Side agreements, which are expressly confidential, allow the Participants to structure bespoke solutions that are more flexible than court orders, often covering matters that go beyond the direct scope of the contested will.

These agreements are crucial in cases where sensitive family dynamics or complex assets require nuanced resolutions that cannot be easily addressed by a judge.

Side Agreements are used to:

(i) To keep sensitive terms private, particularly in high-net-worth estates or where family reputations are involved.

(ii) To create tailored solutions, such as restructuring trusts or managing non-monetary assets.

(iii) To handle issues that go beyond the court’s jurisdiction, including side deals between beneficiaries or specific arrangements for executor/trustee conduct.

(iv) To manage agreements with beneficiaries who have not actively participated in the litigation but need to be bound by the settlement.

(v) In smaller estates, to prevent the escalation of legal costs that would otherwise diminish the estate.

(vi) To preserve relationships, as they offer a more amicable, less adversarial approach to disputes.

Side agreements must be drafted to clearly express the intent to be legally binding and must comply with contract law principles, including of course – consideration.

While the main agreement might be filed with the court, sensitive terms can remain in a confidential side agreement.

These agreements are often drafted late in the day during Mediation to secure the momentum of settlement.

Note that if terms of settlement provide for a new scheme of distribution of the estate assets, that for implementation, a formal Deed of Variation may also be required.