A look at the legal processes of a will dispute
When a family member passes away it’s a trying time. Friends and family members are emotionally affected. Funeral plans need to be made. But sometimes one of the most difficult aspects of this scenario is handling the deceased’s will. Especially when there is a dispute in regards to the will. The handling of a will can become messy. When all family and friends are not in agreement, the matter could escalate to the point where it’s taken to court.
To avoid this scenario there are plenty of ways to resolve it. There’s a mediation process that can take place to avoid taking the matter to court. For scenarios like this, an Estates Dispute Lawyer can guide you through this process. Will disputes are very common today. It’s the reason why Estate Dispute Lawyers choose to specialise in this area. Their years of study and practising in this area of law give them the credentials to help you out.
To help you understand more about a will dispute, we’re covering what the mediation process looks like. It’s often one of the more preferred approaches when it comes to resolving disputes.
Different types of disputes
Disputes over a will are usually focused on family provision claims. In this scenario, a family member is usually left out of a will when they believe they shouldn’t be. Alternatively, they may not have received as much as they thought they would. Both of these examples may be the motivation behind a family member wanting to challenge the will.
Another type of dispute is an executor dispute. In this scenario, different people assigned as executors may disagree with an aspect of the will. A common example of a disagreement may be the sale of a property. One executor may agree with the sale of the property while the other may not.
In some cases, a dispute may arise between the executor and the beneficiary. A beneficiary may disagree with the way the administration of the will is being taken care of. A beneficiary can also seek to remove the executor from their position. It’s best to engage with an Estates Dispute Lawyer before you begin the process of removing an executor.
A beneficiary or someone who has an interest in the estate can also dispute the capacity of the person who drafted the will. They may question aspects of the will such as whether the deceased had the cognitive capacity to draft the will in the first place. The cognitive ability of the will-maker is usually bought into question when a major change is made to the will towards the end of their life.
For any of these disputes and scenarios it’s best to engage with a legal professional before you take things further. In some cases, a dispute occurs from a misunderstanding. That’s why it’s best to engage with an Estates Dispute Lawyer first. Get valuable legal advice before you take legal matters further.
The dispute resolution process
Anyone involved with a will dispute usually doesn’t want the process to drag out. It can only get more complicated and expensive to resolve if the dispute goes to court. Ask an Estates Dispute Lawyer and they will often recommend that you start with negotiations. The start of negotiation could be as simple as your lawyer drafting a letter to the executor explaining that they believe they have been left out and are owed something from the will.
The executor and the Estates Dispute Lawyer representing them will then review the letter. They will determine whether there is a case to be made and whether or not there is something that can be done to provide a fair outcome. At this point, an outcome could be determined without mediation.
If both parties still cannot come up with a decision then the next step will be to arrange a settlement conference. In this scenario, both parties meet up and have a conference, each with their own Estates Dispute Lawyer present. The purpose of this conference is to work out a deal. This process is done in the hope that the matter can be resolved before being taken to court.
The next step is mediation. This is one of the most common dispute resolution processes that occur when lawyers are involved. There are two common types of mediation that are usually used at this point. A private mediation is performed where both parties select their own private mediators to sit down and resolve the issue within a certain timeframe. The other type of mediation is what’s called a court-annexed mediation. This process involves a mediator that is appointed by the court to help resolve the issue.
Court proceedings
Before a resolution can be found during mediation, a family member may have already started things off in court. This is done because there is a limited timeframe in which you can claim through court. So if a mediation process takes too long without a resolution, it can be too late to then kick things off in court. In Victoria, a claim must be made within 6 months of when probate has been granted to the executor of a will.
Whoever wants to challenge the matter of a will in court must initiate an application. In this application, there must be evidence from the person making the claim. Their Estates Disputes Lawyer can assist with drafting and sending this application. In this scenario, the person making the claim is referred to as the claimant. In their claim, they must provide evidence that shows their provision from the will is inadequate along with their financial position and needs.
After the documents of a claim are filled out and sent, the court sets a date for the first hearing. On the other end of this scenario, the executor will need to file an affidavit that details what’s in the estate, the financial position of the estate, and the details of the other people who have an interest in the estate. The executor can also respond to the affidavit being filled by the person making the claim.
Mediation process
After the initial filling out of affidavits, the court will send the parties to mediation. This is done as an attempt to resolve the matter before it goes any further in court. Both parties can each use their Estates Dispute Lawyer to represent them during this process. The latest numbers show around 80% of family provision claims and other disputes are often resolved at mediation. It can save all parties involved a lot of money and time without the need to go to court.
In some cases, a resolution isn’t always met on the day of mediation but it can still happen shortly afterwards. The mediation process itself is very different from a court hearing. The main difference is that the outcome of the mediation is determined by the participants. For a court hearing, the outcome is determined by the judge presiding over it.
When you leave the decision of a will dispute in the hands of the court, you may end up with a decision that both parties are unhappy with. This is why your Estates Dispute Lawyer will recommend mediation instead. It’s one of the best chances you have of getting a desirable outcome.
Get the right legal advice now
If you’re concerned about the outcome of a will, there are legal professionals you can engage with. We highly recommend you talk to an Estates Dispute Lawyer before you challenge any aspect of a will. There are many legal definitions and obstacles you may not be aware of. The best way to navigate through these is with the guidance of a legal professional.
Here at P&B Law, we can assist with the legal processes involved with challenging a will. We can also assist you with drafting a will. With a detailed will you can avoid many of the disagreements and confusion that come with will disputes. You can rely on our Estates Dispute Lawyer to ensure your will is properly written, signed, and witnessed.
Contact our Estates Dispute Lawyer today for legal advice on drafting or challenging a will.