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Less Law, but More Justice?: Jury Trials and Mediation as Means of Resolving Will Contests

RONALD CHESTER New England School of Law


    In this article, Professor Chester argues that will contests and related family disputes may be particularly amenable to non-legal, as opposed to legal, decision making. He looks first at the compelling empirical evidence of judicial favoritism for will proponents rather than will contestants. Although juries are being used less often than in the past to resolve will contests, Chester notes that, when they are utilized, contestants stand a far better chance of winning than when they appear before a judge.

    In Chester's opinion, the more even-handed approach to will contests shown by juries may stem from their focus primarily on the fairness of the distribution made by the decedent rather than on the legal tests for testamentary capacity, undue influence, and the like. Still, Professor Chester does not view greater use of juries as, by itself, the best way to handle will contests. Looking at more empirical evidence, including that conducted by his own assistants, Chester concludes that mediation is the most effective way of handling what are primarily intra-family disputes.

    The best system, in Chester's view, utilizes routine referral of the dispute to mediation, with the jury trial option available as a backup. In such a system, will proponents would seem to have more incentive to settle since they cannot be nearly so sure of a favorable result if the case goes to trial. The prototype for this approach, which emphasizes non-judicial rather than judicial dispute resolution, currently exists in the Fulton County (Atlanta) Georgia probate court.

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