5 Reasons Why Mediation is Perfect for Inheritance Disputes

By Toby Walker  

Whether you are involved in an inheritance dispute directly, a lawyer representing those involved, or just interested in finding out a bit more about mediation, this article is for you. By inheritance dispute, I mean challenges to a Will, claims for financial provision under the Inheritance Act 1975, or the slightly more complex trust claims and proprietary estoppel. 

I am firmly of the opinion that mediation is one of the best forms of alternative dispute resolution of any dispute, but I think those involved with inheritance disputes stand to benefit from it in particular.

Before I dive into the detail, I thought I would share a bit about the first mediation I was ever involved in. I was representing someone (the main beneficiary) who was about to be a defendant to a claim challenging a Will. The parties all knew each other, the deceased being the common point of course. 

Believe me when I say there was no love lost between these parties! In addition to the various legal arguments put forward by all the parties (potential claimants, potential defendant, and the executors of the estate), there were a whole host of accusations, allegations and even threats to get the Serious Fraud Office involved. I went into the mediation quite firmly of the view that, regardless of my client’s openness to settlement, this case would never settle. I am delighted to say that I was wrong and over the course of the next 6 or 7 hours we reached a settlement, and this would not have happened had it not been for the mediation and, in particular, the mediator’s skill.

Having now been a mediator for a number of years I offer the following as reasons why mediation is absolutely perfect for inheritance disputes:

1. Costs

Avoiding costs is good in any kind of dispute. They are all expensive, uncertain and risky. Inheritance disputes are no exception, but often with inheritance disputes the legal costs could well reduce the overall estate value (to the loss of the beneficiaries), for example if the successful party has their costs ordered to be paid by the estate. Also, if executors are involved and party to the proceedings, even if remaining neutral, their costs will almost certainly come out of the estate. So, if mediation is successful then there is an even larger cost saving.

2. Multiple Parties

Settling any case in correspondence between legal representatives involves writing letters, often intermingled with open letters advancing the case or requesting documents. The process tends to be slow and offers and counter-offers can mean weeks are added on to the process. As a practitioner, it is the exception rather than the norm for cases to settle by the simple acceptance of a letter. In inheritance claims you are almost always dealing with at least three parties if not a lot more, and so settlement negotiations by correspondence magnify this problem of lack of traction between the parties and their representatives. 

Mediation gets everyone in a room (whether in person or virtual) and gives what I think is the best shot at reaching a settlement with the help of a mediator facilitating.

3. Ongoing relationships

Unlike a contract or commercial dispute where parties simply do not do business together because they have fallen out, the chances are that in an inheritance claim the parties are either family or at least known to each other and within the same circles of friends. A successful mediation gives at least the prospect of an ongoing relationship, or where lives overlap (for example with children or grandchildren) can reduce the pain. 

Ultimately of course whether or not the relationship is preserved is entirely down to the parties, but again a mediation gives at least a chance of this happening, in addition to a financial settlement. Feeling a bit sore after reaching a deal in mediation is undoubtedly a better prospect than having one's day in Court and one party walking away as the clear "winner" or “loser”, although in my experience it is rarely as clear cut as this.

4. Discretion

Many inheritance claims, other than perhaps a discrete matter of the validity of a Will for example, may not be black and white in terms of what the Court decides. Claims such as those for financial provision under the Inheritance Act 1975 and remedies in proprietary estoppel cases, involve a high level of discretion from the Court. 

Where a Court has a wide margin within which to do justice, that can be equated to a level of risk as to the possible outcomes. There are plenty of cases I can think of where a claimant has won his or her case, only for the Court to impose a different remedy from the one they were seeking! That risk as to outcome needs to be factored in and again feeds into why mediation, where the parties collectively have control over their own outcome, is preferable.

5. Moving On

As with any other case, be it a contract or commercial tenancy dispute, people need to move on. 

With inheritance disputes, these invariably involve the death of a family member or loved one. Being able to be heard, to listen, put forward your thoughts and feelings about something, and reach a resolution is far more likely to allow people to move on. Lawyers use the phrase "in full and final settlement of all and any claims" but a binding settlement, and the process by which it is reached, is also likely to enable the parties to draw a line under the dispute concerning the estate of the deceased, and look to the future more positively.

In summary, those involved in inheritance disputes should consider mediation for multiple reasons, at any stage; whether its shortly after a dispute arises, before or after proceedings are issued, or after a trial has been listed. It can never be too soon, and is usually only too late if you’re on the wrong side of litigation! 

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