A famous comedy sketch of the 1960s features the family lawyer, reciting the provisions of the will of a wealthy deceased patriarch, to the assembled grieving family. After listing the many and generous bequests to all members of the family, the lawyer finally comes to the deceased’s brother-in-law:
“And to my brother-in-law, Louis, who lived with us all of his life, who never had to do a day’s work… who only smoked the finest cigars – mine. To my brother-in-law, Louis, who all my life said ‘I will never remember him in my will’:
Hello Louis.”
The constructive trust challenge
What are the odds that Louis (had he ever existed) would have felt aggrieved at receiving nothing, other than the deceased’s acknowledgment? Had he fallen within the provisions of the Inheritance Act 1975, (which he did not) he could have made a claim for reasonable provision, notwithstanding the omission. But, often, the provisions of a will are challenged by taking the constructive trust route. In my experience as a mediator, these disputes (together with boundary disputes in respect of both commercial and residential property) are among the most heavily charged and emotion-laden of all property or property-related claims.
The constructive trust challenge to the will, frequently features one family member arguing that the dispositions in it have been overridden by a subsequent promise by the deceased, to the effect that part of the estate will be left exclusively to that family member. That part may be an investment property or properties, or it may be the former family home.
The challenge is sometimes mounted on the basis that the deceased parents were cared for in their declining years, predominantly by the claimants, and that they made sacrifices and injections of their own capital, in favour of the deceased. Maybe they gave up their jobs to provide the care? Perhaps they carried out improvements, or built a new extension or floor, to accommodate the medical needs of the ailing parents. Maybe they took them on vacations or funded them. Job offers elsewhere were rejected so that the primary job of parental care could continue.
The claimants will contend, sometimes with some supportive evidence, that the deceased firmly promised this preferential treatment, to be enjoyed on their demise, on the strength of which the claimants went well beyond that which could normally be expected from ordinary love and affection for a parent.
The emotional maelstrom
One only has to state ingredients of this kind or similar in a dispute, for it to be easily imaginable how high the emotions in the family will run. Court disputes of this kind are notoriously lengthy, heated and embittered. Baggage which we all have in our family histories, is pushed into the foreground, and set alight in such a way as to immolate any prospect of future family harmony – or even civility. The further the litigation grinds on, the more family relations are left in tatters. Moreover, it becomes impossible for in-laws and family friends or associates, not to be drawn into the fray. It is about as painful as it could be.
The other way
At the risk of readers thinking “He would say that, wouldn’t he?”, there is a better way. Resolution of these disputes in the mediation forum has some special advantages over litigation. One is that the passion thrown up in such disputes can actually be harnessed to find a way through. Those siblings are never going to do a deal from opposite sides of the courtroom, and with costs now at such a level that they are obligated to go on, and potentially lose as much as, or a large part of, what the disputed property is worth.
Litigation is not always well suited to the possibility that both sides may have some truth and merit in their case. What if the promise was made – but not to the extent alleged? What if “the truth” lies somewhere between the account of the opposing sides, but that “truth” is not an account which either side has pleaded, advocated or contended for? What if there was another package which the parties could have put together, which would have ticked enough boxes for them to say “OK, I can live with that”?
The deal
Many mediators in the property/commercial dispute field will have seen, as I have, two close family members at loggerheads, who go off to a separate breakout room together. This after a long day of blood-letting and very straight talking. Subsequently, these two perhaps hardened, street-wise businessmen emerge, after a lengthy session (sans mediator, sans lawyers) wiping tears from their faces, but having done a deal. We will have no idea what went on inside that room, (nor could we say if we did), but the medium of the managed conversation which is mediation, enables people to find their way. True, after such high tension mediations, there may be no hugging session – but there is generally a real sense that much of the poison which has been swilling around before the conversation started, has drained away.
Not all challenges to the will are as groundless as would have been that of Louis. Mediation helps the parties to find their own way through a morass of fact and emotion, culminating in saved time, costs, and, just as importantly, relationships.
Stephen Shaw is a barrister and mediator at www.stephenshawmediation.com
