If you find yourself in a dispute with relatives over a deceased family member’s estate, you may want to consider a negotiated resolution of the dispute. I have represented clients on both sides of: undue influence and mental competency litigation; complex trust and Will interpretation litigation; as well as other litigation family member’s initiate against the estate of a deceased relative.
Once the litigation is filed and the parties through formal or informal discovery have a general understanding of the facts of the case, a negotiated resolution may be a more satisfying outcome than trial. Regardless of whether you litigate or negotiate, however, you need to have an attorney who has a full understanding of the law on the topic you are addressing and who can negotiate or litigate it well on your behalf. Family disputes over a deceased relative’s estate can bring out the worst in people in that while the money part of the case certainly matters a lot, the emotions do as well. Hurt feelings may not only be as a result of what one or both parties in the litigation had done to each other in the past, but also what the deceased relative may have done or not done in the past that hurt one or both of the parties’ feelings. Emotions could range from guilt of a relative feeling that they had not paid enough attention to their deceased relative during the last years of his/her life, the feeling of being bullied by the other party or perhaps even being bullied by the deceased relative, or feeling insignificant in the eyes of the deceased relative. I have found that in such disputes, if there is going to be a negotiated resolution, picking a mediator who has a firm understanding of the law of that area, an understanding of the family dynamics, and strong mediation skills is essential. I used several mediators that show particular expertise in these types of disputes and I have found they do a superb job in assisting the parties to reach a negotiated resolution.
I had one case where I was defending an undue influence claim wherein the other side’s attorney decided not mediate with a very effective mediator since the other side was confident they would win in litigation. It turned out that they lost at trial, lost a reconsideration motion by that same judge, and lost an appeal thereby losing the opportunity to obtain hundreds of thousands of dollars in a negotiated resolution in mediation two years prior to expending a lot of time and money. In that case, neither side expected that mediation would have improved a relationship between the parties in that they truly disliked each other and would continue to do so. However, mediation prior to trial was in all the parties’ best interest and would have yielded the other side hundreds of thousands wherein after over three years of litigation and unsuccessful appeal, the other side has nothing to show for their time and expenses.
Through mediation, you can control the outcome and decrease the amount of time and money spent on the dispute. Leaving the dispute to be resolved by a judicial ruling takes the process out of your control.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].