Many baby boomers are now well into their 60s (born between 1943 and 1960). Even by modern life expectancy standards that gives an increased likelihood of death in the near future, so the baby boomers, like everyone else before them, are having to contemplate their own mortality. However, the baby boomers are also very likely to have parents in their 90s who may die leaving their children (who are likely to be in sibling groups of four) to deal with what is left behind.
At the risk of over-generalising, two things are different for this set of bequeathers and beneficiaries. First, the parental group is reasonably well off and has been the recipient of pensions which have largely done their job and left assets still available in their estates, often the primary residence. (Because of the capital gains tax exemption on the principal private residence, more money is locked up in these properties than ever before.) Second, the benefiting baby boomers are probably the most well-off beneficiaries ever (subject to the damage to their superannuation funds done by the current economic downturn). So why do they litigate over their parents’ estates?
From the point of view of someone who observes the aftermath of death in the law of wills and estates, the greed which is often seen as the motivation for challenges to wills looks a little different in the case of the baby boomers, who seem more likely to be driven by emotion than need in challenging such wills. The baby boomers are also more legally sophisticated than past generations in challenging wills and seeking family provision or testator’s family maintenance orders (these are orders where the court varies the will on the basis that the testator should have made better provision for the person challenging the will).
They are challenging more and more and indeed they are quite often using up the entire estate in such challenges.
It is striking that such challenges to wills seem to occur regardless of the size of the estate. The courts are very disturbed by the trend which sees challenges over quite small estates, and seek to do something to reduce what they see as a disproportionate use of legal resources, but in my opinion, this litigation is actually often about emotions.
Let’s not forget that the baby boomers discovered feelings - well, the expression of them - while their parents tended to be undemonstrative. Sibling rivalry (and baby boomers tend to come in sibling groups of four or more) is alive and well among baby boomers and is pushing their litigation. It is exacerbated, in my opinion, by the fact that the previous generation is not naturally open to talking about what they plan to do in their will.
Ninety-year-olds are part of the generation which never discussed money, religion or politics. This means that when the will is read the children may find that the parents left the estate divided unequally, according to the perceived needs of the children. It is quite common to find that of four children, one has not prospered and has no assets while the others do. A will may be made which gives major assets to the less well off child and much less to those who have done well.
Unfortunately in the absence of real understanding created by previous discussion in the family, this is interpreted as unfair by the other children or as an indication that their parent did not love them as much as the other.
The language used by the applicants in the family provision/testators’ family maintenance cases is of morality - it is language about promises made, hard work done and the deserving nature of the well-off child. In my opinion it should be read rather as the cry of a child who feels that their parent has loved their brother or sister more. The baby boomers were parented with a mixture of tough love, strict rules and benign neglect. Affection was demonstrated rarely and praise was even rarer. No wonder when the will gives more to one child than to another, the child given less, even if they are now over 60, feels hurt and angry, and uses their knowledge to sue the other. Sibling relationships are often completely destroyed by this process.
Baby boomers are also more legally sophisticated in disposing of their own assets. Baby boomers don’t just make wills, they do estate planning. And unlike previous generations, although they seem to continue to have the view that their parents’ estate should come to them (albeit in equal sibling shares), they seem equally of the view that it should not necessarily go to their own children. Because they are aiming at having full and rich lives to the end, they tend to focus on making sure they have enough for their own lives in their estate planning, rather than stinting themselves in order to make sure there is enough to pass on.
That was a characteristic of the previous generation. The children of the baby boomers may not inherit very much at all. That will depend on how well the estate planning balanced the wants (not needs) of the baby boomer parents against their life expectancy rather than on the desire to give children a substantial legacy. This, of course, is also a product of that life expectancy - by the time a baby boomer dies he or she may not just have children, but grandchildren, and the children may be very well established already. Again, the issues which are raised in relation to death are more about emotions than financial need.
For the solicitor dealing with baby boomers contemplating death, complexity is the watchword. Baby boomers are likely to have more complex families (multiple partners and children from different relationships) than previous generations; and the process of estate planning needs to take into account emotional as well as the financial concerns which used to be all the solicitor had to consider.
The best will drafters know all this - they are a mixture of lawyer, psychologist, tax specialist and clairvoyant - and if they do their job well, no one will know. The absence of litigation is the mark of a truly excellent will drafter, and the baby boomers challenge this expertise like no one else.