Whether or not there’s a will, there’s a way

This article first appeared in the December 2021 edition of The Journal of the Law Society of Scotland.

Mediation is likely to lead to better outcomes than litigation when it comes to inheritance disputes, Rachael Bicknell believes. 

Then there is the complexity of succession planning in a modern and less traditional society. The rise of divorce rates and blended families – those brought together by new relationships, resulting in step or half siblings – and families living across jurisdictions with different succession laws, presents many more opportunities for conflict.

When it comes to disagreements over the validity or interpretation of a will, it isn’t the case that the better the drafting, the less likely a dispute. That assumption ignores the significance of emotion in these kinds of conflicts. A relative who has been disinherited, particularly if contrary to their expectations, will frequently refuse to walk away from even the most tightly drafted will or trust, simply because the law may not be on their side.

Disputes in this field are not restricted to contesting a will. It is estimated that two thirds of the Scottish population have not written a will, and disputing rights on intestacy can similarly create significant family conflict. Increasingly, children are claiming their legal rights to non-property assets on the first death of a parent, often at the expense of the surviving parent. And executors can find themselves caught up in valuation disputes, or being sued on allegations of a breach of trust or duty, mismanagement of the deceased’s estate or even negligence.

Strong emotions

The consensus among the speakers at the Law Society of Scotland conference on trusts, wills and executry disputes, was that litigating these claims should be avoided like the plague because they are notoriously complex, time consuming and expensive. This is, in part, explained by the central person being, uniquely, the deceased. They cannot explain or justify the reason for their wishes (unless these are expressly set out in a side letter, which appears to be unusual, even if best practice), or clarify whether they were coerced into changing their will. This can leave surviving relatives with no answers and feeling betrayed, helpless, heartbroken, angry and shocked. All in all, it is easy to see why disputes arising from the death of a family member present some of the most painful and emotionally charged conflicts that solicitors and mediators see.

For that reason alone, trusts, wills and executry disputes are very well suited to mediation. Dealing with the emotional concerns or needs is just as important as dealing with the legal positions and financial demands. Mediation can offer breakthroughs which can disentangle the emotional pain of an inheritance dispute. While mediators are under no illusion that mediation is a magic wand, it can be transformational. It can rebuild relationships between siblings or other family members. It can rehabilitate the testator’s place in the family and restore what they meant during their lifetime to those in dispute.

Counting the cost

There are other reasons too. Inheritance disputes are usually factually and legally complex. They routinely involve multiple parties, multiple witnesses and expert witnesses. Evidence gathering from family members, advisers and carers can be required for significant periods. Obtaining and reviewing medical or social care records can be time consuming and expensive. For complex cases, the “litigation risk” can be very difficult to assess. Winning in court can be far from certain, and legal costs can quickly become disproportionate or even exceed the value of the claim.

It is also not unusual for an inheritance dispute to involve multiple family members even if there is only one claim. Not only does this serve to increase costs; it increases the time it is likely to take to resolve claims in court. A litigated claim or claims can add several years to the time needed to wind up an estate. Mediation offers an opportunity to resolve claims involving multiple family members, or multiple claims between aggrieved relatives.

Then there are the monetary and non-monetary costs of litigating inheritance claims. Legal costs on both (or all) sides can run to tens if not hundreds of thousands of pounds. Mediation can bring about an end to the financial and emotional toll of a dispute by getting to the heart of the conflict at a far earlier stage.

It is rarely always about money and winning. It might be about a particular item of property which has some unknown or misunderstood sentimental value to the claimant. It might be about how one party was treated by other members of the family. It might be about sibling rivalries with each other or with a stepparent. Whatever it is, mediation affords the best chance of giving the clients the closure they need to allow them to move on, and will almost always leave them in a better place than they would be after a lengthy and costly court battle.

Squaring Circles is the trading name of Squaring Circles Dispute Management Limited, registered in Scotland. Registration number SC641319. Registered office at Caledonian Exchange, 19a Canning Street, Edinburgh EH3 8HE.