Inheritance disputes and mediation – key objectives for practitioners

Inheritance disputes are on the rise, and with them bring high price tags, often causing unnecessary distress to those involved.

Many inheritance disputes involve challenges around the validity of the will itself, questions around the trustee’s authority but perhaps most prominently the biggest challenges arise in cases of intestacy. In the absence of proper arrangements there is more room for interpretation when it comes to the wishes of the deceased, and so disputes can occur more frequently.

Mediation in trusts, wills and probate has become a popular method of resolution in the last 18 months due to a rise in intestate Covid-19 deaths, but also due to the quick results mediation can bring. The Centre for Effective Dispute Resolution recently reported that 93% of mediations end in settlement on the day or shortly afterwards. Now the process of mediation is being more widely encouraged across the legal profession.

Robert Buckland, the Justice Secretary, recently launched a call for evidence for ways to settle disputes without the participants having to go through lengthy and costly court cases. With the aim being that individuals, families and businesses use trained mediators to help them resolve their differences.

Lord Wolfson, Justice Minister, said:

“With nearly 30 years of experience as a commercial lawyer, I know the benefits of finding amicable agreements early to help parties move on constructively. Too often the courts aren’t the best means for reaching such outcomes.”

An accessible mediation option is already being tested for divorces, whereby couples receive  taxpayer-funded vouchers to pay for mediation to help agree custody and contact with their children, share out their assets and money, and settle any maintenance arrangements.

So with the route of mediation becoming more popular, practitioners should consider the following key objectives to help them create a successful trusts, wills and probate mediation process.

Firstly an understanding of the full picture of assets to be divided along with the needs of the parties involved is key. Assets can take the form of many tangible items but can also be non-financial and rather represent different meanings to different parties. A good mediation will examine the full estate as well as the emotional needs of the parties involved.

Secondly, legal advisors play an important role in the parties’ understanding of legal rights, interpretations and the alternative of going through the court process, and can therefore help parties assess whether it is better to make a deal or continue with their challenges.

Due to the very nature of trusts, wills and probate disputes, mediators will usually be working with bereaved relatives and are often privy to highly personal behaviour and information. But due to the flexibility of the mediation process all of these issues can be covered more informally than they would at trial and are often invaluable in coming to a settlement agreement.

Finally, many mediators speak of the satisfaction they feel about helping disputing parties come to a resolution. The closure afforded by mediation can not only help to end legal and financial disputes, but can also help parties move on with their lives and perhaps even restore what were previously fraught relationships.

Today's Wills and Probate