The number of wills that are now being contested seems to increase day by day. Once upon a time the prospect of being asked to argue over the content of a will was remote, but the public now are far more aware of what their rights are and more and more actions are being taken by beneficiaries – and some relatives who are not beneficiaries as well!
People are living longer and there are more issues around incapacity than there used to be. Testators make a will and then develop some form of incapacity from, say, dementia and then have their capacity to make that will challenged at a later date.
The Inheritance (Provision for Family and Dependants) Act 1975 has led to a lot of actions being launched by dependant spouses or children not provided for in their view under the terms of the will.
The great difficulty facing litigators over arguing over a will is that the costs will eventually, on some basis, come out of the Estate. There are ways of minimising the risk by well-calculated Calderbank offers or by Part 36 Offers, but the Estate is at risk of being plundered by litigators leaving very little, if anything, for anyone to benefit from.
Large Estates can afford to pay substantial cost claims, but most Estates are quite modest. Any Estate under £500,000 is at risk of being left with nothing if the case is allowed to be litigated. There can be several parties to these actions and it doesn’t take three or four lawyers very long to spend a few hundred thousand in costs.
The writer was of late involved in an argument over an Estate worth less than £200,000. The lawyers involved had racked up costs of half of that and the case had not yet even reached directions. The lawyers were almost forced to consider mediation (otherwise known as ADR), as the Estate would have been left virtually bare had they not done so.
On the mediation, the participants were as usual in their separate rooms. There were five members of what was previously one family who now were divided up by litigation and were not even willing to sit in the same room with each other. They had effectively “put up the barricades”. They refused to join in joint sessions at first preferring to stay where they were.
During the day, the attitude of everyone softened – helped by an experienced mediator encouraging those present to look forward not backwards.
By the end of the day, the mediation resulted in a settlement with only the infant claim left to be approved by the Court. Even better, the family were able afterwards to talk to each other whereas the litigation had precluded that over the months before.
This case particularly highlights the benefits of mediation. The result was obtained in one day, which of course is far quicker than litigation. The result was also obtained against a background of agreement between the parties resulting in the rift in the family at least being partially healed.
The costs for the day were £1,600.00 for each lawyer and £1,500.00 for the mediator, plus the hire of the rooms. A great result! The lawyers at last could deliver their bills for work done and the beneficiaries could begin their lives again.
Whilst the CPR spells out that an unreasonable refusal of ADR may result in costs sanctions, not many lawyers actually recommend ADR. To those lawyers who have not experienced mediation, it is something akin to witchcraft. It is something that they are frightened of. It is something designed to rob them of their fees. If more actually used mediation, then they would see the benefits and realise that ADR is not something to be frightened of.