Are Estate Litigators FDR Professionals?

  • October 13, 2022
  • 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 contexts (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
  • clients typically face some uncertainty, grieving, and cannot move on while the litigation is ongoing.