Willing a Family to Keep the Peace

The Will of an Elderly Woman and the Story told by her Daughter

On a recent transatlantic flight, I had the most profound experience; my seat-mate, a retired psychologist, told a lovely story of her mother who loved her children enough to hand write a beautiful "will" for them asking only that the estate get divided into 6 pieces, one for each child and that they "love and support one other". It was a lesson that apparently this woman had taught her children throughout their lives.

Whether or not the "will" of my seat-mate's mother could have been contested is irrelevant here, as the children did as the mother asked, and they continue to do so. Had things become contentious, no amount of desire on the part of this woman could have willed peace. It was the power of her love, the power of her words, that willed her children to do as she asked. As this seat-mate described she and some of her other siblings have even decided to help one of their nephews, a young man who struggles, buy a home. They continue to love and support one another as their mother requested.

This woman's story, so beautifully told for some time on that flight, is antithetical to my own. An elderly woman's last wish, which was to keep her family together, is so contrary to my story, but it did not have to be. In only a few words, written on a piece of paper by hand, and signed, the elderly mother successfully accomplished her task. While my father could never have so artfully maneuvered his children to behave as my seat-mate's siblings have behaved, he could certainly have prevented a toxic force, the Executor, from creating discord where it might never have been. He could undoubtedly have made his position clear enough to keep the peace.

My seat-mate's story has had a remarkable impact on me because I believe that this woman's mother's words carried such great weight because of the strength of the bond amongst her children, something to which I hope she looks down upon with great pride. The reality is that her words would have held little weight had my sister been one of the siblings involved; and had there been an Executor like the one in my case, a toxic rabid man looking to make money and caring little for the mess he leaves in his wake. 

My father's own wishes, had they been made known on paper, through a simple caveat written to his will, might have alleviated some of the stress. He might have actually willed the result he wanted.

The reality is that my father's wishes were known to both my sister and to me. He had expressed himself numerous times. He had stated that he wanted to remove the executor many times. He had stated that he did not want us fighting over his and my mother's things.  He had unequivocally expressed that he wanted peace.

The will, as written, states that we take what we want from the home and in the event of a disagreement that the assets get sold. My father did not want monetary value placed on his things. He wanted his children to get the benefit of what he had but not at any cost, and certainly not at the toll it has taken. My father's entire purpose for bringing in an executor was to keep the peace. It is unfortunate, however, that the Executor in our case is a self-serving venomous individual who sees this as his last vestige of income, and one so easily generated. It is a shame, but perhaps in some sense a gift for me, that the Executor considers not that my sister will die alone and without family, save for himself.

Perhaps the greatest sense of peace and understanding regarding my discussion with my seat-mate has come of the last few days. I am left with the feeling that perhaps my father did, indeed, bequeath me a gift, my freedom. He showed me in true form, who my sister was and is.  He has shown me that my views on my cousin solidified three years ago, were correct in all measure. I feel vindicated.  After enduring the lies and betrayal of the last few months, both at the hands of my sister and at the hands of the Executor, I have come to the conclusion that my father willed me truth, an honest and unadulterated view of two people who are in all respects made for each other. I am now free to believe that we do not choose family, they are chosen for us. While we might want, deep down, to protect that relationship at all costs, sometimes we cannot do so for even the attempt is at our own peril. My father has, in his silence, willed me my freedom, something he asked me to find for myself long ago.
 
My seat-mate on that fateful journey left me with one final thought: "Teach your children to love and support one another." I hope that I am going to prove successful in teaching that lesson. In the meantime, though, I will reemphasize the importance of drafting a will, for the sheer survival and well-being of those who are left behind. For my seat-mate, her mother's words were adequate and sufficed to leave her family in tact. For me, my father's words were lacking in clarity that could only have come from him in writing. He has set me free, though, just not necessarily in ways he envisioned or willed.

The Executor - "in terrorem" - About Fear

New Jersey and Will Contests

My parents' Wills contained a provision called an "interrorem clause". Basically that clause is intended to create fear in any beneficiary who decides to contest the will by punishing such contest with some form of disinheritance. In the case of my parents Wills it states generally that if any beneficiary contests any portion of the Will that person will be treated is if he or she predeceased the testator. By way of explanation, in the case of my parents' Wills, were I to be treated as having died before my parents, my issue or my children would take equal portions of my share. If, on the other hand, my sister were to be deemed to have predeceased the Testators, than because she does not have any issue her portion would, in theory, get divided up amongst the remaining heirs. 

In New Jersey, while "interrorem clauses" can still be found in Wills from that state, they are rarely held valid in court. Moreover, specifically in the case of my parents' Wills, the interesting question was whether or not contesting the appointment of the Executor even represented a contest of the dispositive provisions of the Wills. My attorney and I concluded that not only are in terrorem clauses generally not held valid in New Jersey but also, the provision of my parents' Wills did not apply to the question of the appointment of the Executor.

On the day my father died, a Friday, my sister, the caregiver and I left the hospital, to make all of the funeral arrangements. The caregiver, who had dutifully cared for my mother for nearly 9 years and my father following her death, was as much a part of the arrangements as anyone. She had been a close and active member of the family for so long and knew more about what my father wanted than we did. As soon as the arrangements were made, I called some relatives with the information. While standing outside of the funeral home, only hours after my father's death, I called my cousin to let him know that Dad had died and to provide him with the arrangements. It's what my father would have wanted and what he expected. My cousin proceeded to yell at me and then to hang up on me. It was, at that time, abundantly clear that if he became the Executor he would make my life miserable.

At the time of my father's death, I was not completely certain that Dad had not actually signed a new Will or a codicil. Perhaps I was just resting on a final hope that, when my cousin did not contact my father to tell him my cousin's mother, my mother's sister had died, and when my cousin did not attend my mother's funeral, my father would have raised the priority level on signing the codicil. Apparently he had not.

At the time of his death he "detested" my cousin, a word he used often. He felt let down. He felt he no longer knew him. My father questioned the humanity of a person who misses a funeral on reasons of "principal" and did not even know if that was the reason why my cousin had chosen to miss my mother's funeral. My father had lost a lot of sleep over his disappointment and feelings of hurt. I had my suspicions, however, that Dad had not made any changes to his Will. Upon a discussion with the drafting attorney, the person who both held and who drafted the original Wills for both my father and mother, it was confirmed that my father had not finalized the process. He had a codicil drafted but never signed.

At the time, my sister and I were still on speaking terms. Knowing that after the 2010 e-mail incidents the Executor would most likely be extremely hostile to me we both decided that we would unite, hire an attorney and seek to have ourselves jointly appointed or in the absence of that, have a neutral party appointed.

After a few weeks strategizing and some legal analysis, our attorney contacted my cousin to advise of his naming in the Wills and to request him to step down. During that conversation, the cousin suggested that he would step down but only if my sister told him that's what she wanted. It was at that very moment that the conversation was conveyed to me, that I knew I was in for a very expensive, very time consuming legal battle. I knew that my cousin would either terrorize my sister or promise her something in exchange for her releasing her alliance with me.

It was when the question of in terrorem (which had been discussed with our attorney very early on) became her central focus that I realized he was leaning toward terrorizing her. He was telling her she would lose everything if she contested his appointment. He was convincing her that I had nothing to lose because of my children and she had everything to lose. Had she been speaking to a reasonably knowledgeable attorney, he could have set her at ease. Had she not been distracted by her desperation and her belief that this represents her last hope of a life (of never needing to work) she might have seen that she was being played. Had she remembered the years I had taken care of her, that she had lived with me, that I had paid for everything, perhaps she would have realized that the matter at hand was really small potatoes in comparison. To this day, I don't know whether her fear guided her in those early days or whether greed was her albatross. The battle continues and it is a battle that consists of paying attorneys potentially more than the estate is worth after taxes are paid and after the Executor takes his fees from both my mother's and my father's wills, a financial windfall his own legal business would never have provided him.  I surmise that he will be obtaining greater fees from my parents' Estates than he has in all of his years as an attorney. I suppose creating fear and being a parasite has its advantages.

Had my father signed the papers, all of this would have been avoided. Had he spent some money to take care of his affairs, so much would be saved now. So much is getting paid to lawyers and to the Executor. At this point, though.... well, that's for a different day.

Test of Wills.2 Executor as Executioner, Grave Digger and Stone Thrower

A Test of Wills: Executor as Executioner, Grave Digger and Stone Thrower

This account is intended to be a word to the wise that an estate battle becomes mired by all of the history that represents the function and dysfunction of a family. Because estate battles can be turned into drudging buried muck, dragging skeletons from closets, digging through dirt and throwing stones, part of the writing of this series of Test of Wills blogs is an intensely personal account of the loss of my parents, the loss of one sister by suicide and the loss of the other by her own greed and desperation. It is accurate from my perspective but may actually be, as Shakespeare once put it, "a tale told by an idiot full of sound and fury, signifying nothing." If that is the case, may one person turn around and draft a will, review a will, put his or her affairs in order as a result of reading this insanity and I will have accomplished something. A simple review of an old Will or the drafting of a new Will can change the course of history for family members after a person's death. Do your loved ones a favor, do not allow the story of your legacy to become mine. If my father had simply drafted a codicil changing the Executor, which he had intended to do, all might be different. 

The purpose of an Executor in most states is to (a) determine and take control of the assets of the estate belonging to the deceased at the time of death, to (b) pay or otherwise make provision for payment of any debts and taxes owed by the deceased at the time of death and by the estate post death, and to (c) distribute the remaining property to the beneficiaries designated by the deceased under the will, or by law if a will does not exist. In a situation where no Will exists at all, the Executor is referred to as the Administrator and all assets are distributed in accordance with the laws of Intestate Succession.

In all states, an Executor is appointed by Will. In states including New Jersey, an Executor can rarely be removed or replaced before he or she is appointed. In some states, including New Jersey, an Executor cannot be removed unless he commits some egregious acts which materially alter the fair administration of the Estate. In New Jersey, which is a "probate friendly" state, tending to favor the "probate" rather than the beneficiaries, which can (as in my scenario) be at odds, the Executor yields tremendous power. Therefore, not only does the Executor in the case of my parents' estates hold a strong weapon, but the State of New Jersey adds to his ability to shield himself.

The job of the Executor should be very straightforward. However, in my case, the Executor sees himself as the omniscient and omnipotent benefactor to a wronged sister. Things are all but uncomplicated. He is anything but non-biased, which is supposed to be the position of the Executor; he cannot see the forest for the trees because his judgment is so clouded by disdain and hostility; and he cannot understand that the time he is wasting on digging and dredging is diminishing the value of the house, currently in a state of disrepair.

My parents' wills were drafted in 1998. While my father had intended to change his will beginning in 2010, he had not done so because he simply did not want to spend significant amounts of money to make any changes. I believe that he felt that he could send an email to the Executor telling him of his intentions and all would be okay. However in this case, a penny saved is a Pound spent. Dad did not really consider that the money he saved would be spent 100-fold in trying to undo the harm that would befall his children at the hands of the Executor.

The Executor, once appointed decided to review records since 1998 in an effort to dig dirt, uncover bones, find skeletons. He believed and continues to believe that I owe money to the estate and has decided it prudent to use estate assets to rummage around in a past long since buried.This is all part of his decision to "right the wrongs" visited upon my sister by a life of being Cinderella. Setting aside that 1998 is well beyond the statute of limitations for many claims, so much happened in 14 years. Do we really want to consider all of the events of those years? Does he really think that my father did not have enough time to collect on any outstanding debts that may have existed in that time? My father was anything but frail, even at the time of his death. He was strong-willed and tenacious and would have undoubtedly taken my left hand if he felt I owed him something. But, the Executor is armed, well armed.

IN 1998, my eldest sister lived in Seattle and then in New York, bought a house, got divorced, had a second child, had battles with fathers over custody issues, needed money on and off and then tragically killed herself. My middle sister lived in various locations with her husband, without her husband, moved around, never held down a job and received money from my father by way of bills being paid because he was not comfortable handing her cash. I lived in Israel and moved back and forth. I had a third child. I built a business. I needed money on and off for things - all in the course of a family and all within what is personal to a family. My father was intensely personal and each decision that he made in regard to money came from a place within him that found lending or giving money so very difficult, it was not usually shared, except in passing.

My father was not naturally generous in life when it came to money. Rather, more accurately, he was generous at his own time, on his own terms and using his own methods.  He was thrifty with his own money, and while generally financially present in times of need, each dollar he gave or lent had a thousand strings attached. While some couples have mak-up sex, my father was into makeup money. I don't really know what happened behind closed doors between my parents; but with his children, if he had an argument and he realized that he was wrong (which was not very often an admission) he did not eat crow. Instead he would shower us with gifts. I know this would be true of my eldest sister during her life and it is certainly true of my own experiences. Seeing as he gave my sister a car the year before he died, it would seem to have been true of her, as well. In my case, my father would bring kitchen gadgets (which he knew I loved) or he would bring the kids gifts when he had done something he knew to be hurtful toward them. He never apologized, just came bearing gifts.

My father believed strongly in what he referred to as fuck you money and I don't think that there was ever a point in his life in which there was enough of that. He felt that in order to be able to get along in the sandbox with others, you needed to be financially sound. You needed to have enough money to be able to say "fuck you," if and when the time presented itself. To protect his own source of such funds, generosity for my father needed to be based in a reality he understood (only he understood) and based upon a belief that there would be some form of reciprocity.  

He lent money when he needed something and knew that once the money was loaned there would be no saying, "No." to him. If he needed something and you were indebted to him, you had to be prepared to help him. He did not lend freely but wanted some level of control in regard to where the money was going or what is was being used for. He demanded timely payments, with interest and would be quite vindictive if his way was not followed. I would guess that borrowing money from a street gang is a far less brutal experience. All three sisters had occasion to borrow money from him and all three sisters had our own individual arrangements with him in that regard. Every once in a while we would get lucky and he would decide that he did not need the money back. Usually, this was one of his weapons against saying he was sorry for something he had done. Alternatively, he would decide that it was used for the correct purpose and he deemed that a contribution to the success of his children. These moments were few and far between earlier in his life, more frequent as he got older.

My mother, on the other hand was warm, generous of time, money and spirit and forever "schtooping" money to her children when Dad was not looking. Mom gave gifts to her children and grandchildren generously and endlessly. In fact, with each of Mom's sisters she had arrangements in regard to the giving of gifts whereby each would buy gifts for their grandchildren and would get reimbursed by the other. Mom never wanted the kids to know from a lack of generosity. She wanted her children and grandchildren to know their extended family and wanted everyone to feel that gifts were given generously. She believed in holidays and special occasions. For Mom there were few times when she could not think of an excuse to give. This usually drove my father crazy.

When we went out to dinner, if my mother was present, the bill got paid by Mom and Dad. If she were absent or after she got sick, the bill either got split in half or paid for by either my family or my eldest sister's family when she was alive. My middle sister had not had a two nickels to rub together for nearly the last 20 years so quite often she was not invited to go out because paying her way became the source of great hostility for my father, who refused. So, if she were invited to something, it was my family or my eldest sister's family who paid her way.

Looking back, my father is not to be faulted for his attitude towards money. His feelings came from an upbringing tainted by an internal struggle, a war between the Socialistic views of his parents and the capitalistic views of his life as a securities trader. On the one hand, he was taught to give, on the other, he was taught to take. He was at constant war with himself.

Where I think he went wrong: My father never believed that he could count on his children to take care of him or my mother in their retirement years. He therefore never participated in any real estate plan. The idea of gifting money for the purpose of tax planning was a foreign concept for him, fueled by his fear of growing old without his fuck you money. Where my father truly failed, where he let us down, was in overestimating his mortality and not changing his will so it reflected his final wishes. 

Regardless or rather setting that aside, my father would have wanted it all to be uncomplicated and as evidenced by his disdain for lawyers' fees, he certainly would not have wanted history to be taking the course it is taking. My father would never have wanted an Executor (or his children, for that matter) digging through years of my father's and mother's personal documents. I do not think that in his wildest thoughts he would have contemplated that my cousin would satisfy his own whim using my father's estate as a sword.  

Sadly, in his digging, not only has the Executor created a rift so deep amongst family members, it will be a wonder if any potential beneficiary can climb out, not only has he made it impossible for two sisters to ever speak again, but he has neglected so much that really requires the attention of someone capable of being both competent and unbiased, including the house, which is little-by-little disintegrating; and investment accounts that were utilized by my father for reasons that are no longer viable and may now be imprudent investments. The Executor is neglecting his duties in favor of pursuing a vendetta, which is not the point of the Executor, not within his purview and certainly contrary to what my father, what my parents would have wanted. But, unfortunately, New Jersey law does not directly preclude his behavior. So, it continues...

 

Introduction

A Test of Wills - Introduction

I am in an estate battle with my one living sister. I am an attorney. The estate is located in New Jersey. The executor is a cousin who, for some reason which remains unclear to me, cannot stand me. His view of the world that was my family is one where I am an unjust monster who received the benefits of my father's goodwill throughout his life, while my sister was Cinderella who was deprived of a father's love and his consequential financial assistance. The Executor's goal is to "right the wrongs" rained upon my sister, using his power as an Executor as his sword and the writing of my parents' Last Wills and Testament as his coats of armor. He is misguided by skewed memories, guilt, and an endless supply of hostility and hatred. Yet, he has the Wills as his shields and his bottomless pit of disdain as his stomping ground.

I write this blog in the hopes of providing anyone who reads this a shield of armor for themselves. I write this as an anecdotal tale of all that can go wrong if you die either without a Last Will and Testament or with one that has not been reviewed and revised in years. I write this blog to explain to families that perhaps placing a family member in the position of Executor is not such a good idea, rather placing someone farther removed from the emotional devastation that is inherently death is a better and more prudent decision. I write this blog not as an advertisement; but rather as a saving grace. 

Most people are perfectly capable of putting their wishes on paper without the benefit of an attorney. Creating and validating a Will does not need to cost much money. However, if your reason for not drafting and signing a Will is money, what you may think you are saving by not hiring someone to get it right, could cost your Estate 1000 times to fix by those you leave behind, those whom you may have wanted in life to obtain the greatest benefits from your Estate upon your death. So, I write this blog to impart some level of urgency on anyone who reads it, to go out, and if you don't have a Will in place to either find a template online or find an attorney you trust to write a Will, sign it and have it witnessed. If you already have a will I write this to impart the importance of keeping it up-to-date. Go and review it. Make changes; or alternatively, at least confirm that it is what you want. Make sure that when you die, those you love are cared for financially and emotionally. Make sure they are not either left with a State to do your bidding or left at the unrepentant mercy of a vendetta seeking family member.

One might think that attorneys don't find themselves in personal legal battles. Well, just as doctors are not immune to illness, and therefore require medical attention, so neither are attorneys immune to injustices requiring legal assistance. I am in a battle of wills. Oh yes... the one piece that I forgot to mention is that the Executor is an attorney, as well.

A Test of Wills - History

My mother died one year ago tomorrow, the 2nd of Nissan on the Hebrew calendar or March 26th, 2012 on the Latin calendar. My father died on the 8th day of Av on the Hebrew Calendar or the 27th of July, 2012. While my mother's death was not a surprise, and in some sense might have been deemed a merciless relief, my father's death was sudden and tragic. He had been planning a life after 9 years of taking care of my mother post-stroke. During that time, he proved himself a devoted and loving husband. But, after her death, he wanted something for himself. That was apparently not to be.
  
My father went into the hospital on a Thursday evening, "for the weekend" I was told. It was a urinary tract infection which had been left to linger and would take the weekend to clear up. My father was dead by early Friday morning. I got to the hospital in time to see a ring of nurses and doctors hovering over his body with medical equipment and drugs in hand. Blood was pouring from his mouth and nose. It was clear there was little left of him. I asked them to stop what they were doing and back off. I asked that his DNR be respected. I asked that they allow him to die in peace. I knew that it would be, not only a terrible loss, but the start of a nightmare. 

At the time of my father's death, he was in the process of changing his will, for him a daunting task that was never completed. He did not like the idea of paying the attorney to do such seemingly minimal work for such exorbitant fees. My father hated paying attorneys. While he knew I made a living from my clients and the bills they pay, he hated the entire concept. He had asked me to draft numerous copies, which I had dutifully done, though I warned him against letting me have anything to do with his will because I knew myself to be a beneficiary. Knowing that my drafts would be problematic, he never used the copies I provided. Dad was indecisive in regard to whether to spend money using his former attorney or find a new one. He did not want the children of my eldest sister to get anything but a trust left under my mother's will because he did not feel that they knew him at all. We argued incessantly because I did not want them left out and promised myself that if he chose to leave them out, I would provide for them. In the end, he died with a 1998 Will in place that he knew contained several toxic provisions, not the least of which was the appointment of the Executor.

The Executor was put in place in 1998, a very different time in my parents' lives. I was 28 with two children and living in Israel. My eldest sister was barely 40 with one child, in the process of a divorce and relocated from Seattle back to New York. My middle sister was just 36 and married, living between two homes. It was a time in flux. It was a happy period in our lives and one that only contained the dischord that can be found in chaos. At the time, the Executor was the kind cousin whom we all loved. He had a dog named Cassie who became a huge influence in my eldest child's life. We visited his home often. My parents spoke fondly of him. We were both lawyers and I looked up to the years of knowledge that he had that I had not yet amassed.  He was the perfect fit. He would make certain that we were all cared for if anything happened to my parents.

In 1998 when my parents signed their wills my father feared that if he died, which seemed a likely possibility, my mother would be left with three girls who might bully her. He was probably right. Alternatively, he worried that if both of them should die, our eldest sister would bully the other two. There, he was certainly right. Our eldest sister was kind, caring, very loving, but selfish, self-centered and a bully. She made no bones about her decision that if they died she would raid the house and make our middle sister and I come find her. Dad's idea was that the Executor, my mother's nephew, would protect her from us, or my middle sister and I from our eldest. It all made perfect sense. However, as the years went on and as life changed, the decision went from being prudent to sorely misguided, something that transpires in many families.

In 2008, our eldest sister committed suicide. That was the last time we, as a family unit, saw or heard from the Executor. Her tragic death is the subject of another blog, but it plays a role here insofar as it marks the beginning of the end of any ties to the Executor until our parents' death. You see, the Executor had been hired by my father to help my sister in some personal battles she was having. He had been one of the few people who knew, prior to her death, that she was suicidal. He had been told by one of her children's fathers that she represented a potential danger to her children. He did nothing to protect her and perhaps even did not believe the father. It came out two years later, in a series of brutally cruel emails that he felt me partially responsible for my sister's suicide.

In 2010, upon the death of another cousin, one with whom I had been close years earlier, and one with whom the Executor had been very close, I made contact with the other cousin's family. We had lost contact many years earlier and then our ties further diminished when my sister died, but it did not change that I wanted to pay my respects. At that time, I began receiving cruel and unnecessarily harsh emails from the Executor. He professed an omniscience to all things family and promised that any response that I made to his cruel diatribes would be met with harsher responses. I have debated publishing those email diatribes only because they are illustrative of his cruelty and instability but will not yet do so. At the time, I instead decided to involve my father who was still deemed the family patriarch and upon whom I could rely for words of wisdom. In my father's eyes, the Executor's own words proved his undoing, as my father found the baseness of the emails beyond words that should ever be used, nonetheless among family.

In late 2010, my father, after reviewing many of the emails and after considering the family situation, decided that it would be best to remove the Executor and to put someone else in place. He sent an email to the Executor which was met with a nasty response. My father, unfortunately did not at that time go speak with an attorney. Taking care of my mother had proven an increasingly difficult task and my father found the time constraints limiting.  
 
The only copy of the email we could find post my parents' death was an email copy my father had sent from his computer to me. In the State of New Jersey, if a Will is to be revised, it must be revised in writing, and witnessed. Without written revisions, any wishes my father had or may have had are not deemed valid. Here's where the Test of Wills begins...