Dying Matters Week – Let’s talk about death and Wills
Diva Shah
The last thing someone usually needs when dealing with the death of a loved one is to face a legal dispute involving members of their family. Further, the prospect of family members in conflict is unlikely to be what anyone wants to happen after they pass away.
Most non-litigators assume that cases are determined by a judge following a hearing, but the majority of disputes are resolved earlier through settlement or alternative dispute resolution (“ADR”). The Civil Procedure Rule Pre-Action Protocols confirm that litigation should be a last resort, and require parties to consider whether ADR might allow them to settle a dispute both before a claim is issued and as the proceedings are ongoing. The most common form of ADR is mediation.
Mediation is a confidential and voluntary process which involves the parties to a dispute appointing a neutral third party, a mediator, to assist them in negotiating a settlement. The mediator is normally a barrister or solicitor who is experienced in the area of law the dispute relates to. The process involves the parties meeting at an agreed location (or virtually) with their legal representatives. Sometimes joint meetings take place between the parties during the day, but that is not necessary and can sometimes be counterproductive where emotions are particularly high, which can be the case in many estate disputes. Usually the parties spend most of the mediation day in separate rooms with their respective legal representatives, and the mediator goes between the rooms to discuss the issues in the case, see whether these may be narrowed, and put forward offers made by the parties. If agreement is reached, this can be made legally binding through a settlement agreement and/or court order where appropriate.
Mediation may allow the parties to be more creative in their proposals and potentially reach an agreement that would not be open to the court to order. For example, in a dispute over interests in estate assets, a court will only be able to direct how assets within the estate should pass, but at mediation, the parties could agree that an asset gifted to one of them during the deceased’s lifetime, which falls outside the estate, should be shared between them as part of a settlement agreement.
It is important not to treat a mediation as a mini trial. If assumptions regarding the other parties can be put aside and a constructive approach taken, in most case it is possible for agreement to be reached. Even where a mediation is not successful as a whole, it may be that some matters can be resolved such that the issues to be determined at trial are reduced, leading to a time and cost saving for the remaining proceedings.
If one party is successful at trial, the victory may feel hollow if the family is still at war. Not every case is suitable for ADR, but when they are, mediation can be a good option and may increase the chances of family relationships recovering if an agreement can be reached. Mediations can also provide a better way of getting closure in private setting with family members.
further information
If you require further information or advice from our team of specialist Contentious Trust and Estate lawyers, please contact or a member of our team, email us or call us on +44 (0)20 7814 1200.
about the author
Anna has extensive litigation experience, acting for both domestic and international clients on complex, multi-jurisdictional, trust and estate disputes. Anna acts for clients bringing and defending claims relating to estates, including disputes regarding the validity of wills, estate administration, and claims under the Inheritance (Provision for Family and Dependants) Act 1975. She regularly advises beneficiaries and trustees regarding allegations of breach of trust, disclosure requests, and the removal of trustees.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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