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Reference Articles > Resolving Challenges to
Testamentary Documents and Other Estate Disputes
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This
article reviews the different ways to resolve
disputes that arise over testamentary documents.
Resolving Challenges to Testamentary Documents and
Other Estate Disputes
© 2008 M.
Jasmine Sweatman
There
are times when the last known will of the deceased
is challenged for various reasons. These reasons
vary but the most common ones relate to the lack of
capacity by the testator or testatrix and undue
influence. Sometimes it is inevitable given family
dynamics for the challenge to be made. However, if
made, controlling the process and working towards an
effective resolution can be ‘half the battle’. This
article explores the different ways to resolve
challenges or disputes arising over testamentary
documents (i.e. wills and codicils). There are three
common ways to resolve challenges: informal
settlement, mediation, and court.
Informal settlement
At any time there may be an opportunity to resolve
the matter informally. This may be by counsel
discussing the case amongst them and feeling out the
positions of the various parties. Or, it may even
arise by the clients talking amongst themselves.
Once lawyers are retained our rules of professional
conduct preclude us from dealing directly with the
“opposite” client. All communications must be lawyer
to lawyer. This does not, however, stop the clients
from speaking with each other directly.
Each matter has its own rhythm. There seems to
eventually always be a “right” time to settle.
Sometimes this is early on in the matter; at other
times it is only after documents are exchanged and
significant disclosure has been made.
Mediation
In 1999, the Ontario Rules of Civil Procedure were
amended to establish a pilot project in Toronto and
Ottawa-Carleton for mandatory mediation of estates
disputes. It was initially a pilot project that has
been made permanent. The Rule applies to virtually
all disputes arising from wills, trusts, powers of
attorney, trustee accounting, statutory claims
against estates, and other trust, estate and
fiduciary matters.
Early on in the estate litigation process, a motion
for directions is typically brought to set out the
procedure for the litigation. These directions (in
Toronto and Ottawa-Carleton) will include directions
regarding the conduct of the mediation, such as the
issues to be mediated, the parties who are to attend
the mediation, the apportionment of mediation costs,
and service and timing. If the matter is outside
Toronto and Ottawa-Carleton, then the motion for
directions can still request that the court order
the matter to mediation – it just is not mandatory
in the other areas. Likewise, on their own
initiative, the parties can voluntarily agree to
take the matter to mediation.
The mandatory session is three hours, though the
parties may agree to extend it. Non-mandatory
mediation typically last a day when all is said and
done. All communications at the mediation, and the
mediator's notes and records, are deemed to be
without prejudice settlement discussions. If the
mediation leads to a solution, a settlement
agreement is prepared and subject to carrying out
the terms of settlement the matter is over.
Otherwise, the litigation proceeds.
Mediation can be ”rights-based", where legal
positions play a key role in the negotiations,
"interest-based", where the process seeks to get
beneath a party's stated position to the underlying
values and concerns that are driving it; or a
combination of the two. In most estate situations,
interest-based mediation is appropriate, since
deep-rooted family feelings have often simmered for
years, and may present a major challenge to the
mediator but also expands the options for creative
solutions not available through conventional legal
channels.
What are the key elements of mediation? First, it is
confidential. The mediator does not necessary even
keep his or her notes. Second, it is an excellent
opportunity for the parties to resolve the
litigation, as it presents an opportunity early in
the process for everyone, lawyers and clients, to
set their mind to settlement. Third, the parties
have the chance to select the mediation of their
choice. As not all mediators are suited for all
kinds of disputes, having control on who mediates
the matter is significant. If that is not done the
court’s mediation co-ordinator will assign a
mediator from the roster list.
After selection of the mediator and notification of
the mediation date, each party prepares a statement
of the factual and legal issues, and sets out
his/her/its position and interests. In addition to
the brief, key documents are included such as the
will (this is obvious but wills have been left out
on more than one occasion), the inventory of the
estate and the current value of the estate, a family
tree, including the ages of the relevant family
members, and if the outcome of the mediation depends
on the value of a significant asset such as a piece
of real estate or a family business, a proper
current valuation or appraisal of this asset so that
the negotiation will properly reflect the true
value, and the accounts of the estate trustee.
The mediation itself is usually conducted on an
informal yet professional basis. The process of
mediation sees the mediator, as a third party
neutral who has professional experience in the
estate’s area providing his or her assistance to the
parties to help them achieve resolution of the
issues between them. The mediator is not a judge
(although he or she may be a retired judge) and is
not an arbitrator. The mediator is not a decision
maker. He or she does not decide the case for the
parties. Some (but not all) mediators will not (even
if asked) give their views of the outcome of the
matter.
The mediation process has proven to be very
effective. It is becoming the norm even where it is
not yet mandatory.
Court
Another option for resolving estate disputes is to
argue the matter before a judge or go to trial. Some
estate disputes are not suited for informal
settlement or mediation. This may be especially so
where a party is entrenched in the “principle” of
the issue or where the issue is black and white
result where it is not possible to come up with a
“win-win” solution at mediation.
The usual deterrent to this option are costs.
Another deterrent is that the court is bound by
prior case law in determining the issues. However,
sometimes getting a court to decide the matter or
one issue within the matter is worth the trip to
court. As well, going to court leaves open the
possibility of having an appeal if the party is not
satisfied with the lower court’s decision.
Whatever the process chosen, it is very important to
select counsel experienced in the area. Challenges
to testamentary documents cause delay and increased
costs during the estate administration process.
Understanding the ways and options in which the
challenges can be resolved is important. Knowing
what they are and how to avoid them in the first
place are also important.
For more information on estate, trust, powers of
attorney or guardianship topics please see
accompanying articles. Remember these articles are
provided for information only and are not meant to
be legal advice. Please consult with a professional.
M. Jasmine Sweatman practices at the law firm
Sweatman Law Firm and can be contacted directly by
telephone at (905)337-3307 or by email at
jasmine@sweatmanlaw.com
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