Where e.g. there is a dispute about the construction of a home made will, costs can be saved and a tax-efficient settlement obtained, by having a conversation before mediation is proposed/proceedings issued.
The parties solicitors will still need to undertake preliminary due diligence about the existence of documentary evidence, e.g. diary entries and correspondence; to take proofs of evidence from key witnesses; and to obtain office copies.
These disputes are fact specific, and the armchair questions to ask at this stage may typically include:
· If T drafted the will, then what did he intend?
· If someone else drafted and typed the will, did T understand the scheme of gifting under the will as drafted? i.e. is the will valid?
· Did T know the full extent of his estate, i.e. did T have mental capacity?
In such disputes, the ‘big ticket’ asset is likely to be the family home (‘P’).
A logical analytical starting point is that if the will is valid, the gift of P (or of an equitable interest in P) may fail because of a defect in drafting, in which event, T’s beneficial interest in P will fall into residue for distribution in accordance with the terms of the will.
Where T is survived by S, I do not think a judge is going to remove the roof from over his/her head, so what is the point of litigation?
S may also have a claim under the Inheritance Act for lack of provision, and other claims in equity (which could be funded on a CFA basis).
Depending upon the date of T’s death, the re-structuring options potentially include:
· Disclaimer of the devise.
· Deed of Variation.
· Rectification – which is an ‘eye of the needle’ exercise, and is therefore the most expensive option.
To head a probate claim off at the pass, PMA involves:
· Executors instructing counsel to provide an opinion about construction of the will, and the options available for re-structuring, see my article – Back to the future’ – Part 1 – Mediation and the tax-efficient settlement of probate disputes. Taxation (Tolley) 01.03.2022 (and you will find a link on the ‘Publications’ page at www.carlislam.co.uk).
· Having a round table WP Zoom call between Counsel [C’], the executors, beneficiaries and their legal advisors so that C:
(i) As ‘Counsel’, can state his/her conclusions and reasons.
(ii) As a ‘Mediator’, can start and facilitate a conversation between the B’s and the E’s about the options for solving the problem on mutually satisfactory and tax-efficient terms without incurring litigation risks and costs, i.e. so that estate money is spent on fixing the problem instead of fighting each other.
Provided the value of the claim is within my PI cover, and after scoping the work involved, I can quote a fixed fee for this two-stage: (i) written advice; and (ii) mediation service. To enquire please send an email to email@example.com.
See also ‘Mediation of Probate Trust & Tax Disputes’ at www.carlislam.co.uk).