How Mediation Can Resolve Common Disputes That Arise During Will Probate

Probate disputes often reflect the worst aspects of family law coupled with issues of undue influence.

At the time of a will probate dispute the court system is seeing the litigants at a trying period in their lives. They have lost a loved one and tensions are running high as to the actual intent of the deceased person. While the parties may be furious with one another, there is always the hope that some degree of familial ties can be preserved. Mediation is uniquely suited to resolve these tensions. The litigants can tell their sides of the story to the mediator, who has the time to listen. In my experience, it is very important for all litigants to feel as if their side of the dispute has been properly told. It is after this emotionally draining experience that they are ready to find common ground and solutions to the problems presented.

Challenges frequently arise when all heirs are not treated equally. One child may feel they had the burden of caring for the aging parent and should be compensated. A variation of this story arises when the elderly parent has given a power of attorney to only one family member. After death disputes arise as to assets that may have been spent by the child with the power of attorney. Rarely have receipts been saved, and frequently large amounts of cash have been paid to home health aide. Expensive litigation and a trial will only serve to reduce the assets. A mediator can help the parties narrow their actual disputes and discuss the cost of proving the righteousness of a position. The insight of a neutral third party is invaluable.

There are many variations on the theme in probate disputes. Tensions frequently arise in step-sibling situations or where the children of the decedent have a position adverse to the second spouse. Occasionally, a dispute arises when the decedent has left all of his or her assets to a charity or a caregiver to the omission of their heirs. The decedent may have said she will leave a specific bequest at death, which is not enforceable. A joint account may have been established by the decedent with a child. The issue then presents itself as to whether this is a gift to the child or a convenience account.

Care must be taken to explain the shifting burdens of proof with regard to undue influence. Litigants must realize the enormity of a lawsuit. To litigate such a case involves medical records surrounding the time of execution of the will. Clergy, neighbors, and family members may be called to testify. This has the effect of pitting all who know the decedent on one side of the case or the other. A Judge will have to decide whether the will is valid or it is not. One side wins and one side loses. On the other hand, a mediator can guide the parties to a more equitable resolution taking into account the law and long-term family dynamics.