Family Feuds And Will Disputes- Putting Out The Fire
By Laura Costello
Will disputes are becoming an increasingly common occurrence in Australia, however there are some simple ways to ensure that such a dispute does not turn into a long, complex and costly court battle.
The death of a family member is an incredibly difficult time in one's life, and often the pain of such a death is intensified by feeling confused or unfairly provided for by a loved ones will. Even though the law recognises a person's right to choose who will inherit his or her property, there are accepted reasons for a person to contest a will. These include if a person has been left out of the will, been unfairly provided for or if the executor of the will was negligent.
Seeking legal representation
In a will dispute, it is important for those contesting the will and those defending the will to seek legal representation. This ensures that the will dispute becomes a legal issue, rather than a personal issue that can have longlasting effects on relationships. Both sides of the dispute obtaining legal advice can also prevent significant legal fees, if one side of the dispute is informed early of the reasons why their argument (whether to contest or defend the will) is unlikely to succeed.
Consideration of legal costs
It is important to consider before involving oneself in a contest of the will, whether or not the potential return of what you seek to claim through the will outweighs the potential legal costs involved in challenging the will. This important consideration can help put out the fire in a variety of emotionally charged situations amongst family members who have been left confused by a loved ones will. Such a consideration avoids the dispute turning into a rehash of older family battles or initiating a will contest, simply out of resentment towards the deceased or other family members.
Be prepared to compromise
In any inheritance settlement, compromise is an important tool to help mitigate family disputes. It is important to consider every disputing members relationship to the deceased, and to consider a compromise in order to ensure an outcome that benefits all appropriate claimants to the estate.
A settlement offer is typically the first step taken to resolve the dispute outside of the court. This involves the executor offering the disputing party an increased share in the estate of the deceased, in order to avoid a later court claim. The acceptance of a settlement offer is usually the most affordable approach for all sides involved, and can be an important way of salvaging long term relationships through a quick resolution to the argument.
Courts often want to see evidence that efforts have been made to settle the dispute before it reaches the courtroom. Entering into mediation is far cheaper than litigation and can help salvage the family relationship. Mediation is a negotiation process led by a legal practitioner, aimed at assisting disputing parties to achieve their own resolution, rather than relying on the order of a court. Whilst the outcome of mediation is not binding, it is a great way for disputing parties to reach an agreement, which in some way benefits all those involved. This is in contrast to the win or lose outcome of a court battle.
Mediation remains the often prefered process in order to resolve disputes as the role of the mediator is to provide an independent voice who can help both sides of the dispute avoid confrontation. Even in cases where mediation is unsuccessful, the process can help put out the fire of an emotional family dispute through allowing those contesting and those defending the will to hear both sides of the argument.
The most appropriate way of avoiding a will dispute turning into an ugly family feud, is by seeking the expert advice of a legal professional. This helps ensure that the origins of the dispute remain legal, rather than personal.