Mediation of Estate Issues

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Mediation of Estate Issues

Mediation of Estate Issues by Deborah E. Kaminetzky

Earlier this month, I had the pleasure of attending a continuing education class on the use of mediation in Estate cases. Having been drafting estate plans for years and also being an experienced divorce mediator, I pondered whether mediation might be preferable to litigation in situations where a will contest is imminent. After attending the class, I now know that not only is mediation preferable, the New York State office of court administration is beginning pilot programs for people to try mediation as a way to settle their disputes. It was stressed that the public needs to be educated on the benefits of mediation which are, self determination, lower cost and the preservation of family relationships.

I asked a question of the presenters as to whether adding a mediation clause into the will would be effective. In other words, should a beneficiary file an action when there is a mediation clause, would the court recognize that the testator’s wishes were that the beneficiaries get along and had wanted them to try mediation prior to filing a court action. The answer was a resounding yes!

There are a number of reasons to include such a clause in the will. When leaving unequal amounts to your beneficiaries in the past an interrorum clause was usually the only way to go. Although such a clause can still be part of your will, the mediation clause may help the beneficiaries not only get along better, but also divide the estate according to what they feel is fair. For instance, sometimes there are unforeseen circumstances where the beneficiaries own status changes such as divorce, illness or loss of a job. The beneficiaries may know that the testator based their decision on facts which have changed and perhaps they would have updated the will had they been able.

Another reason to attempt to settle the dispute using mediation rather than filing a will contest is that the estate assets won’t be wasted on a legal battle. 1404 Examinations (depositions), attorneys and time spent in court can prove costly and everyone will have to pay more.

Lastly, mediation usually provides a faster resolution so that everyone can move on, hopefully on good speaking terms!

Deborah E. Kaminetzky


Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

By | 2019-05-14T21:07:11+00:00 June 28th, 2018|Estate Planning, Mediation|Comments Off on Mediation of Estate Issues

About the Author:

Deborah E. Kaminetzky
Deborah E. Kaminetzky is the founder of Kaminetzky Law & Mediation, P.C. located in Long Beach, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Chair of the General, Solo and Practice Management Committee and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012 and Leadership award honoree in 2019. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.