Probate disputes and the role of mediation

Specialist probate dispute solicitor, Chris Holten, looks at the key role that mediation can play in resolving probate disputes and contested Will claims.

Probate disputes

Unfortunately the reality of life today is that legal disputes frequently arise between family members in relation to inheritance and Wills. The most common probate disputes include:

1. Disagreements between two executors surrounding the administration of the estate.

2. Disputes concerning the validity of a Will.

3. Claims made under the Inheritance Act 1975. 

Can Mediation help to resolve a probate dispute?

Mediation is a voluntary, confidential and flexible form of 'Alternative Dispute Resolution'. The purpose of mediation is to enable the parties to settle the dispute out of court. Mediation also has the advantage of allowing the parties to retain control of the case with a view to reaching a settlement that they are all comfortable with. It is therefore a very effective means of resolving a probate dispute and one that is considerably cheaper than a conventional trial.

Should mediation be considered in every probate dispute?

Even in the strongest case there is always a possibility that a trial Judge will favour the other side's evidence. Mediation allows the parties to negotiate a settlement, which enables this risk to be managed. And because mediation is also generally much cheaper that going to trial there can be financial advantages in most cases.

What is the role of the mediator in a probate dispute?

The mediator is jointly appointed by all parties involved in the probate dispute and will act impartially in an attempt to settle the conflict, or at least narrow the issues between the parties. The mediator is not there to take on the role of a judge and instead will act neutrally on behalf of all parties.

What are the benefits of mediation in a probate dispute?

The main benefits of mediation are:

• Resolving a deadlocked situation where neither party is prepared to accept the strength of the other side’s argument (or indeed the weakness in their own).

• Providing a significantly cheaper means of resolving a dispute than the cost of attending a trial.

• Confidentiality. This is the cornerstone of mediation. Your case will not be prejudiced by attending mediation as everything that happens there remains confidential.

• The parties can chose a mediator who is best suited to resolve a particular dispute. We work closely with a group of mediators who specialise in contentious probate disputes and can select practitioners who are best equipped to deal with the issues and personalities involved on a case-bycase basis.

 • The risk of losing is significantly reduced at mediation. The point of mediation is to negotiate a settlement.

• It is flexible and can be tailored to suit your particular claim; and your pocket.

• It is voluntary and informal.

• It has an extremely high success rate in resolving probate disputes. Many of our lawyers have a 100% success rate at mediation.

Successfully mediating a settlement in a probate dispute - some case studies

1. We recently represented Mrs K in bringing an Inheritance Act claim against her late husband’s estate. The Defendants initially refused to attend mediation. We felt very strongly that a mediated solution could be reached. Our persistence resulted in the Defendants agreeing to attend mediation prior to trial. At mediation we successfully negotiated a significant settlement in excess of £165,000 on behalf of Mrs K, which included payment of her legal fees.

2. Mrs S wanted to have her aunt’s Will declared invalid on the basis that the beneficiaries had unduly influenced the aunt into amending the terms of her Will in their favour. Unfortunately informal negotiations were not successful and the case looked as though it would have to proceed to trial. however, the Defendants eventually agreed to mediate. The outcome was that Mrs S successfully overturned the Will as a result of the evidence we had obtained and therefore became entitled to a share of the estate.

The court's attitude towards mediation in a probate dispute

Courts place a heavy emphasis upon the parties attempting to resolve disputes through negotiation. Civil Procedure Rule 1.1 requires the parties to resolve the dispute at appropriate cost, which in most circumstances includes attempting mediation. Refusal to mediate frequently leads to the court imposing serious costs sanctions against reluctant parties. In the case of PGF II SA v. OMFS Co 1 Ltd the Court said that a party who doesnt respond to an invitation to mediate will usually be considered unreasonable and costs penalties were applied. In practice this meant that the successful party recovered a higher percentage of their overall costs than they would have done had the other side not refused to mediate. Similarly, in Garritt-Critchley v. Ronnan costs penalties were awarded as a result of a party’s failure to engage in mediation without good reason.  If the parties had engaged in mediation it is extremely likely that the Court would not have applied such severe cost sanctions. It is also likely that the dispute could have been resolved more quickly and above all more cheaply, so those parties who refused to mediate will have suffred serious financial repercussions.

If you would like to know more about the role of mediation in inheritance and contested Will cases then contact specialist probate dispute solicitor Chris Holten for a free initial case review. Call 0808 139 1599 or send an email to info@inheritancedisputes.co.uk