How does mediation work when contesting a will?

Published 25 Feb 2015

Author: David Cossalter

Mediation is a step in the process of an inheritance dispute that usually precedes going to court. The focus of mediation is to come to mutually agreeable terms between the executors of the estate in question and the individuals contesting a will\P

The two parties come together in a confidential meeting where the details of the dispute can be discussed and negotiated. A contesting wills lawyer or a similarly qualified person acts as a mediator.

One of the primary benefits of mediation is that it is a cheaper alternative to a judge's decision, as the costs of a court case can begin to mount when a claim becomes a drawn-out affair.

Some people also prefer this process because the mediator is an independent voice who can help both parties avoid confrontation and emerge from the meeting without damaging long-term relationships. This is particularly important when the people involved are close family members or friends.

Even when mediation is unsuccessful, it often enables the executors and the claimants to better understand each other's arguments, potentially reducing the amount of time wasted in future hearings and court appearances. These meetings are also more informal and flexible to participants' schedules than court hearings.

Preparing for mediation

If you are making a family provision claim, there are a number of steps that usually occur before you reach the mediation stage. Firstly, you will need to find a lawyer who has expertise in challenging wills.

Your legal representation can assess your case, gather evidence on your behalf and present the facts to the executors of the estate. In some cases, this is enough to secure a satisfactory settlement.

However, there are reasons why a settlement is not to your advantage. For example, the executor may not honestly disclose relevant information regarding the deceased's assets. In other words, you are essentially negotiating in the dark.

If you are unhappy with proposed settlements, the next step is to consider mediation. Importantly, the executor will be required to show you a comprehensive list of the testator's assets.

Not only does this give you a better idea of how much you may be entitled to, it also enables you to present your evidence to a mediator who can offer impartial recommendations on your claim.

While mediation may not necessarily be successful, you should be more prepared for a court case if you decide to take this route.

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