Contest a Will and the role of mediation

A mediator is a professional dispute resolver. He charges a fee to try and help disputing parties to amicably settle the disagreement between them. How is this relevant to a Will dispute/Will contest/Will claim? Surely you are paying the Solicitor to bring court proceedings to do just that?

The answer is this. It is incredibly expensive and risky to bring civil court proceedings in England and Wales given in general terms if you lose them, you could end up paying your own costs and the winning party his costs as well. On a no win no fee arrangement, you wouldn’t pay your Solicitor if you lost and you may have the benefit of ATE insurance (so called “After the Event”) insurance which would cover you so why not have your day in court?!

However, it is possible given the nature of a will contest claim that the court could consider the estate should pay the costs. In that instance your share of the estate could be considerably reduced by your own costs (and those of the other party).

Worse than this, if you haven’t considered mediation (or other so called dispute resolution activities) then regardless of the fact you have won, it may be found by the court you have behaved unreasonably (notwithstanding the strength of your case) and you may not be paid your costs at all (in which case they are likely to come from your share of the estate).

A recent case in the Court of Appeal highlighted this; Rolf v De Guerin 2011 EWCA civ 78 (http://www.bailii.org/ew/cases/EWCA/Civ/2011/78.html)

The facts are not relevant save the Defendant won at trial. However he refused to take part in mediation as a result of which he did not recover his costs from the losing party. Rolf shows us that courts will expect litigants or potential litigants to seriously consider and engage in mediation or other forms of dispute resolution. Woo betide those who ignore this and proceed into court proceedings regardless.