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.
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.
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 for 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.
It is never too early to start estate planning – and most people need more than a simple will to cover their needs. A few essential documents can help you ensure that assets end up where you intend and that your children, spouse, or other loved ones are properly cared for. Our firm focuses on a wide range of Estate Planning services to suit all your needs.
Call 403-226-9757 or contact us through the form below to book a meet and greet with one of our estate lawyers. You don’t need to be wealthy to want the peace of mind that an estate plan brings. It is too late to make decisions if you lose the capacity to do so. Whatever your estate planning needs, contact us now for a confidential one-on-one evaluation.