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Contesting A Will Through Mediation (NSW)

When someone is contesting a will in New South Wales, they often assume that the matter will be resolved in the Supreme Court. Statistically, many deceased estate disputes are actually settled through negotiation or at mediation without recourse to a court hearing. In fact, it is compulsory for claimants to attempt mediation before the court will hear a will dispute. Mediation is a structured negotiation between adversarial parties and their legal representatives, with a mediator assisting the parties to achieve a resolution without court involvement. This article explores the process of contesting a will through mediation in NSW, with a focus on the benefits that accrue from negotiating a settlement without court intervention.

What Is Mediation?

In a mediation, the key parties meet and attempt to reach a mutually agreed-upon resolution. It is commonly used in civil disputes that cannot be resolved privately between the parties. When someone files a claim against a deceased estate, the court will order the parties to attend mediation before proceeding to a court hearing. The court will allow a claimant to forgo the mediation step only in very special circumstances.

In a will dispute, the parties in attendance at mediation are the executor or administrator of the estate, the claimant/s and legal representatives for both parties as well as the professional mediator. The mediator’s job is to guide the discussion in a productive direction and encourage the parties to reach an agreement. Mediators are tasked with oversight of the proceedings but they are not authorised to provide legal advice, and cannot order a settlement.

Appointing a mediator

The parties to mediation typically appoint a mediator through mutual consent from a list of experienced mediators in their area. This list of mediators is typically drawn from retired judges and experienced barristers or solicitors. If agreement cannot be reached on the choice of mediator then the court can appoint a court mediator, private mediator or judge.

A mediator must be an impartial party to the proceedings, so he or she must disclose any previous contact that they had with any parties to the mediation, and if they have any vested interest in the case. If the mediator becomes aware of any reason why they cannot act impartially during the mediation, they must inform the parties immediately. The parties will then make a decision as to whether to proceed or end the mediation.

Benefits Of Contesting a Will Through Mediation

While mediation will not work in every circumstance, there are distinct benefits to contesting a will through mediation. A major advantage of court-ordered mediation is that the claimant has access to a full list of the estate’s assets and their valuations. Knowing the value of the estate will properly inform any offer that the claimant makes or considers from the executor. Even if the mediation is ultimately unsuccessful, it can help to narrow the issues in dispute prior to a court hearing.

There are other benefits to contesting a will through mediation, namely:

  • It is less costly for both sides than a court hearing. While the estate will cover the executor’s expenses and the estate may reimburse the claimant’s legal fees if the claim is successful, this will reduce the size of the estate for redistribution;
  • It is quicker than a court hearing, which will be delayed until a court date is available. The hearing itself can also be time-consuming;
  • Unlike a court hearing, which is a public record, matters discussed in mediation are confidential and all parties must keep documents and information revealed in the mediation private. The only exceptions are when the party is authorised to disclose or in compliance with a court order; and
  • Mediation is premised on the principle of mutual agreement, so it is likely to be less acrimonious for family members than the more adversarial environment of a court hearing.

Prior To Mediation

Before court-ordered mediation, the claimant files an affidavit outlining their claim to the deceased estate. The party representing the estate will then file a response to the claim with an inventory of assets and liabilities. Other than incidental evidence presented as required, these statements are the basis of the mediation. Before mediation commences, it is important for the executor or claimant to prepare so that they are best placed to negotiate a favourable outcome.

The process Of mediation

A preliminary conference should be held where the arrangements are finalised and the parties agree as to what information is required to commence the mediation. The parties to mediation find a mutually agreed time to meet and decide on an appropriate venue. Some mediation sessions are held in person but it is also possible to meet virtually through video conferencing. There is more flexibility for how mediation is conducted in comparison to courts. Mediation can be organised in a way that is conducive to reaching an agreement and the comfort of the parties. For example, the parties might most easily negotiate face to face, or reach an agreement only through being kept completely separate, with the lawyers conducting the communication.

Each party must attend the mediation unless there is an agreement in place to the contrary. In order for a party to not attend, their representative must have written authority to negotiate and settle the dispute and be empowered to sign a binding settlement agreement.

The process differs slightly depending on whether a private mediator or a court-appointed mediator is leading the mediation. A private mediator requires parties to sign a mediation agreement that outlines the statutory regulations that pertain to mediation, and the specific conditions of that mediation session. A judge or court official will typically explain the rules of the mediation before commencing the session and obtain agreement from all parties present to abide by the regulations.

All parties to mediation must act with courtesy and cooperation, comply with the mediator’s directions, and participate with good faith intent to reach a settlement. Parties to a court-ordered mediation must also comply with the relevant court rules and practice notes.

Mediation can end in several different outcomes. The optimal outcome is that the parties sign a settlement agreement that resolves the dispute. One of the parties can, after consulting the mediator, give written notice to all concerned to terminate the mediation. Mediation can also terminate if, after the allocated time expires, the parties do not agree in writing to continue with the mediation.

When the mediation is court-ordered, the mediator is charged with notifying the court of the date and time of the mediation’s commencement and conclusion. Either the mediator or one of the other parties must inform the court if a settlement is reached during the mediation process.

Post Mediation

If the parties reach an agreement at mediation, the terms are recorded in a written document and signed, each party receives a copy, at which point the settlement is legally binding. The terms of the agreement are confidential except if they must be enforced through the court. The alternative is that the parties do not reach an agreement and the matter proceeds to trial. The parties can agree to recommence mediation at any point during the court hearing.

There is no right of appeal for a settlement agreement reached during mediation between parties who freely consent to the resolution. The only circumstance under which someone can appeal this agreement is if there is provable fraud or false and misleading conduct.

Mediation fees

A mediator’s fees are typically shared between the parties, but it is common for the estate to pay the costs associated with the mediation unless or until the court awards costs.

The contested wills team at Armstrong Legal can help you achieve the optimal outcome at mediation. Our experienced solicitors can negotiate skilfully on your behalf, and draw up a settlement agreement that is clear and legally binding. If you would like advice about mediation or any other matter related to will disputes, please contact us on 1300 038 223.

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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