Will and trust disputes take many forms. A person may bring a claim that a will was invalid, and should therefore not be admitted to probate. For example, the testator may have lacked mental capacity at the time the will was executed, or the will may not have been properly witnessed, or the circumstances in which the will was prepared may be so suspicious that the court should not allow it to be admitted to probate. A person who has been left out of a will may bring a claim for reasonable financial provision under the Inheritance (provision for family and dependants) Act 1975. Problems can arise with a will even after probate. A beneficiary may complain that the trustees have not properly considered him or her when exercising their discretion. Or the claim may be that the trustees or a third party have caused the estate or trust loss through bad management or investment.
Mediation is a very useful and effective way to resolve such disputes, whether or not litigation has been started. This article sets out the matters to consider when preparing for a mediation of such a dispute.
Selection of the mediator
Many parties choose a solicitor or barrister with professional experience of will and trust disputes as a mediator. Others say that a good mediator does not need to be a trust lawyer to mediate a trust or will dispute. Because trust and will cases have many technical issues, I always recommend choosing a trust lawyer as the mediator.
Arrangements for the day
Most commercial cases can be resolved in a day or less. Trust and will cases are no exception. The only problem is the drafting of the settlement when the parties have reached agreement in principle. This drafting frequently takes over an hour, sometimes two hours, and starting drafting the settlement agreement at 7 pm or even later, when everyone is thinking of going home, is no joy.
Who should be at the mediation
If proceedings have been issued all parties need to be represented at the mediation, but if there are a number of defendants one solicitor or barrister may be able to represent several parties without an insurmountable conflict of interest occurring. The mediation runs best if there are only two or three main protagonists, but all parties need to be present or represented or agree to be bound by the outcome. In a will case you do not need every legatee to be at the mediation. It is usually sufficient in addition to the claimant to have the residuary beneficiaries and the trustees, executors or personal representatives. However if some of the beneficiaries or potential beneficiaries are minors or perhaps not even born you will need to make sure that they are represented even if they have not yet been formally made a party to the proceedings. Parties to a mediation sometimes think they should bring their full professional team to the mediation: their solicitors, counsel and experts. Having solicitors and counsel present may help the parties and the mediator better to understand the merits of the dispute, but there is really no need to have experts as well. If they are to give evidence at the trial experts need to prepare a written report of their opinion on the matter about which they were instructed. If expert reports have been prepared they may be useful for the mediator, but no-one is going to give evidence orally at the mediation.
Authority to settle
As with any mediation it is essential that the people present at the mediation are in a position to sign a deal without needing to get authority from another person. In some cases a person may authorised up to a known financial limit. That is fine so long as the limit does not need to be exceeded. If it may need to be exceeded, perhaps late in the day, contact by phone may need to be made as a matter of urgency.
Saving tax should always be high on the agenda when dealing with trust and will disputes. A particular settlement can frequently be effected in more than one way, and the parties will need tax advice as to the most tax-efficient way to proceed. It probably is not necessary for an accountant to be present at the mediation, but one should be available on the phone up until the evening. Inheritance Tax can often be saved by a variation of a will within two years of the testator’s death or by the settlement of a claim under the Inheritance (Provision for family and dependants) Act 1975.
The documents for the mediator
Typically in a disputed will case the documentation to be supplied will include the disputed will, eceased’s last will, the deceased’s previous will, the solicitors’ will file, extracts from the parties’ correspondence, the Deceased’s medical records and any expert medical reports obtained for the parties. If proceedings have been issued, include also the statements of case and the main witness statements. An up-to-date valuation of the estate or trust fund is vital, so the parties and the mediator know how much is in dispute. It is helpful for the mediator to know whether any settlement offers have been made before the mediation. All parties should be ready to tell the mediator how much their legal costs amount to, and how much more will be spent if the action goes to a trial.
In all commercial mediations, not just trust and will disputes, it is very helpful if all parties set out in writing the position they hold at the start of the mediation. These are usually prepared by the parties’ lawyers. There is nothing to be gained from a position statement which merely reiterates the points made in a party’s statement of case. That merely heightens any bad feelings between the parties. What is helpful is to indicate that the party hopes the mediation will achieve a settlement, perhaps how the party hopes that will be achieved, and possibly what form of settlement the party considers may be realistic.
The form of the settlement
If proceedings have been issued they must be ended. The usual way is for the parties to agree a form of court order known as a Tomlin order to be made by the court by consent. Or it may be appropriate for a will to be proved in solemn form. In cases where I have been the mediator I usually leave the drafting of the settlement to the parties’ counsel to finalise, though if the parties do not have counsel I have sometimes drafted the necessary documents myself.
Any settlement should deal with the legal costs that the parties have incurred. In some cases it may be appropriate for all parties’ costs to be paid out of the residuary estate. However in most cases settled at a mediation I have found that each party bears their own costs, usually out of their share of the estate. That way all parties leave with their head held high, and nobody has lost face.
 Wintle v Nye  1 All ER 552,  1 WLR 284.
 Inheritance Tax Act 1984 sections 142 and 146.