Earlier this month, I had the pleasure of attending a continuing education class on the use of mediation in Estate cases. Having been drafting estate plans for years and also being an experienced divorce mediator, I pondered whether mediation might be preferable to litigation in situations where a will contest is imminent. After attending the class, I now know that not only is mediation preferable, the Texas office of court administration is beginning pilot programs for people to try mediation as a way to settle their disputes. It was stressed that the public needs to be educated on the benefits of mediation which are, self determination, lower cost and the preservation of family relationships.
I asked a question of the presenters as to whether adding a mediation clause into the will would be effective. In other words, should a beneficiary file an action when there is a mediation clause, would the court recognize that the testator’s wishes were that the beneficiaries get along and had wanted them to try mediation prior to filing a court action. The answer was a resounding yes!
There are a number of reasons to include such a clause in the will. When leaving unequal amounts to your beneficiaries in the past an interrorum clause was usually the only way to go. Although such a clause can still be part of your will, the mediation clause may help the beneficiaries not only get along better, but also divide the estate according to what they feel is fair. For instance, sometimes there are unforeseen circumstances where the beneficiaries own status changes such as divorce, illness or loss of a job. The beneficiaries may know that the testator based their decision on facts which have changed and perhaps they would have updated the will had they been able.
Another reason to attempt to settle the dispute using mediation rather than filing a will contest is that the estate assets won’t be wasted on a legal battle. 1404 Examinations (depositions), attorneys and time spent in court can prove costly and everyone will have to pay more.
Lastly, mediation usually provides a faster resolution so that everyone can move on, hopefully on good speaking terms!