The role of Mediation when contesting a will

Alternative Dispute Resolution (often referred to as ADR by solicitors) is very much flavour of the month with courts and judges. Parties are encouraged to embrace ADR wherever possible, and this is as true in the field of contested wills as anywhere else.

We fully embrace ADR and make a point of inviting the other side in any contested will claim or contentious probate case to engage in it. ADR helps to break down the traditional distinction between “winners” and “losers” and this can be particularly important in contested will cases that often see families deeply divided. ADR can also help to avoid the escalation of solicitors fees and legal costs in disputed will cases. This is particularly important in estates of a modest size and value, where legal fees can often deplete the money that is available for distribution to the parties.

We are strong supporters of mediation in particular and have attended numerous mediations around the country in contested will claims that have resulted in successful settlements. In our experience, mediation is a quicker, cheaper and less divisive alternative to a contested trial. Of course, it is not suitable in every disputed will case, but in our opinion it should always be considered; alongside other suitable forms of ADR, such as “early neutral evaluation by counsel”.

We are also committed to following the ACTAPS Code. The Association of Contentious Trust and Probate Specialists (better known as ACTAPS for short) have created the Code to promote the resolution of trust and probate disputes. As experienced solicitors, we are only too well aware of the damage that acrimonious and expensive court proceedings can cause. The Code endorses the use of mediation processes at an early stage. Although the ACTAPS Code is voluntary, it is held in high regard by judges and the courts.

In brief, the ACTAPS Code gives provision for the following:-

  • A detailed Letter of Claim relating to the particular type of contested will dispute or inheritance claim;

  • The documents that the parties should produce;

  • Early production of medical records;

  • Provision of a Lark v Nugus letter;

  • Suggested time limits.

If a party fails to act reasonably then they can find themselves facing stiff costs penalties. The courts have in some cases ordered parties to pay their opponent's legal costs for unreasonably refusing to take part in mediation.

For further details about the role of mediation when contesting a will give our free helpline a call on 0808 139 1596 or drop us an email.