Early mediation should be explored as a means of alternative dispute resolution in most probate disputes.
A combination of factors makes probate litigation uniquely suited for early mediation. Among the factors are:
1. Multiple Parties – Multiple Lawyers
Probate litigation typically involves multiple claimants to the same pot, namely the natural heirs of the deceased, and any additional devisees (for example, charitable organizations) named either in the will submitted for probate or a prior will. Of course, with multiple parties who have inherently conflicting interests come multiple lawyers. Each additional set of lawyers increases all parties’ legal costs exponentially.
2. Hostility Level
Probate disputes are fraught with personal hostility and bitterness between combatants, so cases routinely become “spare-no-expense” all-out-wars in short order. In the typical case, one or more heirs truly believes that the person who got the lion’s share of the estate must have taken advantage of the decedent when the decedent was in a weakened state. And, in fact, in many cases, a person will change an estate plan shortly before death to increase the share going to the person to whom the decedent was closest near the end. This usually results in speculation by other heirs about “undue influence” and “lack of testamentary capacity.” The resulting resentment adds fuel to the fire.