Wills: The Mediated Family Conference by Norman Pickell

People usually want to avoid a family fight over their estate when they die.

In the past, most people probably included their spouse but excluded other adult members of their family in discussions involving their will. However, today, while the final decision is ultimately yours, you may want to consider including your family in the planning process.

Family members are less likely to challenge your will if you have given them an explanation of the reasons why you want to deal with your assets a certain way and they have had an opportunity to express their opinions about your plan.

By having open discussions with your family members while you are alive, no one will be surprised by what your will says when you die. This will go a long way toward avoiding a family fight over your will.

These open discussions usually work best when you hire an independent mediator to act as the facilitator. Sometimes these meetings are called "family conferences". The goal of these mediated family conferences is to prevent future problems rather than solve an existing dispute.

There may be sensitive topics that need to be raised - at least with the mediator, who can then help the parties decide how best to deal with them.

The mediator is not going to tell you how you are going to plan your will. Instead, the mediator will help everyone deal with the underlying and often unspoken issues that are bothering people but which no one wants to raise.

Most people seem to be good at avoiding issues that may create future conflict by ignoring them in the hope that they will go away - which they rarely do.

The family conference gives you the opportunity to explain your wishes to your family and tell them how you would like to dispose of your assets on your death. Your family members have an opportunity to talk about what they think of your plan.

Parents sometimes make assumptions about what their adult children want. You may think that you have to leave your cottage to all of your children. In reality, maybe some of them don't want it.

A child may have expectations that he or she has not discussed with his or her parents.

If the hidden issues are not addressed, they can become buried mines waiting to explode.

The family conference allows everyone to address the issues involved with your will, including the emotional issues. After there has been a full discussion at the family conference, you may decide to modify your estate plan so that everyone is satisfied.

While a family conference should be mandatory where there is a history of fighting among family members, this type of estate planning mediation can also benefit anyone. It is especially useful if you have a farm or other business, a cottage or children from a previous marriage. You should also consider using a family conference if you intend to make an uneven distribution of your assets among family members or if you want to leave a significant portion of your estate to non-family members. A person who wants to bypass her children and leave the bulk of her estate to her grandchildren or to a charity would be wise to use a mediated family conference.

Mediation can even expand the pie.

Perhaps you have heard the story about the three sisters and the one orange. All three of them wanted the orange. If one gets the orange and other two don't, that is a win-lose situation. If the orange is divided into thirds, that is a compromise. But with the help of a mediator, it is discovered what each sister really wants. One sister wants the orange peel for baking, another wants the juice for drinking and the third wants the seeds for planting. That is a win-win for everyone.

How does a mediated family conference work?

First, with the help of your lawyer, you prepare a draft of your estate plan.

Secondly, you or your lawyer needs to choose a mediator. The mediator must be neutral and must not have been involved in the preparation of your estate plan.

Thirdly, you decide who to invite to the family meeting.

In addition to your spouse, all of your adult children and their spouses should be invited to attend. It is amazing how many spouses of children can cause problems within a family!

Your mediator will help you determine if there are others that should be invited.

The mediator will also help you decide where to hold the family conference. For several reasons, the family home is not a suitable location.

Your mediator will help you prepare the agenda which should allow for the discussion of all of the necessary issues.

At the family conference, to ensure the smooth running of the meeting, the mediator will first describe the process and the goals, including the type of conduct that is expected from all participants during the meeting. The mediator will emphasize the confidential nature of what is being said at the meeting. Then the mediator usually gives a broad overview of the estate plan.

After you have made some brief opening remarks, your lawyer will provide the details of your proposed estate plan and answer questions.

Once everyone understands your proposed estate plan, the mediator will divide all of you into smaller groups. In these smaller groups, people can say things and ask questions that they might feel uncomfortable doing with everyone present. The mediator attends these smaller group sessions to find out what concerns, if any, are being raised.

The mediator then works with everyone to try to resolve all of the problem issues.

At the family conference, you are looking for unanimous consent. It is not good enough to simply satisfy the majority present. It only takes one dissatisfied beneficiary or person who thought he should be a beneficiary to start a lawsuit against your estate.

The mediator keeps everyone focused on the task at hand. Sometimes an agreement will be reached in one meeting. Other times, further meetings will be required.

The key to a successful family conference is to have everyone listen to what each person is saying.

Once everyone agrees to your estate plan, a private family document called a "family constitution" will be prepared and signed. One of the paragraphs in the family constitution will state that none of the parties who sign it will contest your will.

In some families, it may not be possible to obtain the approval of all of the family members who attend. In other families, some who are invited may not attend the family conference.

However, you need to eventually finalize your estate plan, regardless of whether everyone approves. Your mediator will be able to assist you in trying to obtain the eventual approval of all of your family members. If that still does not work, your mediator can suggest ways that you and your lawyer may be able to minimize the risk of a future successful challenge of your will and protect your estate.

After the family constitution has been signed, your lawyer and other professional advisors will prepare the documents and take the steps necessary to implement your estate plan.

This is only an overview of how a mediated family conference works.

If you are interested in reading more about this topic, a friend of mine, Ian Hull, has written an excellent book entitled "Advising Families on Succession Planning: The High Price of Not Talking." In Part 3 of that book, Mr. Hull talks in detail about how the mediated family conference works.

One of the benefits of using mediation in will and estate planning is peace of mind for you, knowing that your family will likely not contest your will or fight among themselves after you die.


Norman Pickell is a mediator and lawyer based in Goderich, Ontario. For more information about wills, mediation or estate planning, please visit his web site at www.normanpickell.com.