Will Contests Part IV: Do Not Always Believe The Mediator

February 24, 2015Articles Garden State Gavel Blog

This is the fourth and final part of my series on will contests. I invite you to read parts I, II and III as well.

A number of years ago, I mediated and later tried a will contest. The facts were unusual.

The testator/uncle had no children, but rather, a large extended family of nieces and nephews. He had a live-in girlfriend of approximately 15 years. My adversary described the relationship with the girlfriend as a “marital-like relationship.”

The uncle was elderly, in failing health and was taking medications that affected his capacity. At times he would hallucinate.

During the period of time that the uncle was in failing health, a series of changes, amendments and transfers of assets were made to the uncle’s will, trust and assets that shifted significant assets away from the nieces and nephews and towards the girlfriend. In several instances, the girlfriend prepared and witnessed the transaction documents.

We represented the nieces and nephews. We were able to tie some of the transactions moving assets to the girlfriend to days when the evidence demonstrated that the uncle was hallucinating.

We first tried mediation. I thought we had a great case. However, the mediator frowned on it.

The mediator discounted the various transfers and adjustments to estate planning documents and transactions by describing us as having either a 20%, 30% or 40% chance of success on each. He then multiplied these percentages by the various amounts at stake and came up with a very low settlement figure.

Our clients were not happy with the mediator’s proposal. I advised them that mediation is not binding and that if they are unhappy with the proposal they can walk out and try the case. They took my advice and we did precisely that.

The trial judge found that the girlfriend exercised undue influence based in large part on the girlfriend’s involvement in the amendments and the fact that the uncle could not make decisions regarding his estate on days when the evidence demonstrated that he was hallucinating.

As a result, the trial judge found that every amendment and transfer was the product of undue influence, even those that the mediator discounted as having only a 20 to 40% chance of being invalidated by the Court.

The moral of the story is that mediators are far from perfect. If you believe in your case, you should proceed with it.