Mediation of Contentious Probate Disputes

Mediation is ideally appropriate to resolving contentious probate, contested Wills and inheritance disputes. Family members are frequently nevertheless grieving and Court proceedings will often cause rifts between parents and children and excursion a wedge between siblings. This article considers the suitability of mediation in contentious probate claims and provides tips for improving the chance of settlement.

Contentious Probate and Mediation

Many different types of contentious probate disputes can arise. These can include disagreements concerning:

  • without of testamentary capacity
  • without of testamentary intention
  • without of knowledge and approval
  • without of due execution
  • undue influence
  • fraud and forgery
  • revocation
  • construction or interpretation of a Will
  • a failure to make adequate financial provision
  • disputes during the administration of estates

In mediation the parties to a argument sit down with a trained, neutral third person (the mediator). A settlement is reached only if all of the parties agree to it.

Mediation permits a Claimant to sit in the same room as the other parties (often friends and relatives of the deceased, and perhaps also charitable beneficiaries). Mediation allows parties to fully air their grievances whilst trying to preserve family relationships, and can hasten settlement.

The Association of Contentious Trust and Probate Specialists (ACTAPS) Code for the resolution of trust and probate disputes endorses the use of mediation at an early state. Whilst the Code is voluntary, it is held in high regard by Judges and the Courts.

Mediation has many advantages over Court hearings:

  • costs – mediation is usually less expensive than going to Court;
  • speed – mediations can be arranged within days, in contrast to litigation;
  • mutually satisfactory outcomes – parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed upon them;
  • confidentiality – the mediation is secret and unlike the Court course of action, there is no public record;
  • comprehensive and customised agreements – mediated settlements are able to address both legal and additional-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily prone to legal determination;
  • preservation of a continuing relationship – a mediated settlement can often preserve a working relationship in ways that are not possible in the win/lose scenario of Court litigation; and
  • control – mediation is an thoroughly voluntary course of action. The parties are in control of the outcome.

The mediation may be the first event that a party’s barrister may meet his or her client. This will allow the solicitor and/or barrister an opportunity to estimate how the party, and any other attending witnesses, may perform at trial if the claim does not settle. It also gives the party an opportunity to consider how their solicitor/barrister performs.

Claimants can expect:

1. To be asked whether they would like a joint opening session, whereby all of the parties, and their lawyers, meet with the mediator;

2. the time of action to take time with low offers at first.

3. To have to compromise;

4. To hear unfamiliar legal terms during the mediation. A party’s lawyer may wish to discuss this with their client prior to the mediation;

5. A Defendant may want to settle the whole claim, including costs at the mediation; and

6. If the argument doesn’t settle at the mediation, or shortly afterwards, the matter is likely to reach a trial.

Good preparation can increase the chances of a settlement being reached at the mediation. Such preparation includes:

  • deciding what disclosure will be required;
  • considering if additional evidence will be needed;
  • undertaking a detailed risk examination of the matter;
  • deciding whether a barrister is needed and if so, whether he or she should attend the mediation;
  • discussing with the Claimant what he or she would like to say, if anything;
  • considering who should attend with the Claimant. for example, if family members are involved in the decision-making course of action, will they also be attending?;
  • considering the agreement to mediate;
  • preparing a position statement. Mark the position paper ‘For the purposes of mediation only. Without Prejudice and secret.’ Remember that a position paper is not the same as a Court skeleton argument and considering whether a further document should be prepared for the mediator’s eyes only;
  • considering the contents of any mediation bundle;
  • preparing a draft settlement agreement/Consent Order/Tomlin Order; and
  • preparing details of the costs.

Leave a Reply