Introduction to estate and trust mediation

 

Some of the most emotionally charged issues are those that arise in estate litigation. Parties engaged in litigation, or even those involved in a disagreement before litigation, may mourn the death of a loved one or are attempting to put an end to mistreatment by a fiduciary. These arguing parties are frequently people who are connected to each other, either by blood or marriage.

 

In contrast to disputes involving corporations or businesses, where human ties are generally absent, estate disputes are frequently exacerbated by emotional factors and a lack of objectivity in the decision-making process. Long-standing, frequently lifetime-held family grudges, as well as emotions of unfairness, inadequacy, and sibling rivalry, tend to be a surefire recipe for unsolvable conflicts. It’s possible that the “true” reason of the argument or its origins will never be evident or even connected to the arguments made in court records.

 

When family members or beneficiaries disagree with the decedent’s decisions or interpretation of their desires, estate conflicts emerge. Conflicts may arise following the decedent’s death or during the estate planning process, potentially leading to costly and emotionally taxing probate litigation. Estate mediation, a type of alternative dispute resolution, can assist in resolving estate disputes in a more efficient and pleasant manner.

 

Some of the primary advantages of estate mediation is:

■ It promotes open discussion and negotiation among the persons involved, which helps to preserve family relationships;

■ Managing difficult situations with considerable tax implications;

■ Avoiding the stumbling blocks of suspicion and blame;

■ Saving time and money since mediation is a more cost-effective and time-efficient approach than traditional litigation.

 

 

Typical estate or trust disputes

An estate dispute, disagreement, or quarrel can arise following the death of a family member or acquaintance, referred to as the “decedent,” or during the estate planning process. Family members, beneficiaries, or other loved ones may object to the decedent’s choices or interpretation of the decedent’s intentions. The following are some of the most prevalent types of estate disputes that we encounter in practice:

Property distribution
One of the most frequent causes of estate disputes is conflicts over the distribution of property. A typical situation is one where one party believes that the decedent intended for them to receive specific property, but the will or trust does not leave them the property.

Another common situation is when family members believe that the decedent’s property has been distributed unfairly or inequitably. Suppose one sibling took a large loan from a parent that was outstanding when the parent died. In that situation, the other siblings may take issue with a property distribution that does not deduct the loan amount from the indebted sibling’s share, or, more frequently, the indebted sibling refuses to honour their obligation.

Validity of the will
Parties may dispute whether the will is valid. For example, if the decedent did not follow certain legal formalities when executing the will, then interested parties can argue that it is not legally valid. Disputes arising from the validity or interpretation of the deceased’s will can be mediated to clarify intentions and avoid lengthy court battles.

Lack of capacity
Interested parties may also be concerned that the decedent did not have the necessary “testamentary capacity” when creating the will. Testamentary capacity is a very low bar when it comes to wills, and simply refers to the decedent’s ability to understand three basic concepts: that they are making a will, the nature of the property they own and the people who will inherit their property.

If the decedent did not understand these three things when the will was created, interested parties might successfully contest its validity.

Undue influence
If the decedent changed their will because a third party compelled or forced them to do so, interested parties could dispute the estate plan’s validity on the grounds of undue influence. In many cases, the parties may disagree about whether the decedent was coerced into creating or changing estate planning documents, and obtaining the evidence needed to pursue or defend an undue influence claim demands the assistance of an estate litigation lawyer. Allegations of undue influence or fraud in the creation of the will or trust can be sensitive matters that benefit from mediation to explore the underlying issues.

Estate executor or personal representative
An executor or personal representative is the person the decedent appointed to manage the estate after their death. Conflicts over executors frequently arise when interested parties believe that the decedent made a poor choice in selecting an executor, did not choose the executor (or did not chose him/her freely), or when other parties think that the executor is mismanaging the estate.

 

Unique skill set required for mediating in the context of deceased estates and trusts

 

Mediating in the delicate context of deceased estates and trusts demands a nuanced skill set that harmonises legal proficiency with emotional intelligence. A mediator must possess a deep understanding of estate planning laws, probate procedures, and trust administration, navigating the complex legal terrain seamlessly. Equally important is the ability to approach grieving families with empathy and sensitivity, creating a space where individuals can openly express their emotions and concerns. Active listening becomes a cornerstone skill, allowing the mediator to grasp the subtleties of family dynamics and unearth underlying issues.

 

Maintaining absolute neutrality and impartiality is paramount to building trust among conflicting parties and ensuring a fair and equitable mediation process. Creative problem-solving skills are essential, as each case presents a unique set of challenges requiring innovative solutions. Flexibility, cultural competence, and a commitment to post-mediation support round out the mediator’s toolkit, ensuring that resolutions not only address immediate concerns but also contribute to the long-term harmony and well-being of the families involved. In essence, the mediator in this context acts as a compassionate guide through the intricate intersections of law, emotion, and familial dynamics, striving to bring about resolutions that honour the legacy of the deceased while preserving the bonds of the living.

 

 

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Deceased estates and trusts mediation is more than a legal process; it's a bridge between the tangible and the intangible, where empathy and understanding guide the distribution of legacies. Our mediators navigate the intricate landscapes of grief, fostering resolutions that transcend legalities and encapsulate the true spirit of familial bonds.

Want to know more about deceased estate and trusts mediation? Download our complimentary eBook on “Guiding Harmony – Mediating Deceased Estates and Trusts” or any of our other eBooks.