ADR: An advantageous way to settle probate disputes for all parties
In this article, Jonathan Gilbert, contested probate specialist at Barnet-based law firm MHHP Law, takes you through the different options available if you find yourself in a dispute following the death of a client’s relative or loved one.
Probate can be disputed for a number of reasons. For example, the deceased’s will may be invalid, the estate might not have been administered properly, the executor of the will may have failed in their duties, or the client may not have been properly provided for in the will.
Furthermore, according to a YouGov survey carried out for the Legal Services Consumer Panel Tracker Survey 2015, only 38% of the public in England and Wales had a will last year. Therefore, this means that a lot of people currently will die ‘intestate’ – without leaving a will. Therefore, while the laws of inheritance are very clear if the deceased is married, in a civil partnership or has living children or grandchildren, a person dying intestate where the inheritance lines are less clear opens up the possibility of further disputes.
However, the death of someone close can be extremely stressful for their family and loved ones. Therefore, it makes sense to try and settle the matter in as amicable a manner as possible. Thankfully, there are a number of options available to you when trying to achieve the best possible outcome for your client.
In all cases, Alternative Dispute Resolution (ADR) should be considered. Mediation, in particular, is a very good and effective way to resolve a probate dispute. I say this, as mediation is much less stressful for all involved than going to court, particularly the bereaved.
Firstly, mediation is much less formal than court proceedings and the mediator will always look to set a non-adversarial tone in the meetings. In fact, I’ve met other solicitors who’ve told me stories of the mediator insisting on each side starting the mediation sessions with a joke or handshakes all around in order to emphasise the difference between mediation and court procedure.
Furthermore, in court, it is the solicitor or barrister doing the talking, whereas mediation gives the bereaved parties the opportunity to talk to each other and express their own views with the support of their representative. This means that each side often feels more in control of the end settlement as they have played an active part in coming to that decision. The bereaved talking for themselves and having to come to an agreement between themselves also often means that all sides leave the process feeling satisfied as everyone goes away with some part of the estate. This is unlike court proceedings where the decision is taken out of the parties’ hands and into the hands of a judge, who may leave one or a number of the parties in dispute with nothing at all.
If the parties can’t reach an agreement through mediation, another ADR option is arbitration. This, again, is a better option for many than court proceedings, as arbitrators again try to maintain a less formal and less adversarial atmosphere. However, the potential downsides for the parties are that the arguments are made for them by the solicitors, it is the arbitrator who makes the final decision and the arbitrator’s decision is legally binding. While this may be advantageous for those who have the literal interpretation of the law on their side, those whose arguments are reliant on the spirit of the law may not have such luck.
With either of these ADR options, it should be made clear to the client that resolution will incur a cost that will be taken from the estate. However, the advantage of using ADR for the client is that it is likely to cost much less than court proceedings. ADR will typically take much less time than court proceedings as well, and it should also be made clear to clients who are lodging a probate dispute that, if some form of alternative resolution isn’t reached, it will normally take between 12 to 18 months to reach a trial from when the court proceedings were issued. In that time, the costs will begin to accrue, all the time depleting the value of the estate.
While court proceedings arguably are advantageous for the billings of you and your firm, I would always advocate promoting ADR to your clients who are in a probate dispute. Think of it this way; we now live in a society where anyone can voice their opinion online and via social media, and this is as true for legal firms as it is for hotels and restaurants. Therefore, if you do everything you can to get your client the best possible outcome at a reasonable cost and in a timely fashion, that will be reflected in what they say about you to their friends and family and online. Therefore, when other people then come to research legal firms when they need help with their probate dispute, they will hear and see nothing but good things about you. If your client is one of the 62% of the public in the UK who don’t have a will, they’ll also be much more likely to give you some extra business by asking you to draw up their will too.