Role of Mediation in Contesting a Will

Contesting a Will refers to the making of a ‘Family Provision’, ‘Part IV’ or ‘Testators Maintenance List’ claim. It is an application to the Court to seek adequate provision from the Estate of a deceased person. I.e. you feel as if you have not been adequately provided for by the deceased, so you want to contest his or her wishes.

Mediation is a common method of a way to resolve such Will contests. It is a confidential meeting that takes place between two parties and it is seen as a positive alternative to going to court when in any type of dispute.

Mediation is an important term to understand if engaging with the team at Hentys Lawyers because we are proud to report that in the last 5 years, not one of our Estate disputes has made its way to court. This is a direct outcome of our promise to you, that at all times we will endeavour to make the legal proceeding as simple and as cost effective as possible.

Who attends

Primarily, those contesting, will attend the mediation with their lawyer alongside to represent their interests. Additionally, there will be the executor/administrator of the Will present accompanied by their lawyer to act in the same regard. Last, a mediator (often a lawyers or other suitable person for the role) will be present to act as a neutral third party.

Mediation process

A mediation is most commonly held face to face in a ‘conference room’ environment rather than a formal court room, however it is ultimately up to the parties to determine where to meet, so long as the location is on neutral ground.

It can be held either before a Registrar of the Court or a private mediator. In both circumstances, the parties’ legal representatives begin by making short opening statements to the mediator, explaining their position. The mediator will then explain the purpose of the mediation to each of the parties, go through the costs involved if the proceeding were to progress to a hearing before a judge and generally finishes their opening by encouraging the parties to try and resolve the matter then and there.

The professional mediator is engaged as a completely independent third party and is simply present to guide the discussion and to ensure the proper process is followed, they by no means set the agenda. They remain impartial and have no authority on the decisions regarding the settlement, their role ultimately is simply to encourage different viewpoints in the hope that they will reach a mutually agreeable solution.

Once the mediator has finished their statements, the parties then move into separate conference rooms and offers of settlements are exchanged through the mediator until the matter is resolved or the parties decide to terminate the mediation

If a solution is reached, the settlement will then be written down and signed, and this acts as a binding agreement between both sides. The dispute these comes to an end and settlement monies are paid out. However, if the matter does not settle, then the registrar will re-list the matter before the Court to allocate a hearing date before a judge, a costly exercise to say the least!

Why it is so popular?

Hentys believes that mediation is always a better option than litigation for these 5 key reasons:

  1. Control: You have greater control over the proceeding as you maintain ownership of the issues and fully participation in the resolution
  2. (Cost) Efficiency: An agreed resolution at mediation can give parties finality. At the end of a mediation parties sign non-appealable settlement agreements which results in a speedier and cheaper outcome
  3. Confidentiality: All mediations are confidential, whereas during litigation all speech is for public record
  4. No-win lose paradigm: During mediation there is no one ‘winner’ as in litigation. Instead, the main goal is to achieve the interest of both sides so to create a win-win solution
  5. Better family relations: Will disputes put a huge strain on family relations and litigation can further this bitterness. However, since mediation requires both parties to cooperate, this can help mend broken relationships.

If you have any queries, our Contesting a Will FAQs are a great place to start.

Alternatively, if you think that you my have a Will contest on your hands, do not hesitate to give Hentys Lawyers a call for your free initial consultation. Whether you are wanting to contest yourself, or as an executor are required to defend, we’ll look after you!

 

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