Probate Battles: Tips on How to Manage Wills Between Family Members
Today’s post comes from Hon. Elaine Rushing (Ret.), who served on the Sonoma County Superior Court bench for nearly two decades, including five years as Supervising Judge of the Civil Division. She has handled hundreds of settlement conferences in a variety of civil cases, including business litigation, construction, personal injury, employment, real estate, family law, and trusts, estates and probate matters.
A mother dies, leaving her daughter 75 percent of her estate. Her son, who thought he would receive 50 percent, contests the will. The daughter claims that their mother must have changed her will to compensate the daughter for caring for her during her last illness. The son, who was geographically distant, contends daughter alienated his mother from him and is now taking his inheritance.
An “unnatural” disposition in a decedent’s will can cause intra-family conflict, and will contests are often expensive and lengthy. More alarming, the litigation usually results in estrangement among family members. What can legal professionals do to prevent such a tragedy? Here are four suggested strategies.
- Draft the testamentary instrument to explain “unnatural” dispositions.
- Include alternative dispute resolution provisions in trusts and wills.
Arbitration: A contest over the validity of a will is not a proper subject for arbitration, because a probate proceeding is in rem and binding on persons who are not parties to the proceedings.
However, an alternative to trust litigation might be binding arbitration. I use “might” because the most recent case to construe a trust clause requiring binding arbitration held that such clauses are unenforceable. In Diaz v. Bukey, the court ruled that a trust beneficiary was not contractually bound to arbitrate a dispute with the trustee.
Consider the following: “It shall be a condition to acceptance of any trusteeship or any beneficial rights under this instrument that all disputes among beneficiaries or trustees shall be resolved in a binding arbitration.” Here, one does not acquire any rights as trustee or beneficiary unless one signs a contract to arbitrate any disputes.
- Maximize mediation by expanding the “issues”
- Stipulate to arbitration
One distinctive aim of a testator is the preservation of the family. Another might be to avoid the loss of bequests to attorneys’ fees. In Dickens’ novel Bleak House, the recipients of the testator's largesse wound up with nothing. Using any of these suggested tools, we ultimately can do much better.
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