Cal. Litig. 2023, Volume 35, Issue 3


Written by Stephen Sulmeyer & Richard Collier*

Traditionally, estate planning lawyers have zealously guarded their clients’ right to do as they please with their assets upon their death, while testators generally have been unwilling to discuss or have anyone question their testamentary choices. Increasingly, however, the idea that whatever happens after the testator’s death is none of his or her concern is seen as outdated and potentially destructive. When heirs are kept ignorant of the contents of testamentary instruments until after the testator’s death, the odds increase that there will be disputes or even litigation between the beneficiaries over any number of issues.

This article advocates bringing in a mediator or co-mediators at the beginning of the estate planning process to facilitate potentially difficult conversations between the testator and the beneficiaries, as well as among married testators and among the beneficiaries, to avoid later disputes. Such discussions, while potentially challenging, increase the likelihood of resolving actual or potential disputes while the relevant people are still alive, heading off the kinds of family-rending fights that probate litigators so often see.

Mediation has long proved to be an appropriate and effective process for resolving contested inheritance disputes postmortem. It’s well known that a skillful mediator can provide a safe space for airing even long-standing grievances, can explore options not always available through litigation, and can help reach emotional and relational closure even where reconciliation might not be on the agenda. But why wait that long? Why spend the emotional and financial capital? Why risk a devastation — such as a permanent rupture of relationships — that could have been averted? As scary or challenging as having frank conversations about death, money, and family relationships can be for both testators and their counsel, it’s better to have them before the testator’s demise, when there is a chance of putting things right, rather than playing it safe and avoiding potentially difficult conversations with the result that testators end up bequeathing a lawsuit to their heirs.

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