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Probate disputes? How a mediator can bring the family together

There is always a competition over scarce resources: two slices of bread, one portion of jam

April 2, 2014 | By:

Where there’s a will, there’s an argument. But, says mediator Sue Nelson, lawyers’ letters and emotional upheaval can be avoided if you seek mediation 

Probate-family dispute-funeral-620 Corbis

Sue Nelson

Sue Nelson

I have a love-hate relationship with probate issues. For example, I love what they have produced in terms of English literature.

Victorian novels would be thin fare had families not suffered inheritance unhappiness. Would Mrs Bennett have been so bothered about marrying off her daughters had it not been for the ‘entailing problem’ with the Bennetts’ home?

And where would Jane Eyre have ended up had she not been 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.

So that’s the love. But the hate burns deep.

My own family’s dispute

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 my two siblings and I had two half-brothers. I am not sure the functional family exists, but right then we certainly weren’t 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.

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Sadly, just as in Jarndyce and Jarndyce – the draining legal case at the heart of Dickens’ Bleak House – our cause became “so complicated that no man alive knows what it means”.

Certainly, no one else alive can know what it meant to me that we managed the process so poorly. The division within the family still ripples through our lives, 20 years later.

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. And each of us was deeply affected, but differently, by our loss.

These days, we are more familiar with heir hunters on TV, and (celebrity) ancestor-tracers. But away from those media grabbing activities, there can be a cruelty of dealing with relatives who do not engage, except perhaps to collect their ‘share’.

There is no knowing how the whole situation affected our half-brothers, who never emerged from behind their solicitors’ letters. And it remains a great regret of mine that we were never 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.

Mediation vs litigation

Now. 20 years have passed and, among other things, I work as a family mediator. Much of my work is with couples, who arrive distressed, disappointed, angry, 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, be heard and make their own decisions.

Step by step, mediators move the process along, unblocking impasses, consolidating agreements and recording outcomes.

This does not remove the sadness and disappointment, but nor should it add to those emotions. 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 there is always a competition over scarce resources: two slices of bread, one portion of jam. Planning the future helps clients to transit from a broken relationship to 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 family members increasingly have the crushing feelings of disappointment to deal with on top of their bereavement.

Why has Peter got more than me? Why do I get nothing? Why does Mary deserve this money?

The mix can become even more toxic when combined with a sprinkling of sibling rivalry or historic ill will. Throw in a family business or bad estate planning, and relationships can be traumatised.

In such circumstances, 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 or it festers.

If you know people who are starting to fall out over probate, consider whether a meeting with a trained and experienced mediator might offer long-term benefits for all concerned.

Once disputing parties can get round 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 a better story for everyone’s future.

Sue is an experienced lawyer, qualified both as a barrister and a solicitor, who now works as a mediator specialising in resolving relationship and financial disputes among couples and families. She works throughout the UK, with colleagues who share her passion for transforming relationships. She can be contacted through Berkeley Square Mediation