What Is Estate Mediation in British Columbia and How Does It Work?

When family members disagree about an estate, someone often suggests mediation. That can feel vague if you have never done it. People want to know who sits in the room, what is said, and what happens if no deal is reached.

This article explains how estate mediation generally works in British Columbia. The details of any session depend on the mediator and the agreement you sign, so treat this as a general guide and confirm specifics with a lawyer.

This article covers the law of British Columbia.

What estate mediation is

Mediation is a negotiation with the help of a neutral third person, the mediator. The mediator does not decide who is right. Their job is to help the people involved understand each other's positions and look for terms they can all accept.

It can be used for many estate problems, such as disagreement over who should act, how assets are divided, how an executor is paid or whether a will adequately provides for a spouse or child.

Mediation sits alongside the court, not in place of it. For example, on application the court may settle the amount of an executor's compensation, even if the estate is not otherwise before the court. That does not apply where the allowance is set by the will itself.

Who usually attends

• The people in dispute, such as the executor and the beneficiaries
• Lawyers for any of them, if they have chosen to be represented
• The mediator
• Sometimes an accountant or other adviser, if numbers are central

Where minor children, or a spouse or child who is mentally incapable, are involved in a wills variation proceeding, the pleading must also be served on the Public Guardian and Trustee. If that applies to you, ask a lawyer how that office's involvement affects any settlement.

How a session generally runs, and what is private

Sessions usually start with an agreement to mediate, then each side explains its view, then the mediator helps the group test options, sometimes speaking with each side separately. If everyone agrees, the terms are usually written down and signed.

Whether what is said in mediation is confidential, and whether an outcome binds you, depends on the mediation agreement and on what you sign. Read that document closely and have a lawyer review it before the session. Do not assume that a discussion cannot be used later.

Timing: deadlines to keep in mind during mediation

Some estate claims have short deadlines. A wills variation proceeding must be commenced within 180 days from the date the grant is issued in British Columbia, or the court must not hear it. A claimant whose claim against the estate is disputed must commence a proceeding within 180 days after notice of the dispute or after the claim falls due. Under the general rule, a court proceeding must not be commenced more than 2 years after the day the claim is discovered, but special rules apply to fraud and trust claims, so the deadline for those depends on your facts and is worth confirming with a lawyer.

In a wills variation proceeding, a copy of the initiating pleading must also generally be served on the executor within 30 days after the 180-day period expires, or the proceeding must not be heard. A lawyer can confirm the exact wording and how it applies to you.

Also remember that an executor must not distribute the estate within 210 days after the grant, except by court order, and after that period the executor may not distribute without court consent if a proceeding is pending to decide who the beneficiaries are, if relief is sought in a wills variation proceeding, or if other proceedings may affect distribution. Ask a lawyer whether a deadline needs protecting while talks continue.

If mediation fails, and what to do next

Failing to reach a deal does not end your options. A person with an interest in the estate may apply to remove or pass over a representative, and the court may do so on grounds that include being unable or unwilling to perform duties in a way that hampers administration. A beneficiary may also seek leave to sue on the estate's behalf where a representative will not pursue estate claims.

If the court removes a representative, it must generally appoint a substitute who consents to act, unless administration is complete or a new appointment is unnecessary. Removal as personal representative does not by itself remove that person as trustee of a trust under the will, which needs separate relief. An executor who wants to step aside after taking out a grant may apply to the court to be discharged.

• Find out every deadline that applies before you agree to a process
• Ask for the mediation agreement in advance and read the privacy terms
• Gather the will, asset information and key correspondence
• Decide what outcome you could accept, and what you could not
• Have a lawyer review any settlement before you sign

Frequently asked questions