The Closer

A Mediation Newsletter July 2014

Mediating a Will
by James Rainwater

I was recently asked to mediate the distribution of a will. Per the testator's request, playing cards were to be drawn to determine which heir chose first from a list of selected items. As the executor was an heir, the potential for conflict was evident. This necessitated the use of a neutral, outside party.

Wills are written to prevent or reduce ambiguities at the time of the estate's administration. Yet, occasionally, language in the will and/or animosity among the legatees requires someone to facilitate the proper transfer of property. An adult child-heir appointed as the executor may appear to be unfair or inappropriate to the other children of the deceased.

From my experience, distrust and skepticism from one sibling to the next would have made the decedent's wishes difficult to perform. Simply having a disinterested party read and follow the will's instructions kept the focus on the estate's items and not on past hostilities. A mediator is in a better position to foster cooperation while not creating another point of suspicion or contention among the heirs.

Attorneys who represent various heirs to an unusual or complex will may wish to consider employing a mediator. By training and practice, mediators are generally perceived and regarded by the parties as being completely neutral, with no bias or interest one way or the other. As a will's verbiage can seem to be a mass of legalize and over-formality, the mediator is likely to bring a human, less-threatening element to its distribution.

For the cost of, perhaps, a half-day mediation fee, attorneys and heirs can have some peace of mind while utilizing a professional mediator. This added marginal expense should be treated as an administrative fee and be paid from the estate. The passing of a loved one can be a traumatic event in the lives of those named in a will. As with a family law mediation, emotions, tensions, and anxiety may run high in the final distribution of a parent's estate. Mediation should be an avenue to consider in order to secure a smooth transfer of the testator's possessions.

Rainwater Law