By Sally D. Babbitt
Like many mediators, I have been through the requisite training to be a court approved mediator in both general civil and domestic relations mediation. And theoretically, I can mediate any type of case. However, as a litigator, I feel that it is a great benefit to have a mediator who is knowledgeable and experienced in my area of work-probate and trust matters.
Contested or litigated probate matters may involve such issues as challenges to the validity of a will or trust, challenges to accountings or fees, interpretation of discretionary provisions in a document, breach of fiduciary, and guardianship and conservatorship proceedings. Challenges often deal with matters of legal capacity or undue influence, so having experience in the symptoms and nuances of these problems is very helpful.
There are several reasons that probate and trust cases are unique from other civil matters and domestic matters. First, unlike most general civil matters (but similar to domestic relations cases) the parties in contested probate matters are typically family members. Understanding the family dynamics is key to being able to resolve the issues at hand. I find that most contested probate matters go "back to the sandbox" so to speak, in that they relate to deep childhood "wrongs" that a party feels has been done them. Figuring out how to get to the root of the issue rather than only dealing with the legal issues take experience and perception.
Procedurally, probate matters are unique in that there are "petitions" as well as "civil actions" brought in the probate court, sometimes on the same matter. Experience and familiarity with Chapter 5 of the Michigan Court Rules is a great advantage to the mediator in understanding what the potential outcomes can be in court, and in creating settlement options that may offer relief not within the scope of the court's remedies. Issues in contested probate matters are often equitable in nature, therefore, money awards don't always solve the problem. For example, sometimes agreeing to have an independent third party serve as fiduciary is the solution, which is outside the parameters of money awards.
Often times the dispute arises as a result of an alleged oral agreement or promise made by a decedent, or another scenario where documentation doesn't exist or has been lost. In these cases, knowledge of contract law is helpful, but knowledge of the Estates and Protected Individuals Code ("EPIC") is even more helpful.
Finally, each county and each judge can bring a completely different perspective to a case which makes probate litigation a more fluid area to practice in. Having a mediator who is experienced with the county and judge that is presiding over the case will help to manage party expectations as well.
While contested probate matters are not as common as cases like family law or employment law, when they do arise, it's helpful to have a mediator who is familiar with these issues to help reach resolution for the parties both emotionally and financially.
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Sally D. Babbitt is an attorney and mediator Of Counsel at Laksy Fifarek in Lansing. She has been helping individuals and families navigate the legal issues of death and incapacity for more than 14 years. For more information, visit www.sallybabbittlaw.com.
Published: Fri, Apr 17, 2015
