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Leaving More than Money: Mediation Clauses in Estate Planning Documents


Lela P. Love


Yeshiva University - Benjamin N. Cardozo School of Law

Stewart E. Sterk


Yeshiva University - Cardozo Law School


Cardozo Legal Studies Research Paper No. 206

Abstract:     
When probate disputes arise, an increasing number of courts have been referring those disputes to mediation. Estate planners, however, have been less proactive about drafting wills to include mediation clauses that would anticipate estate disputes and channel them away from litigation. When a will mandates mediation, the will provides a dispute resolution mechanism designed to preserve family harmony, conserve estate assets, and avoid airing the family's "dirty laundry" - objectives common to many testators.

Mediation clauses in wills are no panacea. They are of little value to testators who exalt control over estate assets above all other concerns, and they are unlikely to bind disappointed family members whose primary claim is "against the will" rather than "under the will." Nevertheless, compared to other alternatives frequently employed by estates lawyers (including "no contest" clauses), mediation clauses present significant potential for reducing estates litigation, with its attendant financial and emotional costs.

Number of Pages in PDF File: 33

Keywords: mediation, estates, wills, probate, contests, estate planning

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Date posted: September 25, 2007 ; Last revised: September 28, 2011

Suggested Citation

Love, Lela P. and Sterk, Stewart E., Leaving More than Money: Mediation Clauses in Estate Planning Documents. Cardozo Legal Studies Research Paper No. 206. Available at SSRN: http://ssrn.com/abstract=1016989 or http://dx.doi.org/10.2139/ssrn.1016989

Contact Information

Lela P. Love (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
(212) 790-0365 (Phone)
(212) 790-0205 (Fax)

Stewart E. Sterk
Yeshiva University - Cardozo Law School ( email )
55 Fifth Ave.
New York, NY 10003
United States
212-790-0230 (Phone)
212-790-0205 (Fax)

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