In the context of an estate litigation in Ontario, the division of personal items can often be a contentious issue. Whether a will exists or not, disputes over who gets what can arise, leading to prolonged legal battles and strained relationships among beneficiaries.
When the deceased died with a Will, the deceased’s wishes regarding the distribution of personal items are potentially outlined. If stated in the Will, the Estate Trustee appointed will have the authority to distribute the personal items listed in the Will to the named beneficiaries. However, disagreements among beneficiaries or ambiguity in the will can lead to disputes. In such cases, mediation or negotiation among the parties involved can be pursued to reach a consensus.
In some instances the wishes are set forth in a memorandum, which the Estate Trustee may decide to follow in accordance with the wishes of the deceased.
In some instances there are no instructions or guidance provided by the Will or the deceased and the estate trustee must exercise discretion.
An estate trustee is required to keep an even hand. As such, a neutral system for the selection and distribution of items is sometimes the solution, where available. In this article, we explore three alternative options for dividing personal items: a lottery system, a round-robin pick, and a compilation of lists from each beneficiary with the hope that the items can be distributed to the beneficiaries, rather than sold via auction, or otherwise.
Lottery System: A lottery system offers a randomized approach to distributing personal items among beneficiaries. Here’s how it works:
- Assign each personal item a number.
- Have all beneficiaries draw numbers randomly to determine the order of selection.
- Starting with the beneficiary who draws the first number, allow each participant to choose one item in the order determined by the lottery.
- Continue selecting items in rounds until all beneficiaries have chosen an equal number of items or until all items have been allocated.
This method ensures fairness by giving each beneficiary an equal opportunity to select items of personal significance. It also removes biases and potential conflicts that may arise from subjective valuation of items.
Round-Robin Pick: A round-robin pick involves a rotating selection process where each beneficiary takes turns choosing items until all have been allocated. Here’s how it can be implemented:
- Arrange all personal items in a designated area.
- Determine the order of selection among beneficiaries (e.g., based on age or randomly).
- Starting with the first beneficiary, allow them to choose one item.
- Proceed to the next beneficiary in the predetermined order, and repeat the selection process until all items have been chosen.
This method encourages collaboration and ensures that each beneficiary has a say in the distribution process. It also allows for flexibility in accommodating individual preferences and sentimental attachments to specific items.
Compilation of Lists: A compilation of lists involves soliciting input from each beneficiary regarding the personal items they desire. Here’s how it can be executed:
- Provide each beneficiary with a list of available personal items or allow them to inventory the estate.
- Instruct beneficiaries to compile a list of items they wish to inherit, prioritizing their preferences.
- Collect and review the lists submitted by each beneficiary.
- Attempt to accommodate the preferences of all beneficiaries by allocating items according to their lists, prioritizing items with multiple requests.
This method empowers beneficiaries to express their preferences and allows for a more personalized distribution of personal items. It also facilitates transparency and communication among beneficiaries, potentially reducing conflicts over specific items.
Summary
In estate litigation in Ontario, considering alternative methods for dividing personal items can help mitigate conflicts and expedite the estate administration process. Whether through a lottery system, round-robin pick, or compilation of lists, these creative solutions offer flexibility and fairness in distributing items among beneficiaries. Ultimately, the goal is to honor the wishes of the deceased while fostering cooperation and harmony among those involved in the estate settlement process.
In the event the beneficiaries cannot agree on how the personal items are to be distributed, the Estate Trustee may exercise their discretion to simply sell or auction the items and divide the proceeds in accordance with the Will. Although this is an unfortunate outcome for those beneficiaries who want some sentimental or valuable personal items belonging to the deceased, sometimes this is the most practical option to avoid a high conflict, costly and lengthy estate administration.