How long does resolving an estate dispute take: mediation vs court
There’s nothing worse than losing someone close to you.
When you’re still grieving, arranging for their estate to be wound up can be a difficult task for all involved, and sometimes conflicts can arise.
If an eligible person believes they haven’t been provided with adequate provision for proper maintenance and support, or suspects that the deceased was coerced or manipulated when writing their will, they have the option to move forward with a claim against the estate.
Whether you’re in this position, or as the appointed executor of the deceased’s estate you are responsible for defending the will against any claims, there can be some uncertainty around what this process involves. It’s not every day that you’re involved in an estate dispute, and it might even be your first time in this position.
What can you expect moving forward, and more specifically, how long will it likely take for you and all those involved to reach an agreement?
An estate lawyer can answer all of these questions, while also providing you with a good indication of how much merit your case holds, based on their experience and expertise in the area. In a time that can be overwhelming and confusing, this brings some clarity to your circumstances and is often a great place to start.
In the following article though, we’re detailing the types of factors that commonly influence the length of a case, and how they do this. More specifically, if your Will dispute can be resolved during mediation, or if it needs to be taken to court, which is historically a lengthier process.
What are the reasons behind an estate dispute?
There are a few common reasons why estate disputes occur. Whether a person expected to have inherited a greater share or didn’t think they would be left out of a Will altogether, or they believe the testator was manipulated, their hands aren’t completely tied.
Contesting the Will
Also known as making a family provision claim, an individual can contest a Will if they believe the deceased didn’t provide them with adequate provision for proper maintenance and support.
In these cases, the Court considers:
- If the testator had a moral duty to provide for the claimant;
- Whether the claimant has already received adequate provision from the estate;
- If the claimant is able to provide for themselves;
- The impact a change in the distribution of assets would have on other beneficiaries of the Will.
Challenging the Will
When a Will is challenged, the claimant argues that the Will is invalid because the testator lacked testamentary capacity or was under undue influence when writing their Will. If their claim is successful, the deceased’s Will isn’t legally binding, and estate assets are distributed in accordance with intestacy laws.
For those in Victoria, if you’re making a claim, regardless of which approach you take, you have strictly six months from the date probate is granted to lodge your claim against the estate. While there can be exceptions, this rarely happens, and is only made possible in a unique few cases. If you believe you have a viable case, your best option is to act quickly and seek out legal advice before this six month window has closed.
Resolving estate disputes: mediation vs court
An estate dispute doesn’t always need to be taken to court for all of the involved parties to reach a resolution. At Hentys, we’ve found the vast majority of cases can be negotiated and settled through mediation instead.
Option 1: Mediation
More than 95% of the cases we’ve dealt with have been settled out of court. This is done through a process called mediation, and when possible, this is the route most people prefer to take.
In most cases, mediation is far less expensive, time-consuming and emotionally draining than a lengthy court battle. This means you can get an outcome sooner, reduce legal costs and preserve family relations as much as possible.
Whether you’re contesting or defending a Will, all of the above makes mediation a much more desirable option than going to court for all involved – but what exactly does it involve?
Understanding the mediation process
Mediation is a confidential, court-appointed meeting. In the case of estate disputes, involved parties come together in a neutral location in a bid to settle a Will contest.
When mediation proceedings are underway, there are numerous individuals usually present as negotiations take place. This includes the claimant, who’s either contesting or challenging the Will, and the administrator or executor of the estate, who’s defending the Will.
Each individual’s estate lawyer accompanies them, and represents their interests. If you would prefer, your legal professional can do all of the speaking on your behalf, which can be reassuring and make the situation a little less intimidating. But if you would like to be more involved in the discussion, you are of course able to contribute.
A Registrar of the Court, private mediator or similar unbiased third party is also in attendance. Mediation can involve some difficult conversations, and this individual works with the claimant and defendant to navigate this, without overly intervening. Mediators are simply there to guide the conversation; they have no say in the final settlement decision and cannot provide legal advice to parties.
After these discussions have taken place, the ideal and most common outcome is that a settlement that’s satisfactory for both the claimant and defendant is reached. For this to happen though, there needs to be some level of compromise from both sides, which requires all parties to have a willingness to negotiate.
When a matter settles at mediation, both parties sign a binding agreement that details the Terms of Settlement. This includes information regarding dates when funds must be paid, which will be dependent on the circumstances of your case. For instance, if there’s another claim being made against the estate, this could delay payment time, as you would need to wait until this was also resolved.
If the involved parties are unable to settle the matter in mediation, the case will be listed for a court hearing, which would take place some time in the months ahead.
Option 2: Court proceedings
Not all Will dispute cases that end up in court specifically involve a hearing. When an estate’s valued at under $700,000, a judicial settlement conference is can for some be an alternative to mediation.
Unlike mediation though, a judge is present at a judicial settlement conference, and it’s held in a conference Courtroom.
The judge, parties, and their legal representation all work to reach a settlement, but if this isn’t possible, the matter will be set down for trial. Before this, the Court expects that the parties have taken reasonable measures to resolve any animosity between them.
Understanding court proceedings
Before a case goes to trial, a directions hearing that details all of the specifications of the process ahead is held. This involves time frames, the date of the trial, when fees need to be paid and by whom, and more.
At trial, individuals choose evidence to bring forward to the judge, who makes the final decision regarding how the estate will be administered.
The general process that can be expected during a trial is as follows:
- The plaintiff (also known as the claimant) outlines their case
- The defendant has the opportunity to speak
- The judge can make a ruling based on the preliminary matters brought to their attention
- The plaintiff can call any witnesses to give evidence
- The defendant can ask the witness questions
- The plaintiff can ask their witness any additional questions
- This process repeats when the defendant’s witnesses speak
- After all of the witnesses have been questioned, additional evidence can be presented by the parties
- Any final submissions are made by both parties
- The judge delivers the final decision
How long it takes to resolve a Will dispute
All of this considered, the amount of time it takes for involved parties to reach an agreement varies from case to case.
The complications that come with taking a case to court, and even the time spent waiting between when the case is listed and actually heard before the Court, all takes additional time. This time adds up, and when an estate is extensive and involves various complexities, this can end up dragging the Will dispute on for a few months longer – or sometimes years.
While this is well worth being aware of, it’s also important to note that such instances are few and far between and the vast majority of disputes can be resolved through negotiations during mediation.
A typical Will dispute case will take about five to six months to reach mediation, and an additional one to two months on top of that if the case goes to trial. This is the time before discussions to resolve the matter actually take place, whether that is at mediation or in court, so the total time taken to resolve the matter could be some time longer than this.
The best way to get a good idea of how long your estate dispute will take is by speaking with an estate lawyer. They can discuss the specific circumstances of your case with you and provide you with insight on how it will likely play out.