Contesting a Will: Mediation or Trial, what is better in a Will Contest or Inheritance Claim?

In an ideal world this would happen:

1. Client instructs us to claim against a Will or estate
2. We accept those instructions and proceed to prepare the claim
3. We obtain all the evidence we need including a favourable report from a “friendly” expert
4. We issue Court proceedings and that case runs to a trial
5. We win at trial and recover all of our costs and everyone is happy.

Of course we don’t live in an ideal world. The claim is likely to be defended and vigorously so (anyone motivated enough to manipulate ones gentle mother out of the entirety of her estate is going to be ruthless and determined). Another expert instructed by the defending party is “wheeled out” with a completely contrary opinion to our friendly expert. Additionally a whole host of witnesses provide completely different evidence to our witnesses. Regardless, we stand our ground, are strong and positive. The claim proceeds to trial. At the trial is a single Judge. He will make all the decisions. The atmosphere is formal. We suddenly realize there is something extremely important missing from our statement and which we did not inform our lawyer about. The Barrister on the other side seizes on this and we feel quite stupid. A document appears which no one has seen before and which contradicts our allegations on another important point. Worse still, the Judge seems to have taken a shine to one of our opponents witnesses and disregards are own. We go on to lose the claim.

Is the above a work of fiction and extraordinarily pessimistic?? No, on both counts. In a recent Will dispute claim heard by Mann J, called Schrader v Schrader 2013 EWHC 466 CH, some of these matters came together in a perfect storm and turned an apparently good case on paper into a losing position at trial. The will was written by a professional Will Writer (albeit not a Solicitor). During cross examination a draft Will came to light with handwritten comments by the gentleman who was supporting the Will, clearly showing that he had played a key role in its construction, notwithstanding his evidence to the contrary. The position was made worse because the main witness did not come across at all well in the witness box. Basically the Judge didn’t like him. The claim was lost.

This is a salutary tale. Lawyers call the above litigation risk. In Will dispute and Inheritance claims, the risk is high, largely because of the difficulty in reconstructing events that happened often several years previously and where one will essentially rely on the Judge to make a determination by exercising a judgment call on which witness to believe. If he takes a shine to one over another, the case can be won (or lost). In percentage terms this risk could easily be as high as 35%.

There is a further problem, one will not recover all of the costs, even if there is an outright win. Moreover, in Will contest claims the law on costs is complex – it is not necessarily the case that the loser always pays. In Inheritance claims it is more often the case the estate will pay the costs. Where one is contending the Will is not valid, if the Court finds the testator to blame for the dispute or that it was reasonable to make a claim against the will, it can order costs from the estate or that each party pays his or her own (which could be a financial disaster).

The advantages of a settlement (outside of the court process) then are clear:

1. You buy off the risk
2. You secure certainty and in all probability an earlier payment

However this is business! Furthermore in business, there is a price to pay for wanting something now, for avoiding risk and of course, if you want to reach an agreement it is inevitable that you will have to give something away.

It is really very difficult to discuss these matters face to face on a commercial or business basis where (which these disputes invariably generate), there is so much hot air. This is the reason a Mediation is of so much assistance. To be clear, a mediator is a professional facilitator. He or she challenges, harangues and encourages a dialogue without each side having to meet or discuss the very tricky issues these disputes will generate on a face to face basis. Whilst there can be a face to face meeting, it is not a prerequisite and is usually short and sterile. The main negotiations will take place with each side is separate rooms with the mediator shuttling between.

It is not perfect but then life isn’t perfect either.