Today’s post comes from Hon. Elaine Rushing (Ret.), who served on the Sonoma County Superior Court bench for nearly two decades, including five years as Supervising Judge of the Civil Division. She has handled hundreds of settlement conferences in a variety of civil cases, including business litigation, construction, personal injury, employment, real estate, family law, and trusts, estates and probate matters.
A mother dies, leaving her daughter 75 percent of her estate. Her son, who thought he would receive 50 percent, contests the will. The daughter claims that their mother must have changed her will to compensate the daughter for caring for her during her last illness. The son, who was geographically distant, contends daughter alienated his mother from him and is now taking his inheritance.
An “unnatural” disposition in a decedent’s will can cause intra-family conflict, and will contests are often expensive and lengthy. More alarming, the litigation usually results in estrangement among family members. What can legal professionals do to prevent such a tragedy? Here are four suggested strategies.
- Draft the testamentary instrument to explain “unnatural” dispositions.
“I, Mother, love both children equally. However, acknowledging daughter’s recent assistance with my personal care, I have decided to leave daughter 75 percent and son 25 percent. Daughter and I have never spoken of this and she knows nothing about it.”
- Include alternative dispute resolution provisions in trusts and wills.
Mediation: Testators do not want their passing to spark a family feud. Thus, ADR should be routinely suggested, if only in a precatory fashion. The instrument can provide that the estate or trust pay for mediation, name the site for the mediation and identify suitable mediators – all issues that can be difficult to resolve once a conflict has begun. “I have no desire to have this trust provoke an expensive and bitter lawsuit among my heirs. Therefore, it is my wish that any disputes arising under this trust shall first be mediated. The trust shall bear all costs.”
Arbitration: A contest over the validity of a will is not a proper subject for arbitration, because a probate proceeding is in rem and binding on persons who are not parties to the proceedings.
However, an alternative to trust litigation might be binding arbitration. I use “might” because the most recent case to construe a trust clause requiring binding arbitration held that such clauses are unenforceable. In Diaz v. Bukey, the court ruled that a trust beneficiary was not contractually bound to arbitrate a dispute with the trustee.
Consider the following: “It shall be a condition to acceptance of any trusteeship or any beneficial rights under this instrument that all disputes among beneficiaries or trustees shall be resolved in a binding arbitration.” Here, one does not acquire any rights as trustee or beneficiary unless one signs a contract to arbitrate any disputes.
- Maximize mediation by expanding the “issues”
In probate mediation, limiting ourselves to purely legal issues wastes a valuable opportunity to help a family restore its trust. Issues that can be addressed in mediation, but would not be appropriate in litigation include mother’s love and acceptance; an apology; a thank you; and so on.
- Stipulate to arbitration
Suppose you have mediated without success. Are you only relegated to litigation? A trial may not fit your client’s needs or a trial that should only take a few days might last several weeks. Additionally, if a party is well known or averse to discussing personal matters in public, probate trials can be embarrassing. For these reasons, arbitration might be more efficient.
One distinctive aim of a testator is the preservation of the family. Another might be to avoid the loss of bequests to attorneys’ fees. In Dickens’ novel Bleak House, the recipients of the testator’s largesse wound up with nothing. Using any of these suggested tools, we ultimately can do much better.