Mediation of Estate Cases

by Roy Paul, Esq.


The mediation of estate cases is particularly likely to involve close and intensely emotional relationships so as to make the mediation of such cases very challenging. Often, disputes arise among siblings or between parents and children. While the core issues may seem to focus on money or control, perceived personal slights going back years can boil to the surface. Mediation allows the parties the opportunity not only to avoid or end litigation, but to also find a way forward that can at least begin to heal fractured relationships.


Common Factors in Estate Disputes

Many estate disputes arise in probate court where one party undertakes to propound a particular will. Other interested parties may take the position that the decedent was not competent to make the will at issue or that the will was the product of undue influence. This is particularly likely to occur when the decedent has changed his or her estate plan to favor a new spouse or one of several siblings. Many estate plans involve trusts so that fiduciary obligations are owed not only by the personal representative of the estate, but by one or more trustees. The personal representative(s) and the trustee or trustees may or may not be the same person. There may be issues concerning joint bank accounts or the change of beneficiary designations prior to death. Actions taken prior to death under powers of attorney may also be at issue and there can be a cause of action for breach of fiduciary duty directed at the personal representative even if the challenged actions took place prior to the appointment of the personal representative. See Greenway v. Hamilton, 280 Ga. 652, 631 S.E.2d 689 (2006). Regardless of the form of conveyance, the theme is often that the decedent would not on their own have favored the recipient claiming the benefit and, instead, really intended for an alternative family member to be the beneficiary.

The Importance of Procedural Issues

Procedural issues are important in reaching a successful mediated agreement. Under O.C.G.A. § 53-5-25, the heirs and beneficiaries may enter into a settlement agreement admitting a will to probate, but providing for a disposition of property of the estate other than as provided in the will. Where all parties interested in an estate are legally competent to consent, it may not be necessary to seek Probate Court approval under O.C.G.A. § 53-5-25. See Leone Hall Price Foundation v. Baker, 276 Ga. 318, 577 S.E.2d 779 (2003). Where an agreement does not comport with O.C.G.A. § 53-5-25, its validity is governed by the rules applicable to all contracts, including the fundamental rule that only those parties to the agreement are bound by it. Special care must be taken to protect minors or incompetent parties through the appointment of a guardian or guardian ad litem. A judgment or agreement entered without the appointment of a needed guardian ad litem could be void or voidable. Keith v. Byram, 225 Ga. 678, 171 S.E.2d 120 (1969); See Collins v. Collins, 217 Ga. 143, 121 S.E.2d 18 (1961); Brown v. Anderson, 186 Ga. 220, 197 S.E. 761 (1938); Burnett v. Summerlin 110 Ga. 349, 35 S.E. 655 (1900); Freeman v. Covington, 282 Ga. App. 113, 637 S.E.2d 815 (2006). It is important for the parties and mediator to make sure that all interested parties are at the table and properly represented. In Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004) the Court made it clear that there is generally no attorney-client relationship between the heirs of the estate and the attorney retained by the estate administrator. While the estate may or may not ultimately pay the lawyer’s fee, the lawyer’s client is the administrator, not the estate. Heirs or beneficiaries may need separate representation. If a guardian ad litem is necessary to reach a binding resolution, the guardian ad litem should participate in the mediation.

Achieving Success at an Estate Mediation

Getting all of the interested parties to the table so that a final binding resolution of all issues can be reached is critical. Careful consideration of the mechanics of final resolution ahead of time is also essential. The parties and mediator need to consider in advance whether a guardian ad litem needs to be appointed and to participate, whether all necessary parties are at the table and properly represented and whether Court approval under O.C.G.A. § 53-5-25 is contemplated. It may be necessary as part of a mediated agreement to seek reformation, modification or termination of a trust. See O.C.G.A. § 53-12-60 et seq. If a trust is to be affected by a settlement, the relevant trustees should be involved in the mediation and consideration must be given as to how to effectuate any settlement terms that impact an existing trust. The mediator should also attempt to find out as much as possible about the personal dynamics among the parties before the mediation begins so that the mediator can be as prepared as possible to deal with the inevitable emotional component.


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