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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.

Contesting A Will Through Mediation (Vic)


The most common way for a contested will to settle in Victoria is through mediation, rather than through a court hearing. There is a provision in the Administration and Probate Act 1958 for a Testators Family Maintenance (TFM) Claim to be addressed pre-trial through a structured mediation process. In practice, most cases are referred to mediation before proceeding to the Supreme Court of Victoria, and the process has a high rate of success. This article explains the key elements of contesting a will through mediation in Victoria.

What Is Mediation?

Mediation is a process that involves an impartial third party (the mediator) helping disputing parties to negotiate a mutually agreed outcome. It is a common method of dispute resolution in civil litigation when the parties have not managed to privately reach an agreement. In Victoria, everyone who files a TFM claim in the Supreme Court is obligated to attend court-ordered mediation before the matter can proceed to a court hearing. There are only limited circumstances when the court will waive this requirement.

Who Attends Mediation?

The only persons who are entitled to attend a contested wills mediation are the mediator, the parties to the litigation, the claimant and executor, their legal representatives and anyone directly affected by the legal action, such as an existing beneficiary of the will. In practice, it may be necessary to let a support person attend as an observer on the understanding that they will not play a part in the session.

The claimant should be encouraged to be present at the mediation even if they feel disinclined to attend. It is much harder to reach a successful agreement if the parties are not present to hear the other side’s argument and to understand the dynamic at work. If it is impossible for a party to attend in person, their legal representative must have written authority to negotiate and sign a settlement agreement.

Mediator

The disputing parties appoint a mediator through mutual agreement to guide the negotiation and encourage the parties to reach a settlement. The selected person should be an experienced mediator who is familiar with the law in the jurisdiction. A mediator is often a well-known legal practitioner such as a senior barrister or former judge. The mediator must be an independent party who has no personal interest in the case.

Venue

Mediation should be held in a neutral venue that is comfortable and accessible for all parties. It is important that the chosen venue has flexible opening hours, as it can derail a negotiation to suspend discussion because the venue is closing. Typically, smaller contested estate matters are held in a solicitor’s office or mediation facilities in a counsel’s chambers. There is also the option to hold mediation via video or teleconference, which is a good option if the parties live some distance from each other.

Advice To Claimant

The claimant should be advised on the process of mediation prior to the session and provided with detailed information as to the configuration of the room, the parties that will be present and how long it is likely to take. The plaintiff and defendant will have access to affidavits and statements prior to mediation, which will give both sides a realistic idea of the relative strength of their opponent’s case. The claimant must be advised of the costs associated with the mediation process and encouraged to reach a settlement at this preliminary stage rather than incurring further expenses through court action. Particularly with smaller estates, the high costs of a court hearing can diminish the value of the estate because of the expense of defending the estate and the possibility that the legal costs of the claimant will need to be paid out of the estate.

Process Of Mediation

Prior to mediation, each party files an affidavit outlining their argument: the plaintiff with their claim to the deceased estate and the executor with an inventory of the estate and defence against the claim. A preliminary discussion should be held between the parties to agree to the arrangements for the session. Once they are at the mediation all parties must act with courtesy and with a sincere commitment to reach an agreement. The process can have several outcomes: the parties may resolve the dispute and agree to sign a settlement agreement. One of the parties will then notify the court that a settlement was agreed upon during mediation. This is a binding agreement and there is no right of appeal unless there is evidence of fraudulent or misleading conduct.

Alternatively, the parties may not be able to come to an agreement. Then the mediation is terminated, either through one of the parties giving written notice with the permission of the mediator or if the parties both agree not to continue after the allocated deadline. The mediator will notify the court of the details of the unsuccessful mediation session and the case will be relisted for a court hearing date.

Advantages To Mediation

There are clear benefits to contesting a will through mediation:

  • Mediation is a less costly alternative to proceeding to a court hearing. Even though the estate covers the executor’s legal fees and the claimant may be able to recoup their expenses through a costs order, this will decrease the value of the estate.
  • The matter should be settled more quickly in mediation, as the plaintiff does not have to wait for an available court date and for a judgment to be delivered.
  • Mediation sessions are generally confidential and the details are kept private between the parties. This is a major advantage over a court hearing that is public record, and for some parties may be of critical importance.
  • It is likely to be a more amicable process than a court hearing because it is based on the principle of negotiation and mutual agreement. This is an essential consideration for contested will matters that involve close family members.
  • Even if the parties do not reach a settlement, mediation can help the parties to identify and narrow the disputed issues before proceeding to court.

The Armstrong Legal contested wills team have extensive experience with contesting a will through mediation. The team can help you to successfully negotiate an optimal outcome without incurring the higher costs of proceeding with a court hearing. For any legal advice on testamentary, probate or succession matters, please telephone 1300 038 223 or contact us to set up an appointment.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

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