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Contesting A Will Through Mediation (ACT)

In the Australian Capital Territory, there is an allowance for eligible parties to dispute the provisions of a deceased estate. The wording of the Family Provision Act 1969 suggests that the Supreme Court is the appropriate venue for contesting a will. On the contrary, most contested will cases are settled at a mediation session before the matter ever proceeds to a hearing. In the ACT, a claimant must attempt to resolve their dispute through mediation before they can set a date for a hearing. While this is a compulsory requirement, it is a good alternative to litigation as the outcome is in the hands of the parties involved in the dispute. This article explains the process and benefits of contesting a will through mediation in the ACT.

What Is Mediation?

Mediation is a structured negotiation where a neutral mediator helps the parties to discuss and attempt to resolve their disagreement. It is often used in civil disputes that cannot be settled between the parties privately. When someone is contesting a will through mediation the parties that should be present include the mediator, the plaintiff (claimant) and the defendant (executor of the estate), as well as legal representation for the disputing parties.

The Role Of The Mediator

A mediator is appointed through the mutual agreement of both parties. Typically, the mediator is chosen from an approved list of local mediators drawn from experienced barristers, solicitors and retired judges. If the parties cannot agree on the selection of mediator then the court will appoint their own choice as mediator.

The mediator’s purpose is to guide the parties in a productive discussion and encourage agreement. They are responsible for oversight of the session but they cannot give legal advice and cannot order a settlement. The mediator must be an impartial party and must disclose if they discover that they have a conflict of interest in the proceedings. The parties to the mediation can then choose to either continue or suspend the session until a new mediator is selected.

Benefits Of Contesting A Will Through Mediation

Contesting a will through mediation is distinctly different from the process of making a claim through a hearing. While it may not work for every dispute, there are undeniable benefits to settling a claim pre-trial. The parties, with the help of their legal representatives and the mediator, are able to work out a solution for themselves instead of leaving it to the court to decide the outcome. Mediation is based on the premise of mutual agreement, so it is the preferred choice for family members who would otherwise have to experience the adversarial court system.

Mediation is also a more cost-effective option than a hearing. While the defence is paid for out of the estate, and the plaintiff may recover their costs from the estate if they win at trial, both these expenses will significantly impact the overall value of the deceased estate. Smaller estates, in particular, are in danger of being depleted altogether from the costs of contesting a will at a court hearing.

Mediation is not only a less expensive option, it also offers a swifter resolution than a hearing. Anyone who intends to make a claim before the court will have to wait for the next available court date and then the hearing will take as long as necessary for both parties to make their case and the court to make a judgment on the claim.

Mediation is also a private process, unlike a hearing that is on the public record. Any information or documents that is shared during mediation will be kept confidential unless authorised or compelled through court orders.

The Process Of Contesting A Will Through Mediation

Before mediation, the parties will submit affidavits outlining their claim and defence of the matter. The plaintiff will be able to access an inventory of the assets and liabilities of the estate that will inform their claim against the deceased estate. The parties will make final arrangements for the mediation session, agreeing on the venue and meeting date. The logistics of a session can be arranged to best facilitate agreement, for instance, the negotiation can be held in person or through telephone or video conferencing.

It is important that all parties attend the mediation, otherwise, they will not be present to hear the relative strength of the opposing case. It is possible for a legal representative to negotiate on behalf of their client if they have written authority to act for their client and sign a settlement agreement.

Hopefully, the parties to mediation will reach a resolution and sign a settlement agreement. This written agreement is legally binding and there is no appeal process for a settlement agreement reached in good faith. The mediator will notify the court of the details of the mediation, and one of the parties involved will inform the court if the dispute is resolved through the mediation process. The alternative is that, if there is no hope for the mediation to succeed, one of the parties will give notice that they want to terminate the session, or the allotted time will expire and the parties will agree not to continue.

The contested wills team at Armstrong Legal are highly experienced in mediation and specialise in achieving an optimal outcome for their clients without recourse to expensive court litigation. Please contact or call our team on 1300 038 223 if you need legal representation at mediation or any other advice on contesting a will in the ACT.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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