There has been “a seismic shift” towards mediating disputes over wills and inheritance rather than going to court, a conference of probate lawyers has been told.
Mediation is in the best interests of families for reasons including avoiding or minimising conflict and costs, Vinóg Faughnan SC, an experienced probate lawyer and accredited mediator said. There is “much less chance” of reconciliation between warring family members after a full trial, which often results in “a pyrrhic victory”.
Mr Faughnan was addressing the annual conference of the Probate Bar Association, which focused on the resolution of inheritance and probate disputes via mediation.
Since the Mediation Act came into operation in early 2019, he estimated the vast number of probate disputes are mediated. Lawyers, clients and all involved have “embraced” the Act.
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Probate disputes are family centred, often arising from historical unresolved differences between siblings which remain dormant until after both parents die, he said. After the death of the second parent, issues between siblings can escalate.
Mediation can resolve issues in families that a court cannot and any agreement reached by family members themselves is much better than a court judgment, he said. “Things are black and white in court, there is a winner and a loser but, in a mediated settlement, everyone feels they got something and have contributed.”
Senior counsel Catherine Duggan, also an accredited mediator, said many family members just want “to vent” and have someone to listen to them and that is the mediator.
Challenges to the validity of a will are very suitable for mediation, she said. The key issues for counsel to consider in such cases included what limitation periods are applicable and what consents or court orders are necessary to reflect what is agreed in a mediation.
Solicitor Nora Lillis said her experience of mediation is that family members either want to avoid falling out with each other or want “nothing to do” with each other.
A lot of clients who do not want a family fall out blame the dispute on a bad will or a bad parent, she said. Some had told her: “You are here so we do not have to talk about this.”
Earlier, in opening the conference, Ms Justice Siobhán Stack, who manages the High Court probate list, said disputes over the administration of estates are the “staple diet” of any disputed matters in the list.
There is scope for more clarity in relation to the respective roles of beneficiaries and administrators of estates, she said. If a suitable case arose, there may be an opportunity for the court to set out the respective roles of each as there appeared to be “misconceptions” on both sides about entitlement to information.
A clear statement of the law in that regard could avoid disputes and allow incipient disputes to be resolved earlier, she said.
Issues can also arise about codicils to wills, she said. In a case before her, where a dying woman wished to leave a particular property to one of her children, and there was consent by her other children, an issue arose whether the fact that two of her children witnessed the codicil meant they could not benefit.
She was able to resolve that issue, the judge said.
