Estates disputes and claims can arise for many reasons but common situations are where:
- someone has been left out of a will and they are entitled to make a claim;
- someone has not been adequately provided for under a will and they are entitled to make a claim;
- a will is not clear as to what it means;
- a will was not read and understood by the will maker;
- the will maker did not have capacity when they made their will;
- there has been conduct (unconscionable or coercion) that has influenced the outcome of a will;
- there are suspicious circumstances around the preparation and signing of a will.
Many estate disputes involve a complex web of business, property and superannuation and the issues that arise from those things. As a wholly owned division of Sydney Business Lawyers, Sydney Estate Planning Lawyers and its dedicated team is very well placed to assist you with the resolution of your needs.
Initial assessment of dispute or claim
At the outset of any dispute or claim about an estate, we:
- seek to provide our clients with a prompt and thorough assessment of their position; and
- then work with them to agree a strategy to:
- identify and minimise risks; and
- explore ways in which to provide a solution that is as cost effective and timely acceptable as possible in the circumstances.
Despite that, there is only so much that can be done to avoid the expense of an unresolved dispute that is left to a court to decide the outcome.
If a dispute is going to end up in court, it is best to get a barrister involved at the outset. Most people think that barristers are very costly. Unfortunately, legal disputes are costly but a barrister can be relatively cost effective when they are good at what do. We have a network of great barristers who we work with and our view is that they are all incredibly good value for money.
Alternative dispute resolution through mediation
Alternative dispute resolution through mediation may deliver a more cost effective outcome than a court based dispute. However, that will only deliver an outcome if the parties can reach a settlement between them.
Mediation is where an independent third party meets with the parties to the dispute to help them try to settle their dispute. The third party is often a retired judge, a trained mediator or perhaps a barrister who specialises in mediating disputes.
No matter what, the court is going to require mediation to have first been attempted before a hearing of a the dispute in the court is going to be permitted.
Legal costs of making the claim
Often the costs of making a claim involving an estate are paid from the estate particularly where the court action has arisen from the actions of the will maker. However, there is no guarantee that will be the case and so care should be taken if you are relying on that happening.
There is no certainty in the law!
- if you think that your claim is water tight, there is no guarantee that you will get a decision in your favour – there is no such thing as a sure thing in the law;
- in successful court action, it is not normal to recover 100% of your legal costs;
- if you win, if the other party does not satisfy the judgement and pay your costs, you have to take action to enforce your rights under the judgement and “you cannot get blood out of a stone”;
- if you win, you will never recover the cost to you of the personal anguish and lost time from being involved in a dispute.
So you should do whatever you can do to avoid being involved in a court based dispute or claim.
Our aim is to keep clients out of court if at all possible. Our commitment in any unavoidable dispute is to deliver the best result and the most affordable outcome. However, some disputes are left to be resolved through the courts.
If you would like any assistance with estate dispute resolution please contact us at Sydney Business Lawyers on 8915 4900 or firstname.lastname@example.org