Mediation is ideally suited to resolving contentious probate, contested Wills and inheritance disputes. Family members are frequently still grieving and Court proceedings will often cause rifts between parents and children and drive 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:

  • lack of testamentary capacity
  • lack of testamentary intention
  • lack of knowledge and approval
  • lack 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 dispute 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 confidential and unlike the Court process, there is no public record;
  • comprehensive and customised agreements – mediated settlements are able to address both legal and extra-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible 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 entirely voluntary process. The parties are in control of the outcome.

The mediation may be the first occasion that a party’s barrister may meet his or her client. This will allow the solicitor and/or barrister an opportunity to assess 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 process 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 dispute 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 analysis 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 instance, if family members are involved in the decision-making process, 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 Confidential.’ 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.