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Posted by: Christy Gibson on Jul 5, 2012

Submitted by John Blankenship


The Dispute:


There are competing wills in a will contest case.  The first will in 1998 bequeaths one half of the estate to the Testatrix’ surviving siblings and one half to the surviving siblings of her deceased husband.    A 2006 will omits the siblings of husband and instead bequeaths one half of the estate to Testatrix’ surviving siblings and one half to her niece, the daughter of a deceased sister of the Testatrix.   In 2009, the Testatrix prepared and executed a hand written codicil to the first will which appears, imprecisely, to have republished the 1998 will, thus creating the contest between the two wills.   The court orders Rule 31 mediation.  Consider the following:


              1.         The 2006 will was written by a lawyer who is the husband of the niece who stands to inherit one half of the estate.  The niece had been caring for her aunt, the Testatrix, and handling her affairs under a power of attorney that the Testatrix executed in 2005, and she drove her aunt to the husband/lawyer’s office where the 2006 will was executed.   This same lawyer is representing both the Testatrix’ siblings (a brother and sister who are both old and infirm and of questionable competence) and his wife, the niece in the will contest and in the mediation.

2.         The mediator believes the lawyer has multiple conflicts of interest.

3.         Accordingly, what ethical issues, decisions, conduct/protocol questions does the mediator face?

              4.         What provisions of Rule 31 come into play?

              5.         How should the mediator proceed?

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