Why mediation could be the right option to solve disputes around Wills...

In many cases a Will may not provide the closure that the Will-maker intended it to provide. It can be common for a Will to be contested, and given the family-orientated nature of most Wills, personal relationships are often strained during such processes.

In New Zealand a parent does, in most cases, have a moral duty to provide proper maintenance to their children, through their Will.

It is common for a child to feel as though they are entitled to more than they are to receive from their parent’s Will, and many Wills get contested as a result of this.

The traditional way to contest a Will is by applying to the High Court. The Court will then after hearing all of the provided evidence, decide what you are entitled to and make an order to that effect.

More often than not, one party’s gain from court proceedings regarding a Will is another party’s loss. This inevitably leads to tension between siblings, and can cause irreparable damage to family units.

One alternative to court proceedings is mediation. Mediation is a process which involves a meeting with all parties, and a selected third party mediator. This third party must be impartial, and has the role to assist the parties in negotiating with each other and reaching an agreement.

Mediation is a problem-solving activity, and is far more collaborative than a court proceeding. The goal of mediation is to reach an outcome that works for all parties, in a way that also preserves the relationships between the parties as much as possible. In matters regarding a Will, it involves a negotiation about the division of the deceased’s assets outside of the express terms in a Will.

Mediation differs from court proceedings in that the mediator cannot issue a binding resolution, and parties are there voluntarily. This can be good, as it shows that parties are willing to participate and work through the issues, and the lack of a binding resolution can make parties feel more comfortable in their negotiations.

Mediations are also usually “without prejudice”, so parties can be free to make proposals intended to assist reach a settlement they may not want to stand by if a Court hearing still remains necessary.

This does however mean that parties to a mediation can leave at any time as there is no requirement to be there, and the lack of a binding resolution can mean that parties agree to something at the mediation, but decide later that they no longer want to follow through with what was agreed if a settlement is not recorded at the mediation.

Mediation is also generally less expensive, and far less time-consuming than Court proceedings. This means that in situations where parties are strapped for cash, or need a timely resolution, mediation can be a far more effective option than Court proceedings.

It is up to the beneficiaries of a Will to decide on the best way to deal with disputes around the Will. If you are confused about your options in solving such a dispute, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively Will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins and Matthew Binnie

Litigation Team
Wellington