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.”
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.
Information about FDRIO, its Estates and Elder Law Section, co-chaired by Ian Hull and myself, and how to join in on discussions like these can be found here: http://www.fdrio.ca.
Thank you for reading,
Nick
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