All About Estates

Collaborative Law: Does it Have a Place in the Estate and Trusts World?

At the recent OBA Institute Clare Burns spoke on the topic of collaborative law in resolving estate disputes.  She concluded that collaborative law should be seriously considered for many kinds of estate and trust disputes.

Collaborative law is best known in the family law realm to try to avoid the often polarizing effect of the litigation process in the hope that spouses can still effectively communicate at the end of the process, especially where children are involved.

There are three elements to collaborative law as it is practiced in the family law context: (1) the lawyers and the parties contractually agree not to litigate their dispute, that if they do not settle and chose litigation the original lawyers are not to be involved, that there be a voluntary and free exchange of information and that the parties will respect the shared goals; (2) the parties and counsel construct a process to follow which may include other professionals like accountants and family dynamic specialists; and (3) all legal and professional advice that is given is delivered in the presence of the other party.

Translate that to a typical will challenge file where there is usually a pre-existing sibling conflict or other difficult family dynamics. If collaborative law was used then much of the same elements could be applied, such as engaging a jointly retained medical expert or family dynamic specialist to assist and resolve the family dispute.  If there are accounting issues one accountant could be hired to analyze the financial records and report to the parties saving time, money and the conflict inherent in retaining separate experts.

Lesson Learned: When dealing with a contested estate matters where keeping the family unit or relationship between the parties intact is a goal, collaborative law offers an alternative to be considered.

Until next time,


About Jasmine Sweatman