Careful estate planning helps avoid complications and disputes but, unfortunately, this is not guaranteed.
Family disputes over estates are common in Calgary. However, they do not always have to end up in court with a contested will or trust.
In many cases, estate mediation is a viable alternative to litigation, providing a less confrontational and more affordable way to settle disputes for families.
The estate mediation lawyers at Vest Estate Lawyers LLP are ready to listen to your estate issues and help guide you towards a mutually beneficial solution.
What is estate mediation in Alberta?
Estate mediation is an alternative dispute method that is used to settle issues with wills, trusts, and other matters regarding a deceased person’s estate.
A similar process is used for solving disputes in divorces, the workplace, and other emotionally charged situations.
A formal meeting (or a series of meetings) is held at which all the parties involved in the estate dispute try to work out a resolution with aid of a professional and independent mediator.
Depending on the complexities of the dispute, a mediation session may last all day or carry over into further days. These sessions may be conducted at a lawyer’s office or elsewhere, with a mediator facilitating discussions and guiding participants towards a workable solution.
If and when the parties reach a resolution, the agreement must be drawn up by lawyers and signed to become legally binding. Court approval may be required at a later date depending on the nature of the dispute.
Who takes part in estate mediation?
All parties with a stake in the dispute need to be present, with or without their lawyers. This may include family members, beneficiaries, personal representatives/trustees or attorneys under powers of attorney.
Whether or not you attend with your lawyer is your prerogative.
All parties must agree on the nominated professional who mediates. He or she must be independent and without bias. The mediator is often a lawyer but can be another professional trained and qualified to mediate.
The mediator cannot provide legal advice to either party. However, he or she may offer a legal opinion according to their experience of litigation and decisions made in the Alberta courts.
A mediator does not make any decisions. The disputing parties remain in control of the decision-making at all times. The role of the mediator is simply to facilitate the process.
Depending on the nature of the dispute, accountants, valuators or other professionals may also be called into mediation sessions.
Estate mediation sessions must be conducted in a spirit of respect, mutual benefit and compromise to be successful.
What are common issues that estate mediation can help solve in Alberta?
The most common issues solved by estate mediation in Calgary are as follows:
Contesting or defending a will
Families often find that the contents of a will are not what they expected. That does not necessarily mean they have a valid case for estate litigation.
When there are questions over a will, it may be possible to reach a mediated resolution between disputing parties rather than settling the matter in court.
A will is a legally enforceable document so if there are serious question marks over the validity of a will (e.g., the testator was mentally incapacitated or was unduly influenced), this can be complex and may end up requiring resolution in the courts.
Read more about the grounds for contesting a will here.
Establishing will variations
Dependent children and spouses are entitled to be adequately provided for after the main provider in the family passes away. This is considered a moral and legal obligation.
As such, even if a will is technically valid but does not adequately provide for dependents, it can be legally contested. Mediation may help the disputing parties reach a resolution.
Contesting a trust
Trusts allow assets such as cash, property, vehicles, and so on to be transferred to another party, such as a child, while the settlor (grantor of the trust) is still alive.
This can have unintended consequences during the estate administration process if transfers of assets are called into question. For instance, there may be a presumption that a child was holding the assets in trust for the parent instead of taking legal ownership.
While these matters may end up being settled in court, mediation may be able to help.
Can you avoid the complications and expense of estate litigation in Alberta?
The estate litigation process in Alberta is complex, time-consuming, and expensive. Cases involving accusations against close family members can also become emotional and stressful.
Many families also value their privacy. Court proceedings during litigation are generally open to the public while discussions during estate mediation remain confidential and private.
For all these reasons, estate mediation may be a preferable option to litigation.
Saving family relationships with estate mediation in Calgary
In ideal circumstances, with a little compromise from both sides, estate mediation results in a favourable outcome for both parties.
Litigation always involves a winner and a loser, which can damage family relationships forever.
One of the most important reasons for choosing mediation over litigation is that it can help save relationships that may otherwise be beyond repair due to the bitterness resulting from court battles.
Types of mediation in Alberta
Three are two main types of mediation, as follows:
- Facilitative mediation: mediation based on the needs and interests of the disputing parties rather than their legal rights
- Evaluative mediation: mediation focused on the legal rights and positions of the parties involved
Looking for estate mediation in Alberta?
Whether you are disputing or defending a will, trust or another estate issue, it may pay to consider mediation before litigation. Mediation can save time, money, and relationships.
At Vest Estate Lawyers in Calgary, we can either represent you in mediation or act as mediators for your dispute. Organize a free case evaluation before making a decision.