Mediating Probate Cases to Settlement

Upchurch Watson White & Max
Mediation Group
and the University of Florida
Levin College of Law
Institute for Dispute Resolution
Mediating Probate Cases
to Settlement
are proud to cosponsor today’s Webinar:

Upchurch Watson White & Max Mediation Group
MEDIATING PROBATE CASES
TO SETTLEMENT
MEET OUR PRESENTER MEET OUR MODERATOR
Michael S. Orfinger
morfi@uww-adr.com
Richard B. Lord
rlord@uww-adr.com
2

P R E S E N T E D B Y M I C H A E L S . O R F I N G E R
MEDIATING PROBATE
CASES TO SETTLEMENT

WHY DOES PROBATE LEND
ITSELF TO MEDIATION?
• Both parties are hamstrung in litigation by the
fact that the key witness (i.e. the testator) is
dead. “Dead men tell no tales.”
• There can be no will contest while the testator is
alive. Fla.Stat. s.732.518.
• But the litigation will focus on whether a
testamentary document accurately sets forth
the decedent’s testamentary intent.
Upchurch Watson White & Max Mediation Group 4

WHY ELSE DOES PROBATE
LEND ITSELF TO MEDIATION?
• Fla.Stat. s.733.815 allows interested persons to agree
among themselves to alter the interests, shares or
amounts to which they are entitled under a
testamentary instrument by executing a written
contract to that effect.
• Pierce v. Pierce, 128 So. 3d 204 (Fla. 1st DCA 2013)
(s.733.815 is a legislative embodiment of the
preference for mediation and settlement of
disputes).

THE PROBATE ESTATE IS A
SHRINKING PIE: WHICH IS BETTER?
33% of Pie “A” OR 100% of Pie “B”?

THE ROLE OF EMOTIONS
IN PROBATE LITIGATION
Grief Anger at co-litigant(s)
Betrayal Anger at decedent
Entitlement
7

• The emotions in each room will be different (e.g.
anger v. grief).
• The lawyer’s challenge is to remain “uninfected” by
those emotions and keep the client from
developing unrealistic expectations.
• Mediator’s challenge is to figure out what
combination of emotions are in play in each room.

• In many cases, the grief process has been thwarted
for one or more litigants.
• Exclusion from hospital/home/hospice during last illness.
• Exclusion from the funeral.
• Exclusion from wakes, sitting shiva, etc.
• Exclusion from the family home.
• Deprivation of family keepsakes (e.g. photos).
• A settlement is often necessary to complete the
grieving process.

DEFUSING ENTITLEMENT
• Other than matters like homestead and elective
share, inheritance is not a right. A bequest is a gift.
There is no right to a gift.
• If Mom left everything to the Humane Society, what would
you have to complain about?
• Very often, the client’s motivation to litigate is not
that he/she didn’t inherit, but that the other party
did inherit.
• Why did Mom decide she was more worthy than I?

LIKELY LITIGATION MATCHUPS
• Children vs. children
• Children vs. boyfriend/girlfriend
• Children vs. caretaker
• Children vs. attorney-in-fact
• Children vs. surviving spouse (i.e. stepparent)
• Note the recurring theme of “children”.
• Most likely to have a sense of entitlement?

LIKELY LITIGATION ISSUES
• Lack of testamentary capacity
• Undue influence
• Somewhat less likely litigation issues:
• Proper execution of the will by the testator and witnesses
• Reestablishment of a lost will
• Appropriate funding of a living trust

TESTAMENTARY CAPACITY
• Testator must understand in a general way:
• Nature and extent of property to be disposed of;
• Testator’s relation to those who would naturally benefit from
the will; and
• The practical effect of the will as executed.
• Raimi v. Furlong, 702 So.2d 1273 (Fla. 3rd DCA 1997).
• Testamentary capacity is determined solely by the
decedent’s mental state at the time of execution of
the will.
• Coppock v. Carlson, 547 So.2d 946 (Fla. 3rd DCA 1989).

LACK OF TESTAMENTARY CAPACITY
• There is a strong presumption of testamentary
capacity under Florida law.
• The presumption is so strong “that it allows for a demented
or insane person to execute a valid will during a ‘lucid
interval’”. Raimi v. Furlong, 702 So.2d 1273 (Fla. 3rd DCA
1997).
• A will contestant who bases the opposition on lack
of capacity bears the burden of “proving a
negative”, i.e. that the testator lacked capacity.

LACK OF TESTAMENTARY
CAPACITY VS. UNDUE INFLUENCE
• Which will be easier to prove for the party opposing
admitting the will to probate?
• Undue influence is usually a more promising approach for
the opponent of the will.
• Proof of lack of capacity requires proving a negative to
overcome a strong presumption.
• Proof of undue influence requires proof of a prima facie case
that raises a presumption.
• Evidence of undue influence includes proof of actions of
persons other than the testator.

UNDUE INFLUENCE
• A claim of undue influence effectively concedes
the existence of testamentary capacity, but claims
that the will is the product of:
• “Active procurement” by
• A “substantial beneficiary”, who occupied a
• “Fiduciary or confidential relation” with the testator.

UNDUE INFLUENCE
• The “how-to” guide for undue influence an estate
plan is at www.stealanestate.com.
• Focuses on the ways in which the unscrupulous or greedy
create a “fiduciary or confidential relation”.
• Indicia of “active procurement” creating a
presumption of undue influence are found in In re:
Carpenter’s Estate, 253 So.2d 697 (Fla. 1971).

UNDUE INFLUENCE
• A presumption of undue influence is a presumption
shifting the burden of proof.
• Fla. Stat. §733.107(2); Hack v. Janes, 878 So. 2d 440 (Fla. 5th
DCA 2004).
• Therefore, once the presumption is raised, the
proponent of the will must prove the nonexistence
of undue influence.
• Diaz v. Ashworth, 963 So.2d 731 (Fla. 3rd DCA 2007).

MAKING THE PROBATE
MEDIATION SUCCEED
• Probate mediations tend to take longer than average.
• Start in the morning, not the afternoon.
• Prepare to devote the entire day, and possibly the
evening, to the mediation process.
• Discourage the client from having travel plans on the
same day as the mediation.
• Accept that at least one party will spend a lot of
caucus time venting, because of faith in his/her
position and a feeling of powerlessness.

LAWYERS AND MEDIATORS BEWARE!
• Pierce v. Pierce, 128 So.3d 204 (Fla. 1st DCA 2013).
• Probate mediation took all day on a Friday. Appellee
asked to take the proposed agreement home for the
weekend to review before signing. She ultimately signed it
without taking it home. She immediately sought to rescind.
• Trial court rescinded the agreement, holding appellee
didn’t freely, knowingly and intelligently enter into it.
• First DCA reversed. “That appellee may have been
fatigued and distressed by the labor, and later suffered
second thoughts, these facts, without more, do not provide
grounds for setting aside an otherwise valid agreement.”
7/30/2014
Upchurch Watson White & Max
Mediation Group

MAKING THE PROBATE
MEDIATION SUCCEED
• Let your client vent, but only in private caucus.
Venting is cathartic, and is part of the grieving
process.
• Allow your client to provide the mediator with
as much insight as possible into the opposing
party (work history, education, relationship while
growing up, what motivates him/her).
• What motivates your client?
• Money, sentiment, regret, vindication?

MAKING THE PROBATE
MEDIATION SUCCEED
• Venting helps the mediator “categorize” the clients,
which dictates the approach to take with them:
• Category 1: Those who want to settle.
• Category 2: Those who do not want to settle.
• Category 3: Those who affirmatively want NOT to settle.
22Upchurch Watson White & Max Mediation Group

MAKING THE PROBATE
MEDIATION SUCCEED
• Category 1: Recognizes the economic utility of
settlement; understands the emotional utility of
looking forward rather than backward.
• Category 2: May see little merit in adversary’s
position; may view it as extortion against the estate.
May still be willing to settle if the economics of
settling justify it, and allow it to be viewed as a
“win”.

MAKING THE PROBATE
MEDIATION SUCCEED
• Category 3: Settlement doesn’t compensate for the
intangible benefit this party gets from continuing to
litigate. Primary motivation is “schadenfreude” –
pleasure derived from the troubles of others.
• “If I’m not getting it, then neither are you!” (Translation:
That means the lawyers are getting it.)
• How should the attorney react to litigation motivated by
spite?
• Inquire of the party how the decedent might react to
his/her tactics (“How would your Dad handle this?”)

MAKING THE PROBATE
MEDIATION SUCCEED
• Repeatedly reinforce to your client the fact that the
settlement pie is shrinking.
• Shows that the pie at trial will be smaller yet.
• This allows the client to fully analyze the risks and benefits of
settling for a fixed sum versus a percentage of the estate.
• Be candid about the probabilities of prevailing in
court, and what a “win” would really mean in
financial terms.

WHAT ABOUT REAL ESTATE?
• A devise of real estate presents multiple issues:
• Valuation is uncertain and prone to fluctuate.
• Adversary parties may find themselves as tenants in
common, which may lead to a partition action later.
• Carrying costs must be shared by all.
• Can anyone afford to buy anyone out?

MEDIATING THE DISPOSITION
OF REAL ESTATE
• “I cut, you choose”.
• One party picks a price at which he is willing either to sell his
interest in the property or buy the other party’s interest. The
other party decides whether to be buyer or seller at that
pre-determined price.
• Can be done in multiple rounds or a single “Russian Roulette”
round.
• Advantage: Inherently requires the party submitting the price to
be fair.
• Caveat: Assumes that both parties are willing and able to either
buy or sell.

SINGLE BID
REVERSE DUTCH AUCTION
• Each party submits one sealed bid to the mediator,
with the price at which she is willing to either buy
the other party’s interest in the property or sell her
own.
• High bidder is the “winner”, and purchases at the
price set by the low bidder.
• Advantage: Encourages high bidding, therefore
maximizing value of the property. Good tactic in a soft real
estate market.

CONCLUSION
• Remind the client about the financial and
emotional benefits of settlement.
• Little things mean a lot. Offer photos, keepsakes,
etc. Your client may receive more in financial value
in exchange.
• Be patient. Settling probate litigation requires
emotional fortitude by the client, and in some ways
marks the end of the client’s relationship with the
decedent.

Michael S. Orfinger
MEDIATING PROBATE CASES
TO SETTLEMENT
30
For related information about
this topic, please see Mr.
Orfinger’s article in Alternatives
to the High Cost of Litigation
(CPR’s newsletter) at this link:
bit.ly/probate_orfinger

THANK YOU FOR JOINING US!
Michael S. Orfinger
Principal
morfi@uww-adr.com
800-264-2622
Richard Lord
Shareholder
rlord@uww-adr.com
800-264-2622
MEDIATING
PROBATE CASES
TO SETTLEMENT
Florida Bar Course
#1405077N
1.5 Hours CLE
1.0 Certification
Elder Law
Marital & Family Law
Wills/Trusts/Estates
~
Please email
cklasne@uww-adr.com
with questions.
uww-adr.com
www.law.ufl.edu/idr
Robin Davis, Director
davisr@law.ufl.edu

Mediating Probate Cases to Settlement

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