Some would assert that the pandemic and shifting landscape around wealth transfers is fueling increased trust and estate disputes. This article will summarize a podcast with an interview of the Honorable Glen Reiser, a judge who serves as educational trainer for all trust and probate judges throughout California. He spent more than 20 years with the Superior Court in Ventura County, California, and before that, more than two decades as a civil litigator. The full transcript of the podcast can be found here: https://www.jdsupra.com/legalnews/podcast-jams-neutrals-on-the-evolution-5378200/
Contested cases have risen dramatically over the last five years, and particularly recently due to COVID.
- With Covid, we are seeing a high number of unexpected deaths.
- There is an increase in the will disputes, with issues relating to blended families and sibling rivalry.
- More people are dying without a will due to the unexpected nature of Covid.
- In the “old days” more wealth was earned individually, but now we are seeing that more frequently, wealth is transferred through family deaths and trust and estate matters, so that seems to be where large amounts of capital are exchanged. Contests in that area have risen dramatically.
The Court system is increasingly encouraging mediation over trial.
- With Covid, we are seeing a high number of unexpected deaths.
- There is an increase in the will disputes, with issues relating to blended families and sibling rivalry.
- More people are dying without a will due to the unexpected nature of Covid.
- In the “old days” more wealth was earned individually, but now we are seeing that more frequently, wealth is transferred through family deaths and trust and estate matters, so that seems to be where large amounts of capital are exchanged. Contests in that area have risen dramatically.
- Mediation has advantages the court cannot offer.
Mediation can save time and money.
- Attorneys can work with the mediator and other parties to craft often creative solutions.
- Mediation can allow for more customized solutions, since they can be tailored specifically to the parties.
Capacity tends to be a significant issue and cases require a lot of court resources.
- Will and trust contests tend to be judge decided not jury
- The burden on judges for these types of cases is large because the cases require trial and long opinions, so judges generally would like to encourage settlement
- The testamentary instrument is either a trust or a will. That document in most cases, not always, was drafted by an estate planner or a lawyer who dabbles in estate planning. Thorough preparation would be to interview the estate planner to see what their recollection is, even if it relates to issues such as capacity, undue influence, document interpretation or intent.
- With capacity cases, a geriatric psychiatrist or PhD psychologist with expertise in geriatrics should be consulted.
The role of undue influence in estate disputes.
- In our mobile society, many family members move away, but someone stays to help take care of the elderly person. So, when the elderly person changes their instrument to benefit the person taking care of them, then that’s a common circumstance where undue influence will be alleged.
- Undue influence is a particularly fact specific factor, and questions that should be asked are: Is the person isolated? Are they competent to write emails? Who is taking them to the lawyer’s office? Whose lawyer is it? Who is sitting in on meetings with an estate planner? These issues and more are the type of fact-specific inquiry needed on these cases.
Tips for successful mediation of estate disputes.
- Preparation is key.
- Consider spending money on the science up front. There is a lot of development in the science of cognitive deficits with scientific evidence that can be relevant to undue influence and capacity, and it may be that spending money on the science up front will make the negotiating position stronger.
- Find a mediator who will read everything, understand the positions and get involved.
- Avoid selecting a mediator who is just a “carrier pigeon” to take the offers back and forth. Look for a mediator who has the skill set to add to the discussion.
Conclusion
At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in estate planning and litigating estate disputes. Contact us today!
