December 12, 2017

Mediation in Estate Litigation

Estate litigation is becoming increasingly popular in Ontario. Estate litigation relates to many different aspects of an estate including:

  • Whether or not the deceased had the capacity to make a Will;
  • Whether someone forced the deceased to make changes to their Will which benefited some beneficiaries and not others;
  • Whether those who acted under Power of Attorney before the deceased passed away dealt with the assets properly and had accounted for them;
  • Whether an executor is properly administering an estate;
  • Just about any other aspect of an estate that you can imagine.

Litigation involving estates is extremely expensive, very time consuming and often results in family members never speaking to one another again.

If you have not been involved in estate (or other) litigation before, you will be shocked at its cost. Legal expenses in the range of $50,000-$100,000 can be incurred easily on an estate litigation case, even where the issues are not complicated.

Mediation is a method used to try to settle estate litigation when the warring parties are not able to do so themselves. Mediators are individuals with specific educational and experience qualifications. Many of them are experienced lawyers or retired judges.

To try to cut down on the number of court trials relating to estates, there is a rule that requires all estate litigation in cases in Toronto be submitted to mediation before they can proceed to trial. In other areas of the province, mediation is encouraged but not mandatory.

Since mediation is mandatory on estates in Toronto many lawyers will suggest the combatants try mediation before even commencing court proceedings. The hope is that the mediation will resolve the matter and litigation will not be necessary.

The mediator is impartial and the mediation will typically be held in a neutral location. There will generally be individual “breakout” rooms for each side in the conflict.

It is important to select the mediator carefully. Not all mediators’ styles are suited to the dynamics in a particular lawsuit. If the litigants are particularly acrimonious, you may need a mediator who is prepared to be direct, when appropriate, with the parties. Other files require a mediator with a soft and gentle approach.

If mediation is successful in resolving an estate’s case, a Mediation Agreement will be entered into to clearly define the terms of the resolution.

Due to the ever increasing cost of estate litigation, serious consideration should be given to mediation very early in the process.

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Feel free to contact us at any point for assistance or advice with respect to Estate Law, Estate Planning, Estate Administration or Estate Litigation. We may be reached at 705.435.4339 or contact us via email.