How to Deal With Estate Litigation

Death is just the beginning. A host of grievances may simmer below the surface. The probate process can dredge up unresolved emotions and family conflicts, intensified by grief. As survivors find themselves rehashing the past, the settlement of probate can ignite long-buried resentments. If the parties have been looking for a fight for years, probate unleashes an opportunity to reopen old wounds.

Probate litigation is driven by intense emotions, especially when disappointed or disinherited beneficiaries attempt to reconcile their feelings with the directives of wills and trusts. Excluded beneficiaries do not always easily accept that the decedent was expressing a clear-headed and intentional purpose in cutting or reducing their expected share.

Who loved whom most? That is the raw question that bedevils children and family members who are trying to come to terms with dysfunctional relationships. A reaction is often to blame somebody else, whether that’s a manipulative sibling, an evil stepmother or a conniving caretaker. The list of emotions is long, capped by anger and betrayal. Entitlement, another strong motivator, cuts both ways, driving both relatives and care providers who may have shouldered tasks directly.

Managing expectations

Attorneys and mediators are often reluctant to address the emotional issues, which they see as the domain of financial planners, family counselors or psychologists. Lawyers may regard their professional responsibilities — dispensing legal advice, assessing the merits of a case, providing relevant tax and property information, or pursuing a painstaking discovery process — as more technical.

On the other hand, a narrow purview can lead to more practical solutions. Lawyers do have a role to play in setting expectations, especially for what can prove a painful and drawn-out legal battle. They can help clients understand that even winning is not necessarily an end in itself. Are their clients in denial? Are they looking for therapy rather than advice and advocacy? Is money in fact the true driver for an estate dispute, or does it primarily serve as the ammo to keep the dispute alive?

Although a court judgment might provide vindication, unresolved emotional baggage is not so easily dismissed. Even mediation — which becomes the normal route for most estate contests — may not work if the goal is to get even or punish at all costs. Parties must at least be willing to engage in some give and take to reach a settlement.

Preparing for the worst

While the testator is still alive and mentally competent, attorneys play a critical part. As they prepare estate documents, they must be mindful of a few basic steps to lessen the chances of bitter emotions later coming to the fore:

• Proper drafting and execution.
• Explaining to family members the reasons behind asset division.
• A “no contest” clause to discourage disgruntled beneficiaries from challenging.
• Reaffirming mental competency with a medical examination.
• Avoiding any indication of undue influence by keeping beneficiaries at arm’s length.

Some experts suggest drafting a letter of explanation separate from the will, laying out the rationale for the decisions in more detail. Others disagree, contending that too much explanation can backfire, adding fuel for litigation and room to question the testator’s decisions. That latter school recommends a straightforward and factual drafting, avoiding the temptation to be punitive or overly explicative.

Think about what you want, and find a lawyer you feel comfortable with, whether you are preparing your own will or settling a family member's estate. A trustworthy attorney can help you settle estates free from the difficult emotions you are facing.

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