A Wills Mediation Clauses Could Help Prevent Future Conflict
Two generations ago, there were very few Wills Variation actions. There were fewer divorces, second marriages, or common law relationships. As families have become wealthier, there is more to fight about. As families have become more complex, the relationships have become more convoluted. These factors all create fertile ground for disputes.
Over the next decade, CIBC estimates that we will see the “largest intergenerational wealth transfer in Canadian history“. It is estimated that $750 billion will be transferred by 2025. According to the study by CIBC’s Deputy Chief Economist Benjamin Tal, BC residents have received the largest value inheritance during the last decade. This trend is likely to continue.
With such large sums of money to be transferred, the question to be addressed is how to resolve testamentary disputes.
Since most Wills Variation Applications involve family members, family mediation presents a viable early resolution strategy. The strength of family law mediation is that it is interest based, and recognizes the interplay of family dynamics and historical conduct. Further, Family Law Mediators have a great deal of experience addressing the needs of warring family members.
The challenge is getting disputants to the mediation table before they head to court. However, this is seldom triggered at an early stage of the proceedings and is most often used as a last-ditch attempt before trial. Unfortunately, by the time these matters get to court, the participants are often polarized and vitriolic.
To be most effective, mediation should be the primary response to testamentary disputes. Unfortunately, the testator cannot simply say that any disputes surrounding their Will must be resolved by mediation. Such an edict would not be legally enforceable.
However, Wills are moral instruments. The testator has both legal and moral obligations upon death. Further, their wishes confer a moral duty on those impacted by the Will. Fulfilling the testator’s wishes is a key function of the Executor.
You could included a non-binding mediation clause in your Will. A clause such as the following:
It is the testator’s solemn wish that any disputes arising from this Will, involving any person named in this Will or any person having a moral or legal interest in the estate, be resolved by mediation.
This would send a clear message that the Testator wished disputes to be resolved through wills mediation. This would put the Executors and any other interested party on notice that mediation was the preferred method of conflict resolution.
Those contesting the Will would still have the option of going through the courts. Therefore, it is unlikely that such a clause would be viewed as a testator trying to control from beyond the grave, because the clause is not binding. The clause would also change the tenor of the dispute by focusing more on resolution than the fight.
Litigation at its worst can exacerbate conflict and irrevocably destroy family relationships. Wills Mediation at its best, however, can redefine broken relationships, re-establish family ties, and reduce discord.
Reprinted from the March 2017 “Praecipe”