Ellie Hands, a member of our inheritance team, offers guidance on how to resolve a probate dispute.
When people think of a probate dispute images of judges and courtrooms readily spring to mind. But in reality very few disputes find their way to court. The vast majority are settled way before they reach that point.
One of the main reasons for this is money. Court actions are expensive. Parties to a dispute are therefore financially incentivised to find solutions. And they are encouraged to do so by our legal system which recognises the benefits of early resolution.
For years, engagement in Non-Court Dispute Resolution (NCDR) was encouraged, but was always purely voluntary. However, since October 2024, the courts in England and Wales have expected NCDR participation in probate disputes.
The Civil Procedure Rules (CPRs) establish the framework for litigation in England and Wales and have long required courts and solicitors to encourage the use of NCDR where possible. The Pre-Action Protocols also expect parties to seek resolution before starting formal proceedings.
The case of Churchill v Merthyr Tydfil County Borough Council [2023] significantly enhanced this obligation by confirming that courts have the authority to compel parties to engage in NCDR by issuing an Order requiring parties participate and putting proceedings on hold to allow time for NCDR to take place.
In October 2024 the CPR was amended to explicitly extend this principle to probate disputes. The courts in England and Wales have the power to impose legal costs sanctions on parties who fail to engage in non-court dispute resolution processes in cases brought under the Trusts of Land and Appointment of Trustees Act 1996 and the Inheritance (Provision for Family and Dependants) Act 1975. Parties who adopt an avoidant approach may face the prospect of paying their opponent’s legal expenses, while losing the opportunity to recover their own.
The benefits of NCDR are clear. It offers a practical and cost-efficient alternative for dispute resolution, allowing parties to avoid the stress, delays, publicity, and above all, the considerable expense associated with traditional court-based litigation. It also provides greater flexibility in terms of settlement, including the potential for reaching a resolution without direct interaction with the opposing party.
The most common form of NCDR is mediation, and we have an excellent record of achieving successful outcomes for our clients at mediation.
It is important to bear in mind that these powers do not compel parties to settle through mediation. They simply empower judges to suggest it as a viable option when they believe settlement discussions could result in more innovative and cost-effective solutions, as opposed to the rigid outcomes of trial. Parties still retain the right to pursue the case through the court process, including trial, if mediation does not result in an agreement.
If you would like us to arrange for your case to be mediated, or you require further guidance on how to resolve a probate dispute then please contact our free legal helpline for a review of your case and details of the funding options available, including No Win, No Fee.
Call 0333 888 0407 for a chat, or send an email to us at [email protected]