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Probate & trusts

Probate

When someone dies the distribution of their estate is either carried out pursuant to a will or, if there is no valid will, under an intestacy (who benefits under an intestacy is specified by statute). A will must comply with strict formal requirements for signature and witnessing and the person making the will must understand the effect of the will and have the mental capacity to make a will. These and other requirements often lead to disputes between about whether a will is valid, particularly where a new will is made shortly before death.

Feelings often run high about who will benefit. Litigation is an expensive option and mediation may enable the parties who are likely to be members of the same family to reach an agreed solution.

Replacement of executors who are alleged to be failing in their duties

Although only the court can replace an executor who is failing in their duties, the parties to the dispute can take the issue to mediation and reach an agreed solution which the court will invariably endorse. This is far preferable to contested proceedings in which personal allegations are made. In the case of professional executors allegations concerning a failure to administer the estate can be resolved largely in private.

Inheritance Act claims

Generally, a valid will permits the person who made it to pass their estate in whatever way they wish. For example, the estate may be left to one family member only or charities. The freedom given by the general law can be overridden in some circumstances by the Inheritance (Provision for Family and Dependants) Act 1975. The provisions of the Act are complex and claims often involve disputes about family history and their financial arrangements. In many cases, parties are fighting over a pot of assets that is not large compared to the costs of litigation, and it is common for the estate to bear some or all of the costs.  Early resolution of the claim at a mediation benefits everyone.

Trust claims

Disputes frequently arise between the trustees of a trust and beneficiaries under the trust. The beneficiaries may feel that the trustees have not managed the trust’s assets properly or have failed to act in accordance with their powers. The beneficiaries may wish to replace the trustees.

Mediation provides a private and less adversarial setting for resolving trust disputes.

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Three Stone Mediation