“Litigation rarely heals differences or promotes understanding,” points out Jay Folberg, University of San Francisco School of Law professor and author of numerous books on alternative dispute resolution.
He’s right. Moreover, will contests and other disputes between family members are even less likely to be healing. Yet there are often quite good reasons to dispute the disposition of an estate:
The will doesn’t meet legal standards. The will may be undated, lack the appropriate number of witnesses or fail another basic requirement.
There is a superseding will. People often replace older wills with new ones and forget to ensure the older one is accounted for.
The will writer lacked testamentary capacity. If a new will was written late in life, the person may not have been in sound mind when they wrote it.
Fraud, forgery, or undue influence by a beneficiary. A suspicious bequest to someone such as a caregiver may indicate forgery, fraud, or undue influence brought to bear on the writer.
If you believe you have sufficient reason to challenge the validity of a will, you may be right. That doesn’t mean that won’t have to deal with blowback from family and friends who disagree — or who have something to gain from the will you’re challenging.
Benefits of mediation in family property and probate disputes
Cost. Lawsuits can be very expensive. Mediation doesn’t guarantee a lower cost, but it is very likely to be less costly because it is less formal and takes less time.
Privacy. Filing a lawsuit is a public act and court proceedings are open to public scrutiny. Not only might this be embarrassing, but publicity — even if it’s only among family and friends — can also serve to cement the parties’ positions in place. In addition, the privacy provisions mean that what you reveal during mediation can’t be used against you in any future court proceeding that may be necessary.
Dealing with the real issues and reconciling differences. Your legal position might be valid, but the dispute might really be about sibling rivalry, evolving roles within the family, conflicting feelings, misunderstandings, unspoken fears or resistance to change. Mediation allows you to address these issues directly, to the degree doing so is helpful. It might even help you heal the breach.
Creative resolutions. Judges have only a limited number of remedies available. Reframing the dispute as a family conflict can allow you to see it differently and come up with a resolution that works for everyone.
Before you take your will contest to trial, consider mediation as an option. If you’re unable to resolve the dispute, you can always go to court later on.