Mediation Settlement: Do Mutual Wills Really Exist?

Published 13 Dec 2012

Author: David Cossalter

Our client was a stepchild of the deceased with his natural parent having passed away in 2003. The deceased was the only beneficiary of our clients natural parent’s Estate and our client did not challenge this as he was of the understanding that all would be left to him upon his stepmother’s passing.

Throughout the years leading up to his father’s passing, our client had numerous discussions with both his father and stepmother that upon either’s passing, the property would go to each other and then after that, be divided equally between our client and the child of his stepmother. This understanding was ultimately placed into writing when our client’s natural parent and stepmother attended upon a solicitor to make Wills.

The circumstances of this case was that the Will did not specifically outline that it was a contractual agreement between them that they could not change their Wills. Regardless of the fact that the Wills were identical in nature and along the terms as outlined above the dispute arose as upon the passing of our client’s natural parent, his stepmother unbeknown to our client, made a new Will leaving everything solely to her child.

We asserted that the conduct of the parties in entering into those Wills amounted to a Contract and as such, the stepmother could not change her Will to disinherit our client without the natural parent’s expressed consent.

We advocated our client’s rights and progressed the matter through to litigation. As part of the litigation process, the parties were required to attend a mediation so as to attempt to minimise legal costs and the wasting of Estate assets. In this particular case, the mediation was unsuccessful however, in the following days, with both parties having time to think about their relative positions, we were able to resolve the matter on the terms of an equal distribution to our client.

We could not have asked for a better result in this matter as we were able to achieve a settlement which provided our client with that of which he would have been entitled to had the Will never been changed.

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