©2017 John Edwards & Judy Copeland
“All families are psychotic. Everybody has basically the same family, it’s just reconfigured slightly from one to the next.” –Douglas Copeland While probate cases can involve banks and charities, most often they involve family members and friends. “Probate” is used broadly here to refer to probate estate administration, trust administration, conservatorships, eldercare cases and litigation involving the same.
When a family member dies or becomes incapacitated, there is a risk that one or more members of the family will become a curse upon the rest. When family dynamics erupt, litigation frequently makes the crisis worse. The litigation process causes parties to become entrenched in their positions.
Many of the disputes that arise in probate matters can be avoided or lessened in its intensity by advanced planning. A good estate planner can sometimes anticipate potential trouble and make provisions in the planning document to prevent it. For example, in cases of sibling rivalry, naming one sibling to be in charge of the estate can generate resentment among the other siblings. Naming a professional fiduciary will likely prevent it. In the context of mediation however, advance planning is not an option so a solution needs to be identified to resolve disputes. Here are some of the common disputes that arise in probate mediations and how to address them.
Trust Administration Disputes:
One child is named as the trustee and has been holding the trust assets for over two years. His two siblings are furious that they have not received their inheritance and believe the trustee is trying to wear down his siblings because he wants to buy the family home himself, for a discount.
Sibling B believe that Sibling A unduly influenced their father to amend his trust to favor A over B. A dispute raises issues of who was the favored child and why.
A late-life marriage to a younger person who will benefit at the deceased childrens’ expense. This type of disputes is often accompanied by claims of undue influence, mistreatment of the older spouse, theft of property, and occasionally, causing the death of the older spouse.
Probate Estates have many of the same issues:
A favored child placed in charge of the estate over the others.
A larger distribution to one child over others.
A distribution to a charity or to a non-relative over a family member.
The manner in which the administrator/executor child has spent money and otherwise managed or mismanaged the estate.
These cases not only involve the management of finances of an impaired family member, they often involve the care of family member. Issues arise such as:
Placement in a nursing home (Is it necessary? Which one?).
One family member moving in to provide the care and being paid for it.
One family member isolating the impaired family member, preventing others from visiting, and leading to suspicion about the care being provided.
The amount of money being spent on care.
Because so many of these probate, trust, and conservatorship disputes are driven by intense emotions experienced by the parties – which often have their roots in dysfunctional family dynamics going back many years, if not decades – emotions often interfere with the business of settlement. The lawyers in the case may buy into their clients’ emotions or urge the clients to “set emotion aside” and engage only in logical legal analysis in order to find resolution. We can identify the problem, but what is the solution?
The goal is to get the clients to look forward, not backward.
The human brain can’t be focused on the past and in the future at the same time. Two tools are valuable of this point: communication and recognition. (See: Calming Upset People with an EAR Statement™) The client may frequently need to express his or her displeasure to someone who had acknowledges the difficulty of their situation. It is inefficient for a mediator to devote hours to this venting process, but is worth devoting some time to actively listening to the parties and express enough empathy to allow them to feel heard, enabling them to set aside the emotions. At that point, we can ask the parties to take a more businesslike approach with a focus on making proposals to resolve the conflict. Proposals should contain the basic three “W” elements: WHO does WHAT and WHEN. During the negotiations continually remind the client that the goal is to extricate themselves from a nasty situation in a manner that is fair.
John C. Edwards is an attorney, mediator and trainer for the High Conflict Institute. He has taught the High Conflict Personality Theory for the Advanced Mediation Training Program at the National Conflict Resolution Center, as well as in many seminars given to a wide array of professional groups in various states. As a skilled dispute resolver, John began his mediation practice in 2002 after practicing law as a litigator for many years. Since then, he has successfully mediated hundreds of cases including real estate matters, professional malpractice, personal injury, employment disputes, probate, and business disputes in addition to his speaking and training engagements. Contact us at www.HighConflictInstitute.com to schedule John to speak to your group.
Judith (Judy) Copeland is a lawyer and mediator at the National Conflict Resolution Center. She practiced law exclusively in the areas of probate, estate planning, trusts, conservatorships, guardianships, and elder law for 39 years. She authored two chapters of CEB’s California Will Drafting and has lectured extensively for a variety of legal organizations including CEB, the Rutter Group, the California Judges Association, several local Bar Association and the California State Bar. She retired from the active practice of law in 2014 to devote her time and skills to mediations. She believes that most of the disputes in these areas of law are particularly suitable for mediation and that the clients are best served when agreement can be reached.