WILLS AND ESTATES Michael Butterfield
Mediation for Estate Disputes
G
etting people to think about their Wills is a challenge.
A 2014 Report by BC Notaries found “only 55% of British Columbian adults have a current and legal Will.”1 Getting people to think about what happens if there is a dispute after they die is nearly impossible. The reality is that many people would be horrified by the thought that their beneficiaries could fight over their estate. Unfortunately, it happens. Wills Variations are a growth area for lawyers. There are tangible benefits to planning for possible disputes and adopting mediation as the preferred manner of resolution. Many people, however, do not understand what an estate mediation would look like.
A Typical Estate Mediation Sarah had four children. Her husband had died a number of years earlier. Her youngest son Paul moved in with her after his marital break-up. Paul cared for Sarah during her last 2 years of life, including cooking for her, managing the house, taking her to medical appointments, administering 1 http://www.notaries.bc.ca/resources/ showContent.rails?resourceItemId=3341.
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medication, and so on. Her other children did help, but Paul did the lion’s share of the care. When Sarah died, a dispute arose over Paul’s receiving a “life interest in the family home for as long as he needed, after which time the home would be sold and the proceeds divided equally among the children.”
In the course of the mediation, the parties were asked what they thought their mother would think of the dispute. The response of the youngest, Anna, was “Heartbroken.” That had the effect of postponing the other children’s interest in the estate. The Will was also unclear as to how Paul’s “need” was to be determined. The dispute meandered through the Court for over 2 years without resolution. The parties were in mediation only because of a Court Order at a Trial Management Conference, approximately a month before the trial. At the mediation, there was a lot of anger around the perception that Paul “had taken advantage of their The Society of Notaries Public of British Columbia
mother.” One sibling felt Paul was always about “what he wanted.” There were also allegations of dishonesty and missing money. Over the 2-year process, the family’s suspicion and distrust escalated. In the course of the mediation, the parties were asked what they thought their mother would think of the dispute. The response of the youngest, Anna, was “Heartbroken.” The other children agreed. That was a breakthrough moment in the mediation because they had found common ground. The process moved from combative to conciliatory. That case example underscores the divisive nature of litigation. It also conveys how historical family conflicts can fuel the conflict. The eventual resolution saw a fixed date for Paul to move out of the house and for it to be sold.
Why are Estate Disputes Becoming More Common? Part of the reason for the conflict is there is a lot more to argue about than there was 25 years ago. CIBC2 estimates we will see the “largest intergenerational wealth 2 http://www.huffingtonpost.ca/2016/06/06/ cibc-canada-in-line-for-a-bequestboom-as-750-billion-of-assets-passedon_n_10318872.html.
Volume 26 Number 1 Spring 2017
