33 Pages Posted: 25 Sep 2007 Last revised: 28 Sep 2011
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.
Keywords: mediation, estates, wills, probate, contests, estate planning
Suggested Citation: 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: https://ssrn.com/abstract=1016989 or http://dx.doi.org/10.2139/ssrn.1016989