Family Provision
5. Court-Annexed Mediation
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 23 Jul 2015
- If the matter has been referred to mediation by the court it is known as a ‘court-annexed mediation.’
- Parties are required to enter into mediation in good faith (to act honestly and genuinely) and with a view to compromising and settling the matter where possible.
- Mediation is primarily intended to save time and legal costs. Importantly though it may also serve to salvage any relationship between the parties.
- During mediation the executor or administrator of the estate has the responsibility of presenting other beneficiaries’ (those named in the will) reasons for retaining the benefit left to them under the will.
- Often it is advisable for beneficiaries to engage their own lawyer to present their case.
- It is important to note that if a family provision claim is successful the money to pay that claim must be taken from the estate.
- This has the effect of reducing the value of gifts that other beneficiaries will receive from the estate. In some cases some beneficiaries may lose their entire gift in favour of the claimant.
- Any offer made at settlement must be balanced against the cost of continuing the litigation as even if the claimant is unsuccessful the defendant’s (executor) legal costs will costs will come out of the estate. If the claimant is successful their costs and the defendant’s costs will be paid by the estate. This has the effect of further reducing the amount available for distribution at the same time as adding another beneficiary.
View more Information on Wills & Estates