent dies, what is being parcelled out may look like goods and chattels, but it feels a lot like love. A parent’s will is not just a legal document; it is the last expression of their thoughts and feelings towards their children. It is a testament of love.⁷⁶

V.Bequeathing an Appropriate Emotional Legacy: The Role of the Parent

Safer has noted that ‘[w]henever families gather, siblings notoriously take up their accustomed positions and reproduce their original dynamics, as though the roles were etched on their brains, ready to be magically reconstituted when the cast reassembles’.⁷⁷ That old resentments and rivalries should mysteriously resurface is hardly surprising. However, a key member of the cast is now missing: the dead parent, who mediated sibling disputes in the past, but is no longer there to prevent simmering tensions from spilling over.

While it would be easy to say that the deceased’s absence exposes fault lines within sibling relationships, inheritance disputes are as much about the parent–child relationship as its sibling–sibling correlate. We instinctively assume that parents will divide their wealth equally among their offspring; studies tend to bear this out,⁷⁸ and any differential in treatment tends to be viewed as an overtly negative act of parental favouritism. Yet there are positive reasons why some parents leave uneven bequests—for example, a child who lived with and looked after their parent(s) may be rewarded more than one who was less attentive or assumed less of the caregiving burden (thereby reflecting core notions of inter-family economic exchange, and reparation for sacrifices rendered); the previous section raised the possibility of a parent bequeathing a larger sum to a child with greater financial need than his/her siblings.⁷⁹ As much as this generates resentment and anger among the other children, it is not clear that unequal division is manifestly unfair here or that it should be undone.⁸⁰

Making a will is a poignant act, which forces an individual to confront their own mortality, assess their life’s achievements and contemplate their post-mortem legacy.⁸¹ If contemplating an uneven estate distribution, McMullen argues that parents should think ‘long and hard about the bitterness and fighting’ that might result among their children, especially when the parent is not there to ‘explain or defend’ their actions, or to ‘soothe hurt feelings and feelings of rejection’.⁸² More importantly perhaps, parents should be mindful of the old adage that ‘honesty is the best policy’, and tell their children what they are contemplating well in advance⁸³—instead of leaving their grieving offspring to discover this for themselves when the contents of the will are revealed during what is already an emotionally fraught time (and when explanations written into the will itself might not be enough, no matter how clear or well-meaning).⁸⁴ Adopting this approach would also give the children time to come to terms with the intended estate division, and to understand the parent’s motivations, instead of the disappointed sibling simply seeing this as a final statement that their parent loved them less and the same parent’s memory being tarnished by the contents of the will. Engaging in these conversations presents its own challenges, because of an ingrained reticence to discuss such a sensitive topic. As Isaacs explains:

Discussion of death and aspects of death by children with their parents in our society is still a major taboo. Parents generally keep the provisions of their will secret, and those who stand to inherit generally do not inquire about the will or the specific provisions involved in it. This leaves the parents in a position to decide unilaterally on the division of their estate without the unpleasantness of having to explain to potential recipients why specific decisions were made.⁸⁵

However, the last point highlights what can be a significant emotional barrier to open disclosure: parents may be reluctant to reveal a will’s contents, fearful that their children will be hurt, withdraw care and support, or pressurise the parent into changing their mind.⁸⁶

Of course, there is an uncomfortable reality that we may be reluctant to confront here: by favouring unequal division (and in some cases, disinheriting a child) parents are admitting a preference for a particular son or daughter. Society assumes that parents love all their children equally, and ‘the norm of equal attachment’ is perhaps one of the greatest ‘social perceptions regulating parents’ relations with their children’.⁸⁷ Parents, in turn, may feel constrained by societal constructs of fairness and equality—and how an unequal or seemingly inequitable estate distribution would be perceived, despite how they feel about each of their children. Take Faith, Goff and Tollinson’s analysis of sibling rivalry traits in competition for intergenerational wealth transfers, the authors drawing on earlier studies carried out by Berheim and Severinov:

Berheim and Severinov … assume that children care about how much their parents love them relative to their siblings and use bequests as a signal of parental affection. They show that under certain conditions, altruistic parents, whether they in fact love their children equally or not, choose equal bequests so that their kids will not suffer from any perceived inequalities in parental affection. Thus equal division becomes the social norm.⁸⁸

However, not all parents are thus inclined when it comes to estate distributions, and what precedes them. Overt acts of parental favouritism are perhaps more common than we think: consider the biblical example of the favourite son Joseph in the Book of Genesis,⁸⁹ and a recent anonymous English survey which suggested that parents (while not willing to admit it) do have a favourite child.⁹⁰ In legal jurisdictions where there is no principle of compulsory succession, parents can treat their children unequally when making an estate distribution—reflecting the fact that a particular child is ‘the favourite’, or that the parent does not, for example, have a close and loving relationship with one child or does not approve of that particular child’s lifestyle choices etc. An unequal estate distribution may feel like an obvious choice in these circumstances; the dead parent may also ‘lack inhibitions at death which tempered [their] … conduct during life’,⁹¹ and is ‘exempt from the consequences’⁹² of their actions. Disinheriting a child (or treating them less favourably than their siblings) is the ultimate parental sanction, a final and lasting signal of displeasure, disappointment and rejection.⁹³

Brody has suggested that discrepancies in a parent’s treatment of their children ‘create negativity in the sibling relationship by inducing feelings of rivalry and anger’.⁹⁴