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Estates & Wills & Trusts

Mediation a great option in estates disputes

The number of interested parties in estates matters makes mediation a great option for settling disputes, says Toronto estates litigator Alexander Turner.

Under the Rules of Civil Procedure, mediation is mandatory in contested estates, trusts and substitute decision cases commenced in Superior Courts in Toronto, Ottawa or the County of Essex, but Turner, an associate with Bales Beall LLP, says litigants in all corners of the province could benefit from the process.  

“It is something that everyone should be aware of and consider. When you have a family fighting over an estate, there can be a number of claims that need to be sorted out at once. It’s likely that many people are going to get something, it’s just a question of how much,” Turner tells AdvocateDaily.com.

“Mediation tends to work better and the parties usually welcome it in those instances, because it allows you to help them structure a settlement without going through court.”

Turner says cases without a single, clear-cut legal question are best suited for mediation, and that description almost always applies to estates disputes.

“They are rarely all-or-nothing events. There are always shades of grey,” he says. “Mediation is really good there because it lets you be creative so that you can reach a settlement that wouldn’t even have been available to you in a courtroom.”

Turner says mediation can be particularly helpful when the estate encounters problems with outstanding taxes or other debts.

“It’s not uncommon for a deceased person to have gotten behind on their taxes for a couple of years, particularly if there were capacity issues,” he says. “It helps to have some time to know exactly what’s out there, and exactly what everyone is going to receive.”

In addition, Turner says mediation offers the prospect of a much speedier resolution for the parties to a dispute. When clients are open to mediation, Turner says it’s possible to reach a settlement within three or four months of filing an application.

“Without mediation, you are looking at a year minimum if you go through the regular court route,” he says. “Getting things settled faster allows people to move on with their lives and limits their costs. No matter what, you pay a high price to be right in court.”

Still, the process can be hard work, Turner warns, noting that a mediated settlement will never be a magic bullet for healing any long-term rifts exposed by a fight over an estate.

“You get some mediations where everyone gets along afterwards, and others where everyone is sick of each other,” he says. “Mediation is not a guarantee that you will like your family later or save any relationships, but it gives you a better chance than going through a court trial with them.”

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