Are Estate Litigators FDR Professionals?

Author:  Nick Esterbauer, Hull & Hull LLP

When friends or relatives ask me what “estate litigation” is, the description that most frequently comes to mind is that estate litigators try to help our clients after the death of a loved one when there is some sort of problem.  While the way estate litigators describe our work may vary, the words “death” and “family” are both likely to be included in the explanation.  At times, we also hear our work described as “family law for dead people.”

Attributes Common to Family and Estate Law

The truth is that family law and estate law share a number of common features, including:

  • the dispute often involves parties who are related to one another (whether by marriage or by blood);
  • strong emotions are often at play, as clients are typically experiencing one of the most traumatic times of their lives (whether a separation/divorce or death of a loved one);
  • as a result of the traumatic incident, there is often a breakdown or other change in the family unit;
  • the provisions of the Family Law Act may be relevant, with similar rights to net family property afforded to married spouses;
  • we see claims for support in both context (whether spousal support, child support, or dependant’s support);
  • the client’s wellbeing may be dependent on the outcome of the dispute, with claims relating to their homes and other property;
  • proper planning can help avoid disputes, but this cannot be guaranteed (for example, a cohabitation and marriage agreements, or wills and will supplements);
  • many claims, however they may be particularized, are grounded in the doctrine of unjust enrichment; and
  • client’s typically face some uncertainty, grieving, and cannot move on while the litigation is ongoing.

Thankfully to those involved in estate litigation, matters are often resolved through alternative dispute resolution.  In Toronto, for example, where mediation is mandatory for all estates disputes, many of our matters settle during (or at least benefit from) the mediation process.

Through my involvement with the Family Dispute Resolution Institute of Ontario (FDRIO), I regularly speak with colleagues who are members of the Family Law Bar, family mediators, and other family dispute resolution (FDR) professionals whose work is focused on resolving family disputes.  It is increasingly evident that, with so many common features between estates and family law and the focus of many of our files resolving the dispute and allowing clients to move on with their lives (and, where possible, preserving a relationship with the other parties to the dispute) we deal with similar issues from different perspectives.  It can be helpful sharing our experiences and gaining fresh insight into some of the motivating factors behind the litigation we are involved with and hear of alternative strategies for resolving family disputes.

Estate Litigation Mediation as a Form of FDR and its Benefits

In Toronto, we are fortunate to see the benefits of mandatory mediation of estate disputes pursuant to Rule 75.1 of the Rules of Civil Procedure.

I recently came across a list of the top “5 Benefits of Mediation for Family Law Resolution”, written by The Honourable Sherry Klein Heitler, a retired New York judge and mediator.  Given the similarities between FDR and the resolution of estate disputes, I thought that it would be worthwhile to review these benefits and consider them within the context of estate litigation, in which they remain highly relevant:

1.     Cost Savings

Family Law:    The costs of matrimonial proceedings can see the parties deplete their life savings.

Estates:           Estate litigation can be incredibly expensive, with costs paid from the assets of an estate or by the parties personally.  Even when costs may be paid from the assets of an estate, the parties involved are often beneficiaries whose interests are indirectly depleted by the costs of litigation.  While, traditionally, it was more likely than not that the estate itself would ultimately fund litigation expenses, estate litigation has more recently adopted the “loser-pays” model, with risk of significant adverse costs consequences to unsuccessful participants in estate litigation.  Avoiding the costs and risk associated with continued litigation are a key benefit of a mediated settlement of an estate dispute. 

2.     Flexibility

Family Law:    Parties to family law proceedings may have limited (if any) input as to the scheduling of a trial or other court dates and the manner in which the matter is heard.  The decision-maker cannot normally be selected by the parties, whereas a mutually-agreeable mediator can be engaged as part of the FDR process.

Estates:           Mediation allows the parties to assume control over the dispute resolution process as well as the outcome of a matter, being able to fashion a result that may not be possible at trial.  For example, the parties to a will challenge can agree to the distribution of assets in a manner other than that provided under any testamentary document left by the deceased.

3.     Time Savings and Continuity

Family Law:    Trials can be painful, lasting weeks and significantly impacting a party’s finances, work, mental health, and relationships.  Mediation may assist in the resolution of a dispute in less time and at an earlier stage.

Estates:           Estate litigation can last years, during which grieving may be prolonged and a family’s ability to move on with their lives is hindered.  Mediating early on in the process, after sufficient information is made available to facilitate productive settlement discussions, can assist surviving family members to resolve problems and begin to heal.

4.     Privacy

Family Law:    The time surrounding a couple’s separation and/or divorce is incredibly stressful.  Mediation provides an opportunity to deal with matters privately and can be less stressful relative to the courtroom experience.

Estates:           A death in the family is another stressful life event.  Estate litigation can see a family’s “dirty laundry” made public, including disclosure of personal and/or financial information that most of us would like to keep private.  There must be compelling reasons for a file on the Estates List to be “sealed” such that its contents are not publicly accessible.  What is discussed at mediation, including settlement terms and figures, typically remains strictly confidential and is not disclosed outside of the process except as necessary to give effect to them. 

5.     Long-Term Results

Family Law:    Twelve-year follow-up data suggests that mediation facilitates the involvement of both parents in a child’s life after proceedings end when compared to traditional litigation.  Each party has a story to tell and has an opportunity to do so during mediation. 

Estates:           Mediation may offer greater potential of continuing or repairing family relationships than proceeding to trial.  Collaborative ADR processes also offer anticipatory problem-solving of issues not only relevant now but those anticipated down the road involving the same family members. 

Continuing the Discussion

Information about FDRIO, its Estates and Elder Law Section, co-chaired by Ian Hull and myself, and how to join in on discussions about how we can all learn from one another to assist in the resolution of disputes involving family members can be found through the FDRIO website: https://fdrio.ca.

Nick is a Partner at Hull & Hull LLP, where he has practiced exclusively in the areas of estates, capacity and guardianship, and trust litigation since 2014.  Nick is a member of FDRIO’s Board of Directors, its Webinar Coordinator, and Co-Chair of its Estates and Elder Law Section.  Please contact Nick to register for our next Estates and Elder Law Section meeting taking place on October 5, at 4:30 p.m.


Email: nesterbauer@hullandhull.com

Tel: (416) 640-4818