Alternative Dispute Resolution

Alternative dispute resolution is a method used to find solutions to legal problems before going to court. It involves the engagement of a third party who assists the conflicting parties to solve their issues out of court. ADR is common especially with civil cases because it ensures confidentiality and it is less expensive compared to litigation (Astor & Chinkin, 2006). It allows the disputing parties to come to a consensus, therefore increasing the likelihood of a win-win decision.

One of the ways in which the disputes in this case can be solved is by respecting the will that Lisa had written. A will is a legally binding document that states the desires of the deceased therefore its significance should be respected. In the will, Lisa named Andrea and Steven as joint executors to her estate and wanted them to divide it equally between themselves. Thus, Andrea and Steven should agree to honor their mother’s wishes and divide the entire estate valued at $690,000 into two, which would mean that each of them is entitled to $345,000. This option is recommended because it respects the deceased’s wishes and is the simplest resolution to the issue.

The settlement may however be disputed by Richard who claims to have been treated badly by the deceased as a child and has been affected by it his whole life. This gives him a strong position to contest the settlement and make a claim (Fisher & Brandon, 2002). The second way would be to dismiss Richard’s claims because he has been absent long enough to be considered dead. Richard left home when he was already eighteen, therefore he was legally an adult and capable of being held responsible for the choices he made. After he left home, he did not initiate any communication with the family for several years, therefore they concluded that he was dead.

Legally, a person can be declared dead if they have been missing or absent from their residence for more than seven years. Therefore, the fact that Richard had been absent for 36 years means that he had been considered dead both by the family and the law. He is therefore not entitled to the deceased’s property. This solution is of benefit to Andrea and Steven because they have a larger portion to divide between themselves. For Richard, this solution is disadvantageous because he has suffered greatly all his life because of growing up in a hostile environment. Legally, he is in a strong position to make a claim.

The third option, though unreasonable, would be to consider Andrea, who, during the last four years, had been a full-time caregiver for her mother. Therefore, she should be given the legal ownership of the house and $40,000 compensation. Legally, the individual contribution that a person made to the deceased’s life puts them in a stronger position during a will dispute. Andrea contributed four years of her life to caring for her invalid mother. She should also be considered because she is 51, single and does not have a job or a house of her own. Andrea would be the sole-beneficiary of this decision because she would get a very large fraction of the deceased’s estate, while Richard and Steven share the rest between themselves.

The deceased wanted each of her children to inherit an equal share of her property; therefore, the dispute can be resolved by dividing the entire estate equally among the three children of the deceased (Fisher & Brandon, 2002). Thus, they will each be entitled to $230,000 given that the entire estate is valued at $690,000. This resolution, though impractical, may be the simplest and best since each of the claimants gets an equal share; none is given more consideration than the other is. It is impractical because Richard has been away for 36 years and does not deserve to an equal share of the deceased’s estate. First, his disappearance must have caused the family a lot of mental anguish; therefore, it was an inconsiderate action on his part. Secondly, his absence was interpreted to mean that he had died, thus explaining why he was not included in the will. Thirdly, he had not made any substantial contribution to the deceased’s life, therefore had no right to inherit an equal share of her estate.

The other option would be to give Richard more than one third of the estate. This is because he had a troubled and abusive childhood, hence his decision to leave home at eighteen. Secondly, he is in dire financial need because he is unable to sustain employment due to his alcohol dependence. His alcohol dependence stems from his troubled childhood; he was mistreated by both parents. Therefore, it may be argued that he deserves to be compensated for his suffering; throughout childhood and adulthood (Astor & Chinkin, 2006). This option is however unreasonable because his absence has been too long for him to be considered worth inheriting such a large proportion of the estate.

The Lisa’s children may refuse to come to a consensus, each stubbornly refusing to compromise. Therefore, a situation may be created whereby none of them benefits from the deceased’s estate; instead, it is all donated to charitable causes. This solution is impractical, because it fails to arrive at a solution that will be of benefit to the parties that are relevant to the dispute. It is advantageous because it reduces the amount of time and money that is spent by the parties (Astor & Chinkin, 2006). It is disadvantageous to Steven and Andrea, because they lose their inheritance and to Richard because he is not compensated for his childhood and adulthood suffering.

The will dispute may also be solved by transferring the ownership of the deceased’s estate to her grandchildren. By the time of her death, the deceased had four grandchildren, who are all in university. Therefore, since Lisa’s children are unable to reach a consensus over the division of her estate, the estate should be divided equally among her grandchildren. This solution would be practical if Steven, Andrea and Richard refuse to reach a consensus.

Granted, each of the deceased’s children holds a strong case as to why they are entitled to a share of the deceased’s property. Therefore, the recommendable solution would be to find a basis upon which the estate will be divided among them. Andrea argues that she was a full time caregiver for her mother for four years where she was an invalid. Legally, the individual who made the highest contribution to the deceased’s life while they were alive is entitled to a relatively larger share of the deceased’s estate (Fisher & Brandon, 2002). Andrea therefore deserves reasonable compensation for the four years she contributed towards caring for her mother.

Steven is also legally entitled to the deceased’s estate as the will stipulates. He has four children who are attending university, a substantial mortgage and business debt; he is therefore in a strong position to oppose Andrea’s claims for the house and $40,000 compensation for playing the role of the deceased’s caregiver. Richard has been absent for 36 years and has returned to make a claim on the deceased’s estate. He claims to have been affected by the way he was treated by his parents as a child; he is unable to hold a job and is an alcoholic. He is therefore also in a strong position to make a claim because of his dire financial situation and the suffering the deceased caused him in his childhood. However, he has been absent for a long time, during which he was thought to be dead. He therefore is not entitled to one third of the deceased’s estate.

Hence, the estate is divided into three; the largest asset is the home, which is valued at $540,000. It should be sold now, or at an agreed future time and the returns divided equally between Andrea and Steven. The rest of the estate, whose total value is $150,000, should be divided between Andrea, Steven and Richard in the following manner; Andrea should get two thirds of the returns as compensation for care giving. The remaining one third should be shared equally between Steven and Richard, with each getting a sixth of the portion.

References

Astor, H., & Chinkin, C. (2006). Dispute Resolution in Australia.Sydney: LexisNexis Butterworths.

Fisher, L., & Brandon, M. (2002). Mediating with Families, Making the Difference. Sydney: Pearson Education.