Having the ‘tough talk’ can save costly litigation

WHILE sitting with your adult children on a Sunday afternoon explaining how your estate will be divided when you die may not be everyone’s idea of a good time, a prominent North Queensland litigation lawyer says the “tough talk” is a necessity – especially for those involved in business.

Evan Sarinas of Sarinas Legal is increasingly encountering cases where wills are being contested – whether it’s because they weren’t updated, or because the parents failed to sit down with the children beforehand and explain their wishes and decisions.

“People think, ‘I’ve dealt with it in my will so I can rest in peace’. They may do, but for those left behind, the war has just started,” Mr Sarinas said. “Problems can arise particularly when children aren’t dealt with evenly under a will and the affected child may want to contest.

“These disputes can turn very ugly as the dirty laundry of the family is aired for all to see.”

Mr Sarinas’ firm acted in an extremely complicated family dispute involving a secret deal done 20 years before the death of the father. The father gifted the $10 million family business, by way of transfer of shares, to one of the children without the knowledge of the others.

“The two younger children were significantly disadvantaged,” Mr Sarinas said. “What ensued was a bitter dispute involving allegations of fraud, undue influence and complicity not only against the scheming child, but also against the lawyers and accountants engaged in the original transaction.

“Expensive litigation could have been avoided with open and frank discussions 20 years before.”

Mr Sarinas said the “tough talk” was something every family should schedule to outline the plans for the family property or business in the event of death or illness.

“The tough talk is bound to hurt some feelings, but will save hundreds and thousands of dollars in legal fees, stress and the possibility of allegations of undue influence and fraud arising against Mum and Dad by one of the siblings in the event of a dispute,” Mr Sarinas said.

“If children are given the tough talk at the time, there is usually less chance of litigation because they understand the reasons why and have the opportunity to ask questions, process the information and accept their parents’ wishes.”

Mr Sarinas also recommends that families plan properly for business succession. Failure to do so can also lead to future problems and “scapegoating”, especially if a child is left with the responsibility of taking over a family business that ultimately fails.

“At the end of the day, families need to seek advice, have an open and frank discussion, and review the documents from time-to-time as things change in their lives,” Mr Sarinas said. “You can never guarantee that litigation won’t happen, but being open about your will is definitely a measure you can take to limit it.”

This media release is not intended as legal advice and all liability is disclaimed for reliance on it.


Contact Sarinas Legal director Evan Sarinas (07) 4724 2969, esarinas@sarinaslegal.com.au

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