“I don’t care if the lawyers and the courts end up with all of the money. I just don’t want her to get a penny of it.” This is the type of statement I’ve heard several times in a dispute over an inheritance. Usually both parties are gearing up for a fi ght and neither one wants to compromise.
I don’t handle contested cases and the main reason is that people in these types of cases tend to lose sight of reason. Some believe that “winning at all costs” is the proper stance to take. Knowing this, in my estate planning practice I try very hard to anticipate and avoid any possible disputes. As part of my interview with clients I always listen carefully to their statements regarding their family structure and their plan of distribution.
If the facts involved are such that they tend to lend themselves to disputes (e.g. blended families, unequal distributions to children, disinheritances, gifts to caregivers, etc.), I offer solutions that might avoid a dispute. If there is a question of whether the client is competent to create an estate plan, I make sure that there are witnesses to testify as to the client’s capacity. Sometimes this requires a doctor’s declaration. If circumstances could be interpreted to suggest that someone is being unduly infl uenced (someone other than the client makes the appointment or pays for the estate plan, or a potential benefi ciary wants to be present during my meetings with the client) I am especially careful to probe the client to make sure he or she is acting under his or her own free will.
When I am contacted by someone who desires to challenge an estate plan or has “issues” with the person handling an estate, I always look for ways to avoid a lawsuit. Sometimes just explaining probate or trust administration procedures will calm someone down. If there is an issue that they can’t resolve, I often recommend mediation. Mediation is a relatively informal process whereby a neutral third party can listen to the position of both sides and render an opinion, or in many cases, a judgment. Mediators are usually retired judges or attorneys who have a great amount of experience in the law and also have the skills to get both sides talking and looking towards a “win-win” solution to the particular dispute. In all cases mediation is much quicker and less expensive than using the court system to resolve a dispute. Mediation can be done with or without each side hiring an attorney. Depending on the issue, I might recommend binding mediation. In that case both sides have to agree that they will accept the decision of the mediator as the fi nal resolution.
If there is a good faith dispute that must be resolved, hopefully one or both of the parties involved will be a peacemaker guided by reason. If so, a voluntary mediation is the best route in terms of reducing the stress, money and time involved. © 2009 by Marlene S. Cooper. All rights reserved.