I want to talk today about a particularly difficult problem which mediators are asked to address, namely disputes over family inheritance.  The reason they are so difficult is that it’s seldom about the money, or at least about money alone.  Underlying many of these disputes are long-held resentments, questions of self-worth, fairness, and questions of the degree of love felt by the deceased.  And so often the deceased’s love for their siblings can only be measured – in the perception of their offspring – by the size of their legacies.

Let us take a hypothetical case

The deceased widow was moderately wealthy, leaving two adult siblings, a boy and a girl.  Both thought they were equally loved by their mother.  The boy had developed a very successful career and was financially comfortable; the girl had stayed at home to look after mother during her long final illness, and was in need of financial support.  So when the will was read, the fairly rich boy was left just a few mementos; the girl was left the rest of the sizeable estate.

Why the imbalance?  No doubt because mother thought her girl needed the money and deserved a reward for all the care given.  But the boy was offended because he thought this showed that Mum didn’t love him as much as his sister, and he suspected that she had put their mother under undue influence to write her will in that way.  And then all the old resentments came out: Mum had always loved the girl more than the boy; she got more presents at Christmas, and so on.  The girl thought it unfair that the boy was allowed to go to university (and even take an MBA in America) when she was already stuck at home looking after Mum.

Well, this is hypothetical, so I can’t tell you the outcome of the mediation, but you can I’m sure appreciate the challenge.  And I have seen these imbalances in several cases.  For example, in a farming case one brother worked on the farm for many years on a modest wage, with an understanding he would inherit the farm.  The other brother worked abroad, and did very well with his own business. On father’s death, the estate was left to the two sons in equal shares, no doubt to demonstrate his equal love for them.  But that left the farming brother with a problem; he had to raise the finance to buy out his wealthy brother’s share of the farm.  You see, even doing the right thing can cause friction.

The grandfather clock

This is one of my early mediations.  Please forgive me if you’ve heard it before, but it is worth repeating.

Brother and sister hated each other with a passion, for good reason.  Sister had left home at 18 to get married and had virtually never returned home to see how Mum was doing.  Brother was stuck at home looking after Mum and working locally as a motor mechanic.  He was Mum’s carer, and was resentful that he couldn’t go out with the lads to the pub, get a girlfriend, have a normal life.

When Mum died he went off the rails, went to Thailand and did all the Gary Glitter things: excessive tattoos, drugs, under-age sex.  He was resentful at missing a normal lad’s life and his sister despised him for his Thailand activities.

When he came home the passions flared up.  He found that his sister had sold Mum’s house (his home) and put all the house contents in storage.  So he had lost his home, and she was having to pay storage charges.  Not good.

I spent a lot of time in caucus with the two of them, allowing the bile to spill out.  The solution was obviously to get the furniture out of storage, so eventually I asked sister if there was anything there which she would like to keep, to remind her of Mum.  “Nothing”, she said emphatically.  Then I asked brother, and he said he would like to keep the family grandfather clock, which he had wound every night after making Mum’s supper.  Sister said he could have it.

This was mediation gold dust; we had found something which one party wanted, and which would cost the other party nothing to give.  After that the siblings agreed that all the other contents could be sold or given to charity, and in no time we had full agreement to how Mum’s money should be divided.  Magic!

The fourth wife

The deceased, a wealthy property developer, was rather fond of the ladies.  He had been married four times, not counting the other female friends.

There were no children involved here, but it was complicated enough.

The problem was that the deceased had written a codicil in favour of his fourth wife, a go-getter whom he married just before going into hospital where he died.  The second wife was still in love with the deceased; they had been in partnership as property developers and she had still not agreed a final shareout of the properties.  But they had agreed that she could take the family mansion, a very valuable property on the Hamble.  And because the property would give her more than a half share of their stock, she had to give the deceased a charge over it.  Now, she had no dependents and could not afford to live there, but there was substantial equity.  So an equity release scheme was ideal, but the charge permitted no later charges.

Both ladies were stuck; wife two couldn’t afford to release her equity and wife four couldn’t wind up the estate and enjoy her inheritance because of the challenge to the codicil.

I spent a considerable time with wife two, who was very old and frail, and eventually a solution was reached: wife four would remove the inferior charge requirement, wife two would get her equity release, and wife two would pay to wife four a discounted figure against the charge.

The moral

I often say that in mediation, the parties need a mediator who is more a social worker than a high-powered lawyer or specialist in the subject.  The key need is for empathy; the mediator must be a warm human being who gains the trust of the parties, and who takes the trouble to listen to their true needs.  That way, a position which the parties can live with may be found.

But with family inheritance disputes, those qualities in the mediator must be there in spades!

June 2023
By Chris Makin