Dear Ms. Allison: What sorts of things can be mediated in a Will Contest or other estate dispute? Lily Rose, Western Oklahoma

Dear Lily Rose:
An estate dispute (anything involving an inheritance whether with a Will or from no planning) generally happens after the death of a family member or loved one. Occasionally, a dispute arises before someone dies and while in the process of making the estate plan. Mediating in that context is easier to resolve instead of waiting until the person has passed.

Some reasons behind disputes are that family members have different ideas or opinions of what should go to whom and when. Beneficiaries or other loved ones may disagree with the choices of the “decedent” (legal term for the person who died) or the interpretation of the decedent’s wishes. Their opinions only matter, legally, under certain circumstances, because people have the right to do pretty much whatever they want with things they own – unless they are incompetent or subject to unfair (undue) influence by a wrongdoer. What other people think mainly only matters when the following common types of estate disputes can be proven:

Lack of mental capacity
Interested parties might be concerned that the decedent did not have necessary mental capacity when creating the Will. Legally that is called “testamentary capacity”. It simply refers to the decedent’s ability to understand these three things:
1. He or she is making a will
2. The nature of the property he or she owns
3. Who the people are who will inherit that property

Documented evidence might exist that the person making the Will did not understand these three things when creating the Will. With such evidence, interested parties might successfully prove the decedent when creating it, did not have the mental capacity to make a legal Will.

Validity of the Will
Parties may dispute whether the Will is even valid. There are assorted reasons for that. If multiple Wills exist, there might be arguments over which one is valid. If the decedent did not follow certain legal formalities when executing the Will, the interested parties can argue that it is not valid. If the decedent did not have mental capacity as described above, the beneficiaries can argue it’s validity too.

Undue influence
This is not just the stuff of movies and TV shows. If the decedent changed his or her Will because a third party pressured or forced them to make the change, interested parties could argue the estate plan was not valid due to that unjustified sway (“undue influence”). Lots of times, parties disagree about whether the decedent was coerced into creating or changing estate planning documents. Getting the necessary evidence to file or defend an undue influence claim is a complex matter and requires the skill of an estate litigation lawyer.

Executor or personal representative issues
An executor is the person the decedent nominated in his or her Will and before death to manage the estate after his or her death. Once appointed in the Will, the Probate Court judge must make the nomination official by court order. When interested parties believe that the decedent made a poor choice of executor, did not choose the executor (or chose the executor under pressure), or think the executor is not qualified, they stand a good chance of “winning” a Will contest or having the executor removed. “Interested Parties” include those named in the document and those state law requires to inherit.

Uneven property distribution
Frequently, estate conflicts develop from distribution of property in the Will. Often, someone believes that the decedent intended for him or her to receive specific property, but the Will does not leave it to that person or assigns it to someone else. Other times, family members believe that the executor gave out the decedent’s property unfairly or inequitably (not in equal or designated shares). An example is when someone took a large loan from a living person that was still owed when the lender died. It’s possible that the one who still owes money believes he or she no longer must repay the loan. It’s also possible that the other beneficiaries believe the property distribution should deduct the loan amount from the borrower’s inheritance. If that loan, its payment, and its effect on the distribution was not addressed in the Will, court disputes can arise.

When to contact an estate attorney
Generally, all these issues can be prevented by avoiding “Do It Yourself” Wills or using lawyers with insufficient experience to help you make your Will. It is better to get estate counsel from a knowledgeable, experienced, estate planning attorney who helps you think of and plan for all possibilities, and who drafts clear instructions in your Will. Doing that first is a great idea. And, if your family is large, blended, or touchy (they’d rather fight than talk) hiring an estate planning mediator is wise. Then everyone involved signs off on the agreement for what and who goes into the estate plan before the plan is even made.

But there are plenty of folks who do not take that advice. Thus, disputes arise, and it is necessary to either go through a long, expensive lawsuit to resolve them or find alternative dispute resolution options, like mediation, that people can do without resolving it through a Judge.

If you’re dealing with an estate dispute, you should engage an estate litigation attorney as soon as possible. An experienced estate lawyer can review your situation and advise if mediation is the best course of action for you. Most experienced estate attorneys will tell you that mediation can be useful at many points in administering the estate, whether the conflict is already in court or has not yet been filed. It is most cost-effective to mediate before anything gets to court. It’s also less emotionally stressful.

How estate mediation works
All mediation is collaborative. As a form of alternative dispute resolution, the mediation session is facilitated by a trained mediator who helps keep the disputing parties focused on reaching a settlement with which they can all agree.

A court is stuck with options the law prescribes. Mediation allows the parties to create their own solutions. It’s the “win-win” alternative. With no authority to make settlement decisions, the mediator serves as a catalyst between the parties to help them analyze circumstances, discuss pertinent information, and delve into practical solutions. The mediator’s job is to avoid picking sides and help everyone reach agreement. Plus, mediation is far less expensive in time, money, and stress than a lawsuit. The best mediators assure that you leave with a signed written agreement that is enforceable like any contract is.

Estate mediation is best led by a mediator with vast experience in estate matters. That’s because she fully understands estate issues. Her years of experience give insight into what is and isn’t relevant or workable. She knows how to listen to clients with the widest array of emotional reactions and family relationships to address the parties’ unique situation. Her experience includes how to work with independent advisors from legal, financial, and other fields when the parties invite them. Finally, she can offer many more creative solution options than someone with little or no estate knowledge.

Resolving estate disputes by mediation is smart. An estate’s legal issues involve family and other long-term relationships, and many have been stewing for years. These sorts of disputes are highly emotional and intricate. Collaborating on solutions through mediation is not just about the estate conflicts. The process may often provide opportunities for disputants to restore relationships or start to move on from them. Often, just seeing that they can find agreement is healing for the parties.

Independent advisor involvement in mediation
It can be especially useful to involve “independent advisors” in your mediation. Independent advisors help the disputants understand the factors and consequences of solution alternatives. You surely may invite them. All the parties may have their own lawyers attend and advise them on legal issues. The parties’ individual estate attorneys promote their own client’s rights and best interests and might also help by providing pre-mediation preparation work and drafting the written settlement agreement. The parties can agree on a joint financial advisor, CPA, social worker, or other professional to provide additional neutral guidance and information. These professionals, like the mediator, have no decision-making authority. Decisions are entirely those of the disputing parties.

Advantages of estate mediation
• Parties can address non-legal issues that are the root causes of their disputes
• Solutions can be more comprehensive and creative than a court’s options will be
• Blame does not have to be assigned to any party (a “win-lose” outcome)
• Quicker resolutions of estate disputes (often in one day or less)
• Significant money is saved by avoiding expert witness fees and trial preparation costs and time

What if estate mediation fails?
If you tried mediating “in good faith” (all parties really tried their best) and couldn’t reach a mutually satisfactory agreement, your dispute can still go to court. Attempting mediation first does not require you to give up your right to sue each other. Going to court after mediation only means that you’ll start the court process all over from scratch, like mediation never happened and most likely will be required to mediate again before being granted a trial date. Also, remember that mediation is private; anything you discussed during estate mediation is confidential and can’t be used as evidence in a lawsuit. You just must be prepared to put in the time, anxiety, and expense of suing each other.

What if estate mediation succeeds?
Everybody wins. All parties participated in creating the solution so are more likely to understand it and stick to it. No one gets everything he or she wants. No one loses everything. Everyone gets something he or she wants. Everyone saves money, time, and emotional stress. Everyone arrives at a place of peace. Peace is the great result of mediation.