Pre-litigation is an activity that occurs before a legal suit is filed. If you are involved in an estate transfer and your rights are unclear, pre-litigation may be an effective way to establish your position and head off a more costly legal conflict.
Pre-litigation claims are typically made in an effort to get the other party to back down or engage in negotiations. This process may be the first step in claiming a will or trust is invalid, challenging a premarital agreement, or charging that an executor is engaged in misconduct.
In a much-publicized conflict over the estate of former “Growing Pains” star Alan Thicke, for example, his sons filed a pre-litigation complaint to enforce their father’s trust, claiming that Thicke’s widow intended to challenge her prenuptial agreement. (Thicke’s widow denied such intent and a judge subsequently dismissed the sons’ claim.)
Because most parties prefer to avoid escalation when possible, pre-litigation can be a useful tool to reach resolution before the time and expense of actual litigation is incurred. Its success, of course, depends on the strength of the claim and the disposition of all parties involved.
If you stand to benefit from a will or trust and sense that a conflict may be brewing, consult a lawyer. Do not wait until the problem has reached a crisis point and litigation is unavoidable. A pre-litigation claim may be a cost-efficient way to establish your rights, find a solution, and avoid the inconvenience and disruption of a courtroom conflict.
Reference: Legal Matters (2018) “Pre-Litigation Claims Can Be Effective in Estate Tax Disputes.”