Dysfunctional Families: Sibling Rivalry

Sibling Rivalry in Dysfunctional Families and Estate Litigation

In estate litigation, what euphemistically might be called “sibling rivalry” but in a dysfunctional family, often in reality borders on sibling hatred and jealousies.

In some species, fortunately not humans, the firstborn is known to deliberately kill the second born.

Sibling rivalry can happen in any family, but is particularly common in dysfunctional families when individual children have had negative experiences in childhood. These might be the death of a parent, drug or alcohol addictions, a narcissistic parent, a step parent who is abusive or non-loving, and many other factors that are prevalent in dysfunctional families.

Any lack of a nurturing environment in childhood and the experience of having to go without something so essential to a child as love and bonding, will have a very detrimental effect in adulthood.

If one child or more is favoured over the others, this severely heightens the probability of extreme sibling rivalry that might start in childhood in matters such as fighting over a toy that later may lead to protracted bitter litigation over a parents inheritance.

In my experience most siblings seek a fair and equitable share of their parents inheritance which in most case means exactly equal, and will resent, and even litigate rather than accept that one or more siblings will inherit a greater share of a parents in the absence of reasonable and rational reasons, such as a major disability.

After 45 years of dealing with inheritance litigation among siblings, I note that most sibling disputes can be rather simplistically reduced to the perception that where one sibling inherits more than another, that sibling was loved more by the deceased parent, and that is simply intolerable to the sibling who received less.

In simple terms money and asset division are equated with the level of parental love and approval.

Invariably in any family the children will spend more time with each other and get to know each other better than they will with their parents. Children confide their secrets with each other and grow up knowing how to “push each other’s buttons “far more than most parents are aware.

It is probably only natural that each child seeks as much love and attention as possible from his or her parents, even if it is to the exclusion of siblings.
If a child actually receives more love and attention than other children in the family, it can lead to greater senses of entitlement to share in the parent’s wealth and estate.

I hear the word greed in my office on an almost daily basis when my clients describe the opposing party, who is commonly a sibling. Invariably I also hear that he or she has always been that way, even as a child.

The problem that arises in estate litigation, is that the family greed or sense of entitlement greatly interferes detrimentally with the healthy family unit and instead tends to fracture it .

The breakup of the family unit in recent years has eroded to the point where there are now more blended families than ever, which is a breeding ground for increased sibling estate litigation.

Probably the most difficult sibling rivalry cases are situations where one child has either never left home and became a long time caregiver for a parent, or alternatively, the one child who wants to operate the family farm whereas the others cannot wait to vacate the farm and move to the city.

The remaining siblings while appreciative that their sibling has undertaken the thankless role of either parental caregiving or managing the family farm, and are often dumbfounded when following the death of the parent, it is found that license has been taken with the parent’s resources, or that the caregiver has unilaterally placed a price tag on his or her low by seeking compensation for caring for the parent.

Very often the parent obliges by putting the property into joint tenancy with a right of survivorship with the child who remained at home.

The other siblings invariably take the view that while the caregiver or farm operator has in fact carried out the activity that the parent may have asked for and required, they invariably point out that that child lived room and board free and had and eye on inheriting the entire parents estate.

Estate litigation has been increasing in the last two decades at an almost exponential rate, as the wealth of the older generation increases and the Boomer generation wants to retire with enough wealth to live happily ever after.

Estate disputes arise for a number of reasons, but are very often the result of real or perceived preferential treatment by a parent of one sibling over another.

The so-called greed among siblings is not just all about the money but instead is also a way of validating or not validating parental love and affection.
The division of assets under a parents will often becomes the lightning rod for years of underlying sibling emotions. The parent’s will becomes something much larger than paper dolling out bequests –it is perceived as a monetary quantification of a parent’s love and approval or alternatively distrust and disappointment in a child.

To avoid estate litigation, parents should strive to divide their assets equally between their children, or to at least communicate well in advance to reach child why there may not be an equal division and provide supporting reasons for doing so.

Quiz: Is Your Family Dysfunctional?

Quiz: Is Your Family Dysfunctional?

I have blogged many articles on aspects of dysfunctional families and thought it might be helpful to have a questionnaire to assist in analyzing just how dysfunctional ones family might be.

The list of course is not exhaustive and is simply an indicator as to whether one’s own family is dysfunctional or not.

If you suspect your family is dysfunctional, then you are probably correct. Every family is somewhat dysfunctional, even the most communicative and loving are on some level. Other families are simply toxic from the start and that function may be perpetuated through generations.

 

Dysfunctional families: 17 questions to ask yourself

1. Do members of your family go long periods of time without communicating with each other? Particularly when angry over something supposedly slight.

Obviously communication is better than non communication and counselling can help a great deal to overcome this particular problem;

2. Did you experience favouritism by your parents? Were one or more children treated substantially different as favourites from the others?

This obviously should not happen as in an ideal family children are treated equally in all aspects, particularly when it comes to reward and punishment.

3. Do members of your family abuse alcohol and/or drugs – particularly your parents?

4. Is the household full of sarcasm, insults, yelling matches and other inappropriate forms of communication?

Simple things such as teasing about one’s weight or other sensitive issues can go a long ways to causing problems within the family that can last a very long time;

5. Did your family ever discuss negative emotions or negative mishaps and instead express emotions such as love and caring?

Many dysfunctional families display behaviour known as passive aggressive behaviour.

6. Did your parents ever listen to your problems are your siblings problems? Or were they simply never interested or around for counselling?

7. Were you raised by other siblings or relatives rather than your actual parents?

8. Did you miss out on your childhood by assuming adult responsibilities at a very early age?

The roles that you and your brothers and sisters had as children will often impact relationships with each other and possible mates into the future.

9. Was money a very sensitive topic in the family? Particularly when there is not enough for social activities and the necessities of the children.

10. Were there mental health issues in the family that were typically avoided and not discussed?

11. Was one or more parents overly controlling?

12. Was one or more parents verbally, emotionally, physically or sexually abusive?

13. Did your parents show interest in you by attending school events, or sporting events in support of yourself?

14. Did your family take holidays together and if so, where they pleasurable or disastrous?

15. Were you raised in a so-called blended family where your parents had been involved with multiple partners and have multiple families?

16. Do family members dread seeing each other and rarely see or communicate with each other?

17. Was any form of abuse, particularly physical or sexual ever discussed openly amongst the family or was it hidden and never to be discussed?

Dysfunctional Families: Cultural Differences

Dysfunctional Families: Cultural Differences

I was in mediation last week with a Southeast Asian family where I represented four daughters in an inheritance dispute against their two brothers.

The sole asset in the estate was a proximally 75 acres of farmland, upon which all of the siblings had worked since early childhood doing hard manual labor. In addition to that labour the daughters also did most of the housework and cooking and in later life most of the caregiving further elderly parents.
After both parents died the daughters were left $150,000 each, and the two sons approximately $4.5 million each.

There had always been a great deal of bitterness between the daughters in the sons and the disproportionate inheritance only accelerated and inflamed what had always been a dysfunctional family, largely due to cultural differences in the treatment of the two boys over the four  girls.

It is not uncommon in Southeast Asian cultures for the parents to leave most if not all of their assets to either the oldest son, or alternatively to the sons, and provide very little to the daughters.

Apparently the rationale for this behavior is a “cultural norm” based on the daughters will marry and be taken care of by their husband.

Similarly, in Islamic cultures there is Sharia law, where in inheritance situations women are typically awarded one third in comparison to two thirds awarded to the men.

I have over the years, met with many embittered women who wish to challenge the distribution under their parents will but feel tremendous guilt and social pressure not to do so.

In such  situations the family can only be described as dysfunctional and upon closer examination, the women will invariably tell me many episodes of behavior that by Western standards can only be described as very  dysfunctional and even abusive.

Even when many cultures are functional at home, this can drastically change when a child, typically a daughter, marries someone outside of their culture or religion.

In my previous example involving the South East Asian family, three of the daughters agreed to an arranged marriage, while one of them married a beloved Caucasian.

As a result of she was barred from any family contact for over 20 years.

It is clear that one should never underestimate the depth of the roots of one’s culture and upbringing as a breach of same may very well involve a breakup of the family.

I have even witnessed relatively calm and functional families explode into almost violent litigation over the funeral service of a deceased when there is a division of religious practices within the family.

In British Columbia S.60 of the Wills, Estates and Succession act (WESA) allows a disinherited child, such as a daughter in favour of a son to challenge the distribution of the will, which may very well be varied by the court in favour of the daughter so as to provide a more equal distribution.

The courts in British Columbia have stated that despite cultural norms that may exist in other societies and other countries, the law of British Columbia will be applied rather than the laws or norms of that culture that may exist in their place of origin.

4 Unhealthy Roles Created in Dysfunctional Families

4 Unhealthy Roles Created in Dysfunctional Families

It is well-established that dysfunctional families create some very unhealthy roles for its participants.

It is beyond doubt that early childhood trauma and its wounding effects are carried well into adulthood for the remainder of one’s life.

I venture to say that most “street people” are there as a result of being  the victims of a dysfunctional family that cause them to live a life of drug or alcohol addiction and various forms of antisocial behavior.

The dysfunctional family itself may be affected from a range of afflictions such as mental illness, drug or alcohol dependency, extremely poor parenting skills and many other factors  that give rise to a range of conflict, neglect, manipulation and abuse of all sorts.

Some of the basic roles of personal behavior that arise from the dysfunctional family may be categorized according to the list below (though not exhaustive).

Common roles within dysfunctional families:

1. The Loser

The loser is often identified by one or both parents at an early age, and the label may stick for the remainder of the child’s life. The loser typically has difficulty in school for a variety of reasons, and likely will have difficulty in obtaining and maintaining employment.

Losers  seem to impulsively get into trouble, and may even develop various personality disorders or mental illnesses which may be more extreme than would normally have been expected if he or she had roots in  a “normal” and not dysfunctional family. The loser often chooses a series of inappropriate partners who have their own serious problems and are dysfunctional in their own particular way.

The loser is typically criticized throughout his or her life by their parents and likely also their siblings. The loser may become dependent or try and become dependent for financial assistance and emotional help from his or her parents, and in certain circumstances end up living with their parents throughout their adult life.

 

2. The Good Son and Dutiful Daughter

The “good son and the dutiful daughter” always do the right thing for which they receive laudatory acknowledgment and compliments, but invariably their self-sacrifice comes at  great cost to their own happiness and personal development.

These individuals have always been “perfect” in the sense they did well in school, never got in trouble, always did what they were told, and went  the extra mile to please their parents. They often end up selfless caretakers for their parents at the expense of their own partners and family.

They become the fixers for the family’s problems, and while they appear to be extremely self sufficient, they are often sad and unfulfilled individuals.

 

3. The Escapists

The escapists simply always wants to never be around the family and becomes deeply involved in virtually any activity to an extreme, so as to avoid being around the home and its conflict.

Escapists typically leave home early and may move far away from their family and remain distant. While they can physically remove themselves from the dysfunctional family turmoil, they cannot escape the anger and hurt that dwells within them.

Their denial of their feelings develops early in childhood and may well continue into their own adult lives, so as to deny adult emotional intimacy. They typically fail to connect on a deep personal level with friends and partners.

 

4. The Rebel

We all know a rebel-they are easily identifiable at a very young age. They are the ones who are sent to the office in elementary school and likely suspended from high school. They may be involved with drugs, gang life, early pregnancy, and have an attitude that “rules are to be broken and ignored”.

They are the “bad girls and bad boys” who are acting out and often self-destructive behavior, bullying, or simply a caustic attitude.

Rebels are often scapegoated by the family as their behavior often warrants negative attention in negative affection. While other rebels may look up to them and acknowledge them as peers, they internally often feel empty and unworthy long into adulthood.

23 Signs of Undue Influence in Dysfunctional Families

23 Signs of Undue Influence in Dysfunctional Families

Undue influence is very common in dysfunctional families and many of the indicators to watch out for are summarized in this blog.

I am frequently approached by members of a family who suspect that one or more of their siblings have unduly influenced or will try to do so that a parent will provide a disproportionate share if not all of their assets to that sibling(s).

The problem is further compounded due to the typical lack of communication that exists amongst dysfunctional family members.

Such dysfunctional family members are almost by definition suspicious and estranged from each other, combined with a problematic relationship with one or both parents.

The following are some guidelines for those who are trying to determine if unduly influence has been or is attempted to being exercised upon an elderly parent by one or more siblings. Please note that in law, undue influence must amount to coercion and not simply sustained pressure:

How to identify undue influence:

1. Check to see that the parent has gone to a lawyer of his or her choosing, particularly with a past history of working together, as opposed to being taken to a lawyer who only known to or friendly with the sibling in question;

 

2. Try and determine if your parent has sufficient mental capacity to properly instruct a lawyer of his or her choosing;

 

3. If the family is ethnic determine if the parent has sufficient language skills to instruct the lawyer without the use of an interpreter, and be particularly wary of the questionable sibling acting as interpreter;

 

4. Be aware of red flags, such as a black sheep member of the family suddenly reappearing and becoming the caregiver and decision-maker for the elderly parent;

 

5. If the parent lives in a care home, or independent living, try and make as many caregivers and knowledgeable people aware of any potential problems that you fear may arise by a sibling, whom you suspect may attempt to unduly influence your parent;

 

6. Be familiar with the assets owned by your parent(s) and who manages or oversees those assets, and inform all involved as to concerns of potential undue influence;

 

7. Be aware of any appointment of power of attorney or change in power of attorney to any sibling that is not to be trusted by his or her other siblings- usually such individuals have a history of manipulation;

 

8. Be aware of any threats of violence, or threats of putting an elderly vulnerable parent into a nursing home against his or her will;

 

9. Be aware of any depression, or drug or alcohol abuse that the elderly parent may be experiencing and are having problems dealing with;

 

10. Be aware that if you have concern about financial abuse of an elderly parent, you should report the matter to the Public Guardian and Trustee for the Province of British Columbia, who has a statutory duty to investigate the circumstances;

 

11. Inform the family doctor or other treating physicians of any concerns that you may have as to possible manipulation to the point of undue influence of an elderly parent;

 

12. Compile a list of events, circumstances and a timeline that may indicate circumstances that may collectively amount to undue influence;

 

13. Be aware of any significant decline in physical or mental capacity on the part of the parent;

 

14. Be aware of any drastic changes in the provisions of the will or power of attorney that under the circumstances do not make sense;

 

15. Be aware of the parent being kept in isolation from others, and being unavailable to take telephone calls;

 

16. Be aware of dependency on others, particularly a suspected sibling, when the parent is dependent on the sibling for sight, hearing, mobility, speech, personal needs, or care;

 

17. Look for signs of inappropriate clothing, cleanliness, bruising or untreated injuries;

 

18. Be aware of signs of early dementia, which typically involve some of or all of the following problems -short-term memory loss, disorientation, confusion, and difficulties with finances;

 

19. Be aware of signs of depression, agitation, frustration, mood swings, difficulty making decisions and other such significant changes in the parents emotional makeup;

 

20. Be aware of significant gifting and donations that are totally out of character for the elderly parent- this may involve the suspected sibling or may also involve third-party predators such as telephone solicitations;

 

21. Be aware when a third-party, particularly the suspected financial abuser, speaks for and on behalf of the elderly parent who typically withdraws from such conversations;

 

22. Insist upon financial transparency between siblings and parents with respect to financial decisions and estate planning;

 

23. Trust your gut feeling and be cognizant of the body language of both the parents and the suspected financial abuser, for such signs as anxiety, insecurity, embarrassment, or general unwillingness to talk about financial or care matters

Dysfunctional Families: Depersonalization Disorder

Dysfunctional Families: Depersonalization Disorder

Most of my clients at disinherited.com come from what generally might be described as dysfunctional families that ultimately result in a disinheritance for a number of complex reasons.

Part of my job as an estate litigation lawyer is to try and understand the complexity of the family from which my client has presented him or herself so that I can better both understand the client and the potential approach to resolution of their claim.

I occasionally am told by a client of that his or her parent was unable to express any feelings of love or warmth, especially to his or her children.

The emotional coldness may be caused by any number of factors, but could also be as a result of a depersonalization disorder from which approximately 1 and 100 people suffer.

I am certainly not a psychologist or psychiatrist, so I am not quick to put a label on what caused my client’s parental emotional abuse, and lack of love, but when I hear such a factual scenario, I sometimes think of this disorder, which results in the person suffering from a sense of disconnect from the world around them, their own body, and particularly those to which they should express love and affection.

As previously stated, a person’s inability to show love or affection may be caused by any number of emotional factors that result in a different label, such as a narcissistic personality disorder (which I have written about in separate blogs).

Depersonalization disorder, strictly speaking is where the person has persistent feelings of being disconnected or detached from oneself, and a feeling of loss or control over their thoughts or actions.
Their actions are often described as “out of body”

They may perceive their surroundings as dreamlike, foggy and distorted. An actual diagnosis is very difficult due to the ambiguity of the language used when describing such episodes.

Although the disorder is a distortion of reality, it is not a form of psychosis as the person is able to distinguish between their own experiences and the objective reality of the real world.. In other words, they can distinguish between reality and fantasy.

The diagnosis typically is made when the symptoms cause family distress, or impair social or occupational functioning.

The depersonalization experienced is such that the person feels completely disconnected from their physical body and their loved ones, feeling detached from their own thoughts and emotions and living their lives as distant from others.

The exact cause of the depersonalization is not known, but childhood abuse is suspected, along with severe stress, major depressive disorder and hallucinogenic drugs.

Men and women appear to be diagnosed in equal numbers and onset is typically in the teenage years or early 20s.

The 6 most common signs of a depersonalization disorder are:

  1. A feeling of no connection to the person that is seen in a mirror
  2. a feeling of detachment from one’s environment- the feeling is a disconnection from the world, but also an unfamiliarity with individuals and inanimate objects and all surroundings
  3. a feeling of being “ robot like”
  4. a complete separation feeling from one’s body, as if wound up in cotton and the body is lifeless;
  5. a feeling that one’s memories belong to someone else
  6. knowing that you are not delusional, but that there is something wrong with the way you view the world

Interview: Ask & Answered With R. Trevor Todd

Interview: Ask & Answered With R. Trevor Todd

Trevor Todd was recently interviewed for an article in the Verdict (issue 155). View the original article here.

 

(1) the Verdict: With regard to both law clients and the legal system in general, what does the word justice mean to you?

Trevor: Justice. As an estate litigator I view the concept of justice through the courts of equity that my disinherited clients actually deserve, merit, and are entitled to share in the estate that has been created by typically their parents. Typically my disinherited clients are victims from a dysfunctional family where they were badly treated. I am very grateful that British Columbia has the provisions of the wills variation act ( now section 60 WESA) enshrined so that there is a moral obligation on behalf of parents to provide for their children and a legal obligation to provide for their infant children. The Canadian legal system certainly is not perfect in providing justice, but I venture to say, it is probably one of, if not the very best legal systems in the world.

 

(2) What were among the main reasons you chose to pursue a career in the legal profession?

The main reason I pursued a career in the legal profession is that my father had the aptitude of a lawyer but did not have the opportunity to attend law school. I remember as a child wanting to be a lawyer and recall completing my application to law school with the simple words “I have always wanted to be a lawyer”.

 

(3) When it comes to the legal professional, what is just as important to you now as it was 43 years ago at the start of your career as a lawyer?

I like to think that anyone who pursues a career in law is first and foremost guided by the overall principle of trying to help people with their legal problems. Throughout my career I have always obtained my greatest satisfaction in bringing a case to a satisfactory conclusion, and hopefully having attained the desired goal of my client.

 

(4) Being asked to represent an individual on a personal legal matter is an honour and a tremendous responsibility. What advice would you impart to new lawyers with respect to how they should approach meeting a potential client for the first time?

My advice to new lawyers with respect to how they should approach meeting a client for the first time is to listen carefully and ask probing questions to ensure that the client has merit to their claim before accepting their retainer. I urge lawyers to learn to say “no” much more than they typically do when it comes to accepting the retainer of every possible client. For example, if the client has previously retained more than two lawyers ( without valid reason such as retirement) , then I urge caution in accepting that potential client as the red light might be that the client is unreasonable. This is particularly the case when accepting contingency fee arrangements as in my view, it is the lawyer that bears most of the risk and not the client.

 

(5) Your practice has changed over the years, perhaps most notably by the fact that these days your work is exclusively focussed on estate litigation. In which way does your approach to work today differ significantly from your approach during your first 10 or so years in the practice of law?

When I started practicing law in 1974 I had an extremely general practice where in the same day I might do and impaired driving, a commercial lease and an uncontested divorce. In retrospect, I believe that most lawyers then did not do a particularly good job if they maintained such a practice, which I believe most did. Approximately 25 years ago I took a number of courses on focusing your practice and realized that specialization is not only what the public wants, but leads to a far more financially successful less stressful practice, as well as greater peer recognition. Coincidentally, at about the same time I had a significant estate litigation trial, which made the front page of the province and Vancouver Sun. It was an epiphany for me in terms of what I wished to do exclusively in my practice.

 

(6) What are among the most difficult aspects of your workweek, be it logistics or otherwise (e.g. time management, commuting, scheduling)?

I no longer have any difficult aspects in my work week as many years ago I developed the concept that I would strictly control my practice as opposed to allowing the practice to control me. I have stringently restricted the number of cases that I take each year to a very manageable number and only take cases that I think are of merit, interest and financial reward. I have noted that most lawyers are victims of overwork with too much stress and non-appreciative clients- I consider that their practices are largely examples of “the tail wagging the dog”.

 

(7) What are among the most challenging aspects of the cases you take on regularly?

The most challenging aspects of the cases that I regularly take are that they are often referred to me by other lawyers as being difficult and requiring expertise. I have particularly enjoyed the cases where it has been necessary to try “pushing the plaintiff’s envelope” by trying typically equitable remedies to overcome difficult fact situations.

 

(8) “Money Matters” is the theme of this edition of the Verdict. Money can be – and nearly always is – a challenging topic for anyone, regardless if we’re talking personal or professional. You are deep into a career that uniquely fuses personal and professional needs and obligations – with money, assets and family at the heart of it all. The Wills, Estates and Succession Act (WESA) is now eight years old (Royal Assent on October 29, 2009), has it been a great eight for the people of BC?Oversimplification aside, are money matters better (closer to just) for citizens who require legal assistance after the death of a loved one?

WESA came into effect on March 31, 2014 and comprised a great number of changes from previous estate statutes. Initially the provisions of the wills variation act that allowed an adult independent child to contest a will were not to be included in the new legislation. I (amongst others) strongly lobbied against this and spoke to a number of bar associations and wrote a number of articles to the effect that this provision should be kept in the new legislation. Atty. Gen. Oppal in his wisdom, fought the cabinet against this change, and prevailed. His rationalization amongst others was that many Southeast Asian women would be disinherited and would have no legal remedy. This is a very significant factor in that British Columbia is the only province in Canada, and one of the few places in the world other than New Zealand that allows an adult independent child to contest a will on the basis that they were not adequately provided for by their parents. The other significant change of WESA is the extreme relaxation of the rules relating to the proper execution of a will. One of the first cases in this regard was a court allowing a suicide note (unwitnessed of course) to be declared a valid will under the curative provisions of the act.

 

(9) Many of today’s legal professionals contend that law school did not prepare them for some of the biggest or most important aspects of managing a law practice. What is one practical everyday thing you learned from scratch, after earning your law degree?

The biggest complaint I have with respect to law school is that while they teach the student to analyze case law quite well, there was, and I believe still is, no training whatsoever with respect to the management of a law firm. Most law professors have never practiced law. Probably the biggest change that I have noted in the profession is that for approximately the first 20 years of my practice law was considered a “noble profession “whereas the reality is that it is increasingly “big business” on an worldwide basis. What I quickly learned after entering practice is that each lawyer is expected to have business skills, including marketing, and to be productive in the monetary sense. Many of the brightest students weren’t necessarily good at these skills. I have learned that personality and practical common sense are usually more valuable in the practice of law than high intellect.

 

(10) If you chose another career path, what would it likely have been, and which careers are among the ones you would consider nicely suitable to your skills and aspirations?

With respect to alternate career paths other than law, most of my classmates had a political science undergraduate degree. I recall writing an aptitude test just prior to entering law school and my main aptitude was that of the social sciences professor. In latter years, I have realized that I would probably have pursued a Masters in business administration If I had been unable to be accepted in law school. One of the things I have liked about law as a career, that equally applies to an MBA degree is the number of diverse avenues that can be followed if one is so inclined.

 

(11) What do you consider to be among the greatest traditions of life as a lawyer?

I consider one of the greatest traditions of life as a lawyer is the camaraderie of the profession throughout the world. I travel a great deal and have noted that no matter where I am, there is much in common with practitioners in the foreign country.

 

(12) You’ve been a member of TLABC from the early days of this association. You served a year as TLABC’s president and you were a dedicated member of the board of governors for well more than a decade. Aided by your experience to date and the benefit of hindsight, what do you regard as a significant way in which things have changed for lawyers who chose to join this professional association? Put another way, generally speaking, are professional associations and memberships more relevant than ever or are most of today’s professionals inclined to keep to themselves with regard to their practice issues?

I can still recall attending a TLABC seminar in 1982, and thinking that was by far the best, most practical seminar I had ever attended. The American attorneys who spoke were high-powered and inspirational. The course was so different and more practical than the CLE courses that I had taken. I immediately joined the fledgling association and got on the executive. Our first meeting was in Ian Sisset’s kitchen as TLABC did not have an office until my presidency in 1987. I have been writing an estate column for the Verdict now for approximately 22 years. I have urged a great number of young lawyers to get involved with TLABC and consider it to be one of the very best professional legal associations. With the decline in mentoring over the years I think it is more important than ever for lawyers, and in particular young lawyers to join such professional associations.

 

(13) Whether far back in world history or in modern times, who are some of the lawyers and laypeople that come to mind when you think of people you admire, and what do you find most admirable about them?

Lawyers and laymen I admire in world history are Margaret Thatcher and Mikhail Gorbachev for their strong individual beliefs that were contrary to the prevailing thought of their time and circumstances and who largely helped to end the Cold war that persisted throughout most of my life.

 

(14) If you could have been counsel on any case in world history – in any field of law – which case would it have been, and what is it that draws you to it? Additionally, which lawyer or lawyers in history do you think you would have enjoyed most working against or alongside?

If I had been counsel on any case in world history, I would choose being a prosecutor at the Nuremberg war crimes trials. I greatly admire the prosecutors who have participated in trials against genocide. Such work appeals to both my keen interest in world history as well as huma rights justice.

 

(15) Featuring law as a central theme or as a compelling backdrop to a story, which books or films are at the top of your list of favourites?

I have never been attracted to television portrayals of the practice of law as Perry Mason and LA Law gave very false impressions to the general public as to what the profession is truly like. On the other hand I admit to being a John Grisham addict and have read every one of his books, including his few non lawyer ones.

 

(16) Which mantra, quotation or expression do you find particularly inspirational, one that is powerful enough to guide you through the toughest of days?

The quotation that helped me the most in the development of my estate litigation practice was back when I had one case and was wondering when the next one might come in the door. It was the very early 1990s, and when I bemoaned the fact of that I had grave concerns about making a success of it, a friend stated” Rome wasn’t built in a day”. That quote somehow caused me to realize that perseverance in the pursuit of something that you really want will invariably prevail.

 

(17) Trevor Todd – if all of your arguments were made and your law books were closed forever, where would you be living and what would your life be like? Alternatively, describe an ideal non-work day in which you are living life exclusively on your terms.

At this time I cannot come to grips with what it would be like to not practice law anymore. Many of my contemporaries have retired or are thinking about it. My attitude remains that I will do it until “I drop,” If I did have to describe a non-workday in which I was living exclusively on my terms, it would probably involve adhering to the principles set out in the book “ The Four Hour workweek” and realizing that I could be living in a foreign country in the lap of luxury, working only as and when I wanted, and enjoying life on my own terms.

 

(18) At this stage of your career – with the sum and strength of 43 years of experience as a lawyer – what can you, legal professional, say for certain about law?

After 43 years of practice, I can state that there will always be a need for lawyers in our society, but as a profession, It is threatened not only by an overabundance of lawyers, but technology such as artificial intelligence. The lawyer of the future will need to be highly specialized and able to adapt to radically changing social situations.

 

(19) Today, with the benefit of your life experiences to date, what can you – Trevor Todd – say for certain about life?

With respect to life experiences, I think the quote from Forest Gump that “life is like a box of chocolates- you never know what you’re going to get” is most apt. As far as certainty goes it is limited to death and taxes.

Dysfunctional Families: How to Survive Them

Dysfunctional Families: How to Survive Them

I commonly used to joke with the audience of speaking engagements by asking the question- ” Are there more functional families are dysfunctional families”? I do not know the answer, but invariably it raised a nervous bout of laughter.

There is  a huge range of the term “dysfunctional” that stretches  from mild to totally nuts.

One thing I have noted in my practice is that many people do not actually realize they were raised in a dysfunctional family until many years later when life experiences shown to them by others, point out the dramatic different reality in which their earlier life underwent.

I think the key to surviving a dysfunctional family is to recognize as early as possible that your family is dysfunctional/toxic and to take early steps such as counseling to create what in effect  an ” intervention “to get yourself  out of the family.

It must be realize that the family is not going to change, and that you are the only one who can do anything about it in order to save yourself.

I did an earlier blog entitled “How to Recognize a Dysfunctional Family”, which should probably be read in conjunction with this blog in terms of coming to grips with understanding the concept itself. 

In addition to the eight criteria that I set out in the other blog about common traits of dysfunctional families, I offer the following observations:

Observations of People From Dysfunctional Families and What to Do to Survive

  1. Many people raised in a dysfunctional family live in fear of being abandoned as that was their experience as a child. By abandonment  I mean emotional abandonment, which often leads to poor choices in later life when it comes to choosing a partner. The harsh statements, belittling and strong criticism by family members  are  prevalent traits that have lasting effect. Finding a strong, supportive partner in recognition of your fear of abandonment is a sound survival technique;
  1. People pleasing and being overly nice in situations is a survival trait that can accompany the feeling of emotional abandonment. By people pleasing you are not being true to yourself and recognizing this trait is a step forward in learning how to survive the crap imposed upon you by years of being in a dysfunctional family;
  1. You have a fear of loneliness and isolation that is probably once again associated with the fear of emotional abandonment. Recognizing this, and seeking counseling or group therapy is a good tactic as  is simply recognizing that there are many more like yourself out there. This realization  alone builds inner confidence and strength through numbers;
  1. The feeling of having been a  victim is very prevalent as for much of your life you have been one. The key to overcoming any feelings of victimization is to have the strength to ask for help and join groups and websites that provide strength to overcoming the common feelings that victims experience;
  1. Incessant worry about the future again comes with the territory. A recognition that you cannot control the future is itself a big step in the realization that you can only control your own life and emotional status as much as you can without the worry about what others will think, especially non sportive family members;
  1. Extreme self judgment is common as you have experienced bitter statements from your family growing up, such as ” you are the most selfish child I know” or worse. These statements are simply not true and must in effect be unlearned. This is easier said than done, but is entirely possible.

I conclude by stating that in my view the best survival tactics for those who have grown up in a dysfunctional family is to extricate yourself from the family as soon as and as much as possible in order to save yourself and realize that you cannot change the family, but can change your own life and destiny.

Invariably counseling and group support will be necessary in order to achieve this, and given the innumerable number of people that come from dysfunctional families, I think it is entirely possible to survive your having grown up in a dysfunctional family.

Dysfunctional Families: Your Family May Actually Hate You

Dysfunctional Families: Your Family May Actually Hate You

Does your family actually hate you, or just act like it?

I spend a good deal of time in my estate litigation practice explaining to clients the various aspects to dysfunctional families, which they invariably come from.

I keep a number of my previous articles on aspects of the topic on hand for them to read. A few of the more popular ones are on scapegoating, narcissistic personality disorders, sibling rivalry and the criteria of a typical dysfunctional family.

I seldom delve into the fact that their family might actually hate them as this seems a bit too cruel, but may very well be  true.

 

Love or Hate?

It would appear that many families do in fact have a love/hate relationship with various members, which on the face of it is extremely difficult to understand. From what I hear in my office,  the client complains that from an early age no matter what they did, they simply never met with approval or acceptance.

In reality the collective family often judge the selected person by totally different standards than they judge themselves or others.

I urge  people experiencing extreme family conflict to learn as much about the topic as possible. There is a great deal of literature on dysfunctional families and the harm they cause, as well as support groups. I think it is very important to understand certain psychological aspects such as the concepts of projection, scapegoating, jealousy, narcissistic personalities, and so forth.

Others have written that families often send mixed messages. On the one hand, they will tell you that they only want what is best for you while their actions totally conflict with this message and appear to be more in tune with what is best for themselves. These messages obviously cancel each other out and cause confusion and conflict.

It is important to remember that what might be best for you is  not what might be best for the family.

 I often give to clients My blog article on  Dysfunctional Families and Scapegoating who frequently remark-  how did you know how to write about myself?.

This points out to me that such people often feel alone, while the fact is they are numerous.

Scapegoating is particularly difficult to accept, understand and deal with. The scapegoated party, in fact might be the most intuitive and artistic member of the family and for reasons that are difficult to understand,  is singled out and picked on from an early age for the remainder of their lives.

I have often told clients that it is extremely easy to become a parent, but extremely difficult to become a good parent.

The American Thanksgiving holiday is the biggest family event in America. I can well imagine how many millions of traveling family members are dreading the thought of having to socialize, even for a short period of time with their family. Families can be extremely taxing to deal with, even when they are wholesome, loving and functional.

Families in fact can resemble tribes in the sense that if one member is made to feel less than the other, such as your own good fortune, this can generate jealousy within the other family members who at least subconsciously if not consciously do not want you to succeed more than themselves.

There is little one can do to change the collective mentality of the family. Victims of the wrath of dysfunctional families must learn to set up boundaries and learn to live independently of the opinions of others, and in particular the opinions of their family members.

It is normal for victims of family dysfunction to blame themselves much akin to how a victim of a sexual predator does.

The bottom line is that it simply is not your fault. I put it in the same category as shit happens.

Family dysfunction is considered to be a normal prevalent problem in todays society, with many millions of people suffering as a result.

As I mentioned in my article on scapegoating, it is important to seek counselling and other forms of self-help to understand the situation. The counselling advice might even involve minimizing any further contact with family members.

Dysfunctional Families: The Predator Spouse

Dysfunctional Families - Disinherited

A disturbing and increasing trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually financial affairs and marries the victim in short order.

Even if the family had been reasonably functional prior to this event, the interference of the predator spouse upon an elderly loved one can wreak severe consequences for both the victim and his or her family.

Every estate litigator has likely had experience with the predator spouse.

Typically they are much younger women, often a caregiver, who single out an elderly and vulnerable man who is typically recently widowed , and does so for the purpose of personal profit and exploitation.

Family members are usually cut off, excluded from the life of their loved one and not informed of the marriage ceremony.

The goal of the predator spouse is to enter into a legal form of marriage, while making the victim increasingly excluded from family members and totally dependent upon the predator. The overwhelming control exerted by the predator spouse is often backed up with the terrifying threat of putting the elderly spouse in a care facility .

In my experience the elderly widower is often cognitively impaired, significantly depressed and unable to care for himself. The predator spouse is often skilled at befriending such victims and often has a history of prior marriages for the same exploitive purpose.

The children are often beside themselves as they see both their family connection totally disrupted, as well as their possible inheritance going to an intervening stranger.

The relationship usually begins as either a hired caregiver or as someone who quickly befriends the elderly person and gains his trust through companionship and assistance. Many such men find the younger female predator to be sexually irresistible and cannot avoid the “temptation”.

The marriage ceremony often occurs in secret within several weeks of the start of the insidious relationship.

One of the major difficulties with such marriage ceremonies is that they are often very difficult in law to set aside, primarily on the basis of lack of mental capacity.

The courts generally speaking have had difficulty in defining exactly the test for capacity to marry, but seem to have adopted a standard that it is to be treated as quite low on the basis that marriage is a “simple contract.“ The judicial reasoning in my opinion could not be more incorrect given the complexity of current matrimonial laws, particularly as they relate to the division of property and assets, and the consequent  difficulty of divorce in present day.

Such judicial reasoning continues however that marriage is a “simple contract” requiring very little cognitive reasoning to understand the consequences of same.

Cases of the Predator Spouse

There has been at least one judicial decision where the court recognized the effect that a marriage has on one’s property and children and a higher standard of capacity to marry was applied.

That decision was in Alberta case of Barrett Estate v. Dexter 2000 ABQB 530. In that decision, the deceased had been tested for mental capacity prior to his death, and was found to have significantly impaired cognitive function and judgment. A geriatric physician opined that a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they might be affected.

Probably my most egregious case was a widower who began to frequent the services of a prostitute who “specialized in seniors”. Within a short while the prostitute moved in with the elderly man, changed the locks and telephone number and cut him off from his three children. They married shortly thereafter, she arranged for him to change his will to provide for her exclusively, and  within three months of their marriage, she physically beat him to death, and was convicted of his murder.

Another successful challenge to a predator marriage was in Juzumas v Baron 2012 ONSC 7220 where the marriage was set aside on the basis that the contract of marriage was unconscionable due to the inequality of bargaining power, and undue influence.

The court stated as follows:

8     In his text, The Law of Contracts, John McCamus addresses the “cluster of doctrines” that apply “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.” John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 378. The cluster of doctrines includes undue influence and unconscionability. If any one of these doctrines applies, the weaker party has the option of rescinding the agreement.

9      McCamus describes the equitable doctrine of undue influence as providing a “basis for setting aside a gift or a transaction where the transfer of value has been induced by an ‘unconscientious use by one person of power possessed by him [or her] over another.'” McCamus, at p. 402; see also Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710 (B.C. C.A.), at p. 713; and Knupp v. Bell (1968), 67 D.L.R. (2d) 256 (Sask. C.A.), at p. 259. He addresses the distinction between the two categories of undue influence: actual and presumptive undue influence. As an example of actual undue influence, McCamus refers to Craig v. Middleton, [1970] 2 All E.R. 390 (Eng. Ch. Div.), in which a caregiver threatened an elderly dependent with abandonment: McCamus, at p. 403-404. The onus is on a plaintiff to establish actual undue influence.

10      A presumption of undue influence arises from the nature of a recognized relationship (e.g., solicitor and client, doctor and patient etc.). The presumption can also arise from the particular circumstances of the case, where one party has the ability or potential to “dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.” Goodman Estate v. Geffen, [1991] 2 S.C.R. 353 (S.C.C.), at p. 377.

11      Such a presumption is rebuttable by evidence that the transaction was an exercise of independent free will: Geffen, at p. 379; and Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (Ont. C.A.), at para. 24-25. Evidence of free will may be demonstrated by evidence of independent legal advice, or at least an opportunity for the individual