The overwhelming majority of inheritance disputes (often cited at over 90%) settle without reaching a full trial, frequently through Alternative Dispute Resolution (ADR) like mediation. Mediation is a structured, confidential process led by an impartial third party, offering a route that is significantly faster, cheaper, and less stressful than traditional litigation. Courts actively encourage mediation, and an unreasonable refusal to engage can lead to penalties on costs, making it an essential and sensible step in pursuing a Will contest claim.
You Don’t Have to Lose Twice
The decision to challenge a Will often comes with a terrible internal conflict. You are already grieving the loss of a loved one, and the last thing you want is to enter into a protracted, adversarial, and public legal battle with your family. The image of the High Court, rising legal costs, and years of uncertainty is enough to deter even the most justified claim.
But there is a sensible, cost-effective, and dignified alternative: Mediation.
Our expertise is founded on the reality that genuine justice often lies outside the courtroom. Mediation is not a compromise of your rights; it is an empowering tool that allows you to maintain control over the outcome, achieve closure faster, and protect what remains of fragile family relationships.
The Legal Imperative: Why Mediation is Not Optional
The High Court of England and Wales has made it explicitly clear: litigation should be a last resort. The Civil Procedure Rules (CPR) actively encourage parties to use Alternative Dispute Resolution (ADR), and judges have the power to impose financial penalties (adverse costs orders) on any party who unreasonably refuses to engage in mediation.
This means that whether you are the claimant or the defendant in a contentious probate matter, you must be prepared to demonstrate that you have made genuine attempts to settle the dispute outside of a courtroom. Mediation is therefore not just a sensible option; it is often a procedural necessity.
What is Mediation, and How Does it Work?
Mediation is a flexible, confidential, and “without prejudice” process where a trained, impartial third party (the mediator) helps the disputing parties reach a mutually acceptable settlement.
Preparation: Both parties (and their legal teams) prepare position statements outlining their case, the evidence, and their stance on settlement.
The Session: The session is usually held in a neutral location or remotely via video conference. It begins with a joint session, followed by the mediator meeting each party privately in separate rooms (known as ‘caucuses’).
Shuttle Diplomacy: The mediator acts as a shuttle diplomat, carrying offers, counter-offers, and legal arguments between the parties, testing the validity and risks of each party’s case (“reality testing”).
Resolution: If an agreement is reached, it is immediately formalised by the solicitors into a legally binding Settlement Agreement (often called a Tomlin Order), which is then approved by the court, ending the dispute.
The Cost-Benefit: Faster, Cheaper, Less Stressful
The primary benefit of mediation is financial and psychological.
1. Cost-Effectiveness
Litigation costs escalate exponentially with every procedural step (disclosure, witness statements, expert evidence, trial preparation). A full court trial can easily swallow a significant portion of the estate’s value, leaving a pyrrhic victory where the legal fees outweigh the benefit.
Mediation Cost: Limited to the mediator’s fee (split between the parties) and a day or two of solicitor time. This is a fixed, manageable cost.
Court Cost: Open-ended, with the potential risk of paying the opponent’s costs if you lose.
2. Time (Urgency)
Court calendars are congested, and a final trial can take 18 months to 3 years to schedule.
Mediation Time: A session can be arranged and concluded in a matter of weeks or months, providing immediate resolution and allowing the estate to be distributed, giving the family closure.
3. Emotional Control
In the High Court, a judge (a complete stranger) imposes a decision based only on the evidence presented, often missing the complex family nuances.
Mediation Control: The parties remain in control. You decide whether to settle and on what terms. This ability to choose the outcome significantly reduces stress and avoids the emotional trauma of a public cross-examination.
Beyond the Court’s Power: Flexible Solutions
One of the most powerful advantages of mediation is the ability to find creative, flexible solutions that a judge simply cannot order.
A judge can only rule on the validity of the Will or make a financial provision order under the Inheritance Act 1975. A mediator, however, can facilitate agreements that encompass non-monetary elements:
Division of Assets in Specie: Agreeing to divide specific sentimental items, jewellery, or property instead of forcing a sale.
Joint Ownership/Occupancy: For a dependent, agreeing to hold a property in trust or grant a right of occupation for a defined period, rather than a forced immediate sale.
Apology/Acknowledgement: Sometimes, the core of the dispute is emotional. The mediation can facilitate a formal acknowledgment or apology that allows for emotional closure, which the court cannot provide.
This flexibility empowers you to find a resolution that addresses both the legal and emotional components of the dispute.
When is the Best Time for Mediation?
There is no single “best” time, but the consensus among specialists is that mediation should occur once both sides have enough information to realistically assess their position, risk, and costs.
Too Early: Mediation before documents are disclosed can fail because neither party knows the true strength of the other’s case, leading to unrealistic expectations.
Too Late: Waiting until the eve of the trial means you have already incurred huge, often irrecoverable, legal costs.
For most contentious probate cases, the ideal time is after the initial exchange of core evidence but before the costly expert reports and witness statements are finalised. This is the sweet spot where the costs of proceeding become intimidating enough to encourage settlement, but the costs already incurred are not yet prohibitive.
The Authority of the Mediator
Mediators are highly trained professionals—often experienced barristers or senior solicitors—who specialise in contentious probate. They do not give legal advice, but they use their experience to provide a reality check on the likely outcome and cost of a trial. Their objective analysis is a crucial element in helping parties move past emotion and towards a pragmatic solution.
Mediation is Resolution
Contesting an unfair Will is an act of seeking justice, and it doesn’t have to lead to a devastating public fight. By embracing mediation, you are choosing a path that respects your emotional needs while efficiently addressing the legal realities.
The fact that the vast majority of inheritance disputes settle outside the High Court is a powerful testament to mediation’s success. It provides the confidentiality, control, and closure that litigation often denies.
If you are facing an inheritance dispute, don’t fear the courtroom. Focus on the negotiation table. Contact Contest A Will Today for expert guidance on preparing your strongest case for mediation and securing a swift, fair resolution.
Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com
FAQs
1. Who chooses the mediator, and what criteria are used for selection?
The mediator is usually chosen jointly by the solicitors representing both parties. The selection criteria are crucial and typically focus on finding a professional with the right expertise. This means selecting a mediator who is not only a trained mediator but also has substantial, relevant experience as a solicitor or barrister in contentious probate. This ensures they have the authority and knowledge necessary to properly “reality test” the legal risks and settlement figures for both sides.
2. What happens to the legal proceedings if the mediation fails to reach a settlement?
If the mediation session ends without a settlement agreement, the legal proceedings simply resume. The court is informed that mediation has occurred, but because the process is confidential and “without prejudice,” the judge is never told why it failed (who offered what, or what was said). The parties then proceed with the next step in the litigation timetable (e.g., preparing for the trial or exchanging final witness statements). The failure does not prejudice your case, but it does confirm the need for judicial intervention.
3. What is the legal status of the Settlement Agreement reached during mediation?
If the parties successfully agree on terms during mediation, those terms are immediately drafted into a binding document called a Settlement Agreement (often structured as a Tomlin Order). Once signed, this agreement is legally enforceable, just like a court order. This swift finality is a major advantage, as it quickly concludes the dispute, allows the Executor to distribute the estate according to the new terms, and grants both parties emotional and financial closure.
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Frequently asked questions.
Can A Will Be Contested?
Disputes over wills can arise in several circumstances, including:
Testamentary capacity: The person who made the will (known as the testator) must have had the mental capacity to understand what they were doing and the consequences of their actions. This means that they must have been able to understand the nature and extent of their property, the people they were giving their property to, and the people they were excluded from their will.
Valid execution: The will must have been executed correctly under the law. This means it must be in writing, signed by the testator, and witnessed by two independent witnesses.
Undue influence: The testator must have made the will freely and without any pressure from others. The will may be invalid if someone was unduly influenced to make a will. Undue influence can occur when someone takes advantage of a testator’s vulnerability, such as if the testator is elderly, ill, or has a mental disability.
Fraud or forgery: If the will was forged or if someone fraudulently induced the testator to make the will, the will may be invalid.
Claims against a will must usually be made within six months of the grant of probate being issued. This is the legal document that gives the executor the authority to administer the estate. If a claim is not made within this time, it may be too late to challenge the will.
As such, executors often wait until this six-month period has expired before distributing the estate. This is to avoid having to distribute the estate and then having to take it back if a successful claim is made against the will.
Here are some examples of how these disputes can arise:
A family member may dispute a will if they believe that the testator did not have the mental capacity to make a will. For example, if the testator was suffering from dementia or Alzheimer’s disease at the time the will was made.
A family member may dispute a will if they believe that it was not executed correctly. For example, if the will is not signed by the testator or if it is not witnessed by two independent witnesses.
A family member may dispute a will if they believe that they were unduly influenced to make the will. For example, if a caregiver or another family member pressured the testator to make the will in their favour.
A family member may dispute a will if they believe that it was forged or if someone fraudulently induced the testator to make the will. For example, if someone forged the testator’s signature on the will or if someone lied to the testator about the contents of the will.
If you are thinking about disputing a will, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.
What are the different Types of Trusts?
Types of Trusts
Many different types of trusts can be set up, depending on your specific needs and goals. Some of the most common types of trusts include: Bare Trusts: A bare trust is a simple type of trust in which the trustee holds the assets for the benefit of the beneficiary. The beneficiary is entitled to the income and capital of the trust as soon as they are old enough to receive them.
Interest in Possession Trusts: An interest in possession trust is a type of trust in which the beneficiary is entitled to the income from the trust immediately, but not to the capital until a later date. This type of trust is often used for minor beneficiaries or for beneficiaries who are not yet responsible enough to manage their own money.
Discretionary Trusts: A discretionary trust is a type of trust in which the trustee has the discretion to decide how and when to distribute the income and capital of the trust to the beneficiaries. This type of trust is often used for families with multiple beneficiaries or beneficiaries with special needs.
Accumulation Trusts: An accumulation trust is a type of trust in which the income from the trust is accumulated and not distributed to the beneficiaries until a later date. This type of trust is often used to save for a specific purpose, such as a child’s education or a retirement fund.
Mixed Trusts: A mixed trust is a type of trust that combines elements of different types of trusts. For example, a trust may be a discretionary trust for one beneficiary and an interest in possession trust for another beneficiary.
Settlor-Interested Trusts: A settlor-interested trust is a type of trust in which the settlor (the person who creates the trust) retains some interest in the trust assets. For example, the settlor may retain the right to receive income from the trust or to appoint the trustee.
Non-Resident Trusts: A non-resident trust is a type of trust that is created and governed by the laws of a country other than the country where the settlor or beneficiaries reside. Which type of trust is right for you will depend on your specific needs and goals. It is important to consult with an estate planning attorney to discuss your options and choose the type of trust that is best for you. Here are some examples of how different types of trusts can be used: A bare trust can be used to hold assets for a minor child until they reach the age of majority.
An interest in possession trust can be used to provide income to a beneficiary who is not yet responsible enough to manage their own money.
A discretionary trust can be used to manage assets for a family with multiple beneficiaries or for beneficiaries with special needs.
An accumulation trust can be used to save for a specific purpose, such as a child’s education or a retirement fund.
A mixed trust can be used to achieve a variety of different goals, such as providing income to one beneficiary and preserving capital for another beneficiary.
A settlor-interested trust can be used to retain some control over trust assets after the settlor has created the trust.
A non-resident trust can be used to reduce estate taxes or to protect assets from creditors. It is important to note that this is just a brief overview of the different types of trusts. There are many other types of trusts available, and each type of trust has its own specific features and benefits. For more information please visit www.gov.uk/trusts-taxes/types-of-trust
What are Examples of Inheritance Trust disputes?
Inheritance trust disputes can be complex and varied, but some common scenarios include:
Disputes over the validity of the trust: This can happen if the settlor (the person who created the trust) does not have the mental capacity to create a trust, or if the trust deed was not executed correctly.
Disputes over the interpretation of the trust deed: If the trust deed is poorly drafted or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.
Disputes over the appointment or removal of trustees: Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee is not acting in the best interests of the beneficiaries, the beneficiaries may apply to the court to have the trustee removed.
Disputes over the investment of trust assets: Trustees have a legal duty to invest trust assets prudently. If a trustee makes investments that are too risky or that lose money, the beneficiaries may sue the trustee for breach of duty.
Disputes over the distribution of trust assets: Trustees have a legal duty to distribute trust assets to the beneficiaries in accordance with the terms of the trust deed. If a trustee distributes trust assets incorrectly, the beneficiaries may sue the trustee for breach of duty.
Here are some specific examples of inheritance trust disputes that have occurred in the UK:
In one case, a beneficiary disputed the validity of a trust deed on the grounds that the settlor (the person who created the trust) did not have the mental capacity to create a trust at the time it was set up.
In another case, a beneficiary sued the trustees for breach of duty after the trustees made a number of risky investments that lost money.
In a third case, a beneficiary sued the trustees for breach of duty after the trustees distributed trust assets to the beneficiaries in a way that was not in accordance with the terms of the trust deed.
Other possible disputes include:
A beneficiary was expecting more than what is set out in the trust document. This may be because the beneficiary had a reasonable belief that they would receive more, or because the trust document is unclear about the beneficiary’s entitlement.
The individual who set up the trust was provided with negligent or misleading advice. If the settlor was not properly advised about the consequences of setting up a trust, or if they were given incorrect information, they may be able to challenge the trust.
The trust document is either incomplete or unclear about the wishes of the deceased. If the trust document is incomplete or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.
A trustee acts against the best interests of the beneficiary or doesn’t administer the trust correctly. Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee breaches their duty, the beneficiaries may sue the trustee.
If you are involved in an inheritance trust dispute, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.
What’s the difference between contesting a will and contentious probate?
Contesting a will is challenging the validity of a will. This can be done on a number of grounds, including.
The testator (the person who made the will) did not have the mental capacity to make a will.
The will was not executed correctly, i.e., it was not signed by the testator or witnessed by two independent witnesses.
The testator was unduly influenced to make the will.
The will was forged or fraudulent.
Contentious probate is any dispute about the administration of a deceased person’s estate. This can include disputes about
The validity of the will.
The interpretation of the will.
The appointment or removal of executors.
The distribution of the estate assets.
The management of the estate.
In the UK, contentious probate is dealt with by the High Court.
The main difference between contesting a will and contentious probate is that contesting a will is specifically challenging the validity of the will, while contentious probate can include a wide range of disputes about the administration of an estate.
Here is an example:
Contesting a will: A beneficiary challenges the validity of a will on the grounds that the testator did not have the mental capacity to make a will.
Contentious probate: A beneficiary disputes the interpretation of a will and argues that they are entitled to a larger share of the estate than they have been given.
It is important to note that the two terms are often used interchangeably. For example, a lawyer might say that they are “dealing with a contentious probate matter” when they are actually challenging the validity of a will.
If you are thinking about contesting a will or pursuing a contentious probate claim, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.
How Long Do You Have to Make a Contentious Probate Claim?
The time limit for making a contentious probate claim in the UK is six months from the grant of probate. This is the legal document that gives the executor the authority to administer the estate.
If you do not make your claim within this six-month time limit, you may need to apply to the court for permission to make a late claim. The court will only grant permission if you have a good reason for not making your claim on time.
There are a number of factors that the court will consider when deciding whether to grant permission for a late claim, including:
Why did you not make your claim on time?
The strength of your case.
Whether the other beneficiaries will be prejudiced if your claim is allowed to proceed.
If the court grants you permission to make a late claim, you will need to file your claim within 28 days.
It is important to note that there are some exceptions to the six-month time limit. For example, if the executor has committed fraud or concealed assets from the beneficiaries, the beneficiaries may be able to make a claim after the six-month time limit has expired.
If you are thinking about making a contentious probate claim, it is important to seek legal advice as soon as possible. A lawyer can assess your case and advise you on the time limits that apply and whether you have a good case.
Here are some examples of when you might be able to make a late contentious probate claim:
You were not aware of the death of the deceased until after the six-month time limit had expired.
You were unable to make your claim on time because you were ill or incapacitated.
The executor has deliberately concealed information from you about the estate.
The executor has committed fraud in the administration of the estate.
The 12-year limit for making a contentious probate claim in the UK applies to claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. This means that if you are making a claim for financial provision from an estate, you must do so within 12 years of the date of the deceased’s death.
The reason for the 12-year limit is to encourage people to make their claims as soon as possible after the deceased’s death. This is because it can become more difficult to investigate and prove a claim after a long period of time has elapsed.
If you are unsure whether you are able to make a late contentious probate claim, you should seek legal advice.
Do I have to go to court to contest the probate?
Most disputes in the UK are resolved out of court through mediation and negotiation. This is because it is generally faster, cheaper, and less stressful for all involved.
If you are considering disputing a will, it is important to contact a contentious probate specialist before you involve any other relatives or beneficiaries of the estate. A specialist lawyer can advise you on your legal options and help you to resolve the dispute quickly and efficiently.
Here are some of the benefits of resolving a will dispute out of court:
It is faster and cheaper than going to court.
It is less stressful for all involved.
It allows you to maintain relationships with other family members and beneficiaries.
You have more control over the outcome of the dispute.
There are a number of steps that you can take to try to resolve a contentious probate dispute without going to court, including
Negotiation: You can try to negotiate a settlement with the other parties to the dispute. This may involve making concessions on your part, but it can be a good way to avoid the time and expense of court proceedings.
Mediation: Mediation is a process where an independent mediator helps the parties to reach a mutually agreeable settlement. Mediation can be a good way to resolve a dispute without going to court, but it is important to note that it is not binding on the parties.
Arbitration: Arbitration is a more formal process than mediation, and it is binding on the parties. However, it can still be a good way to resolve a dispute without going to court.
If you are unable to resolve the dispute amicably, you will need to file a claim with the High Court. The court will then hold a hearing to decide the case.
