Probate disputes by Sue Nelson

by | Feb 24, 2014

“If all the misery could be just burnt away…” Charles Dickens

“Suffer any wrong that can be done you rather than come here” was Dicken’s advice on litigating over an inheritance dispute. 

I suppose I have a love:hate relationship with probate disputes. I love what it has produced in terms of English literature.  Victorian novels would be thin fare had families without inheritance unhappiness.  Would Mrs Bennett have been so bothered about marrying off her daughters had it not been for the ‘entailing problem’ which the Bennetts home?  And then there is Jane Eyre, the lost beneficiary of her Uncle’s estates in the West Indies.  I even have a fondness for our quirky British rules that have produced a land of rolling estates – better that than a country carved up into strips, the French way, to make sure everyone has their share.  That’s the love but the hate burns deep. 

Invalid, home made will

I am the solicitor whose mother died with an invalid, home made will.  Worse still, the shock of her sudden death was exacerbated by the surprise revelation that we had two half brothers.  I am not sure the functional family exists but right then we were not functional. 

We three did our best.  We were probably somewhat inadequately served by our solicitor and certainly unprepared for the psychological complexity of managing disappointments and differences.  Sadly, just as in Jarndyce and Jarndyce, our cause became ‘so complicated that no man alive knows what it means’.  Certainly no man or woman alive knows what it meant to me that we managed the process so poorly.  Twenty years later the division within the family still ripples through our lives.  Our complexity arose not from multiple claimants or unascertainable assets but from the people involved.  Our relationships were complicated by the stages we were at in our lives.  Each of us was deeply affected, but differently, by our loss.  These days we are more familiar with heir hunters on tv and celebs tracing their ancestry but outside those media grabbing activities there can be a cruelty of dealing with relatives who cannot engage with you, that is beyond collecting ‘their share’.  There is no knowing how if affected our half brothers who never emerged from behind their solicitors’ letters.

Wishing for a better tomorrow

At about that time I trained as a mediator and it is a great regret of mine that we were not able as a family to agree on the appointment of a mediator to help us sort out our differences compassionately.  I would have settled for a sensible unconnected family member or friend but no one came forward.  Now 20 years have passed and, among other things, I work as a family mediator.  Couples arrive distressed, disappointed, angry and sometimes bitter and full of a desire for revenge.  And truly some of these couples leave a few months later with their affairs re-ordered having come through a process in which they have been able to have their say and make their own decisions.  Step by step mediators move the process along, unblocking en passé, consolidating agreements and recording outcomes.  It does not remove the sadness and the disappointment but it should not add to those emotions either.  Some clients really do say ‘sorry’ while others feel able to share both their sadness and their wishes for a better tomorrow once separated. 

Many cases involve complex assets as well as differing needs.  Cash now or pension later?  Who is going to be responsible for the debts?  Increasingly my work involves helping people plan for the future.  ‘Keep your eyes on the distant horizon’, I say to dads who are not seeing their children – one day this will change.  In divorce and separation work once separated there is always a competition over scarce resources – one portion of jam, two slices of bread.  Planning the future helps clients to transit from a broken relationship into a new life.

And so it is with families who struggle to come to terms with a division of property following death.  As more people have wealth to leave because they own their homes so increasingly family members have the crushing feelings of disappointment to deal with on top of their bereavement.  Why has Peter got more than me?  Why do I have nothing?  Why does Mary deserve this money?   The mix can become even more toxic when combined with a sprinkling of sibling rivalry or historical feelings of rejection.  Throw in a family business or bad estate planning and relationships can be traumatised. 

Mediation cures more than litigation

Mediation is not a ‘cure all’ but it can often offer more of a cure than litigation does.  Misery cannot just ‘be burnt away’ as Dickens understood; it must be dealt with less it festers.  If you have clients who are starting to fall out over probate consider whether a session with a suitably trained and experienced mediator might offer long terms benefits for all concerned.  Once clients in dispute can get around a table with a trained professional who is able to provide a safe and impartial environment the alchemy of mediation gets to work.  Early mediation offers an opportunity to avoid the courts, helping a family to re-focus itself and write themselves a better story for the future.

Sue Nelson
Civil and family mediator
Conflict Coach