Do I need to negotiate in my claim against an estate?

Any solicitor worth their salt will advise you to consider negotiation at some point throughout the process of litigating a dispute. This is for two reasons, the first is that reaching an agreement with the other parties without the need for a court trial is usually a much more timely and cost effective way to conclude a case; and further, there is also an expectation from the courts that some reasonable attempts have been made to try and settle a dispute before reaching a hearing.

In contentious trust and probate matters there are often multiple opportunities to try and reach a settlement. At the outset of raising your dispute or claim with the other parties, there is the ability for you tell them the outcome that you want and/or an alternative that would be acceptable to you. This can be your opening offer to settle the case without the need to issue a claim or incur further costs in the case. There is the opportunity for offers to settle to be made in writing throughout the case by any party. This can be dealt with by way of “without prejudice save as to costs” or Part 36 offers, which each have different benefits and implications if not accepted and the offer is not beaten at trial.

IN addition to negotiation by correspondence, settlement discussions can also take place at specially arranged meetings. Alternative dispute resolution (ADR) is a term that is often used in court disputes to refer to methods for trying to settle a case outside of a full trial. The options include mediation, round-table meetings, and Financial Dispute Resolution meetings/hearings (FDR). Each have different benefits and costs associated with them, but it is not unusual for the Court to expect at least one of these methods to be attempted before a final hearing is listed.

The Court expects ADR to be attempted for the reasons mentioned above – that it can often lead to more timely and cost effective solutions. However settlement is not always possible. Sometimes parties are so far apart in their expectations or have obstinate positions on a dispute which will mean they can never reach an agreement. Nevertheless, the Court will want attempts to have been made.

The unreported 2020 case of Rochford v Rochford is a clear example of the Courts taking a dim view of a lack of ADR in a case. This dispute involved an Inheritance (Provision for Family and Dependants) Act 1975 claim by an adult daughter against her father’s estate. The father’s will left the majority of the estate to the claimant’s aunt. The claimant daughter had proposed mediation to the aunt with a view to trying to settle her claim, but the mediation was refused by the aunt and no settlement was reached between the parties before proceeding to trial. The claimant daughter had also made a Part 36 offer which was not improved on at trial. Recorder Williamson QC awarded the daughter an increased legacy from the estate plus her costs on an indemnity basis plus 10%, and a further 5% interest on those costs. The Recorder criticised the aunt for having not agree to take part in the mediation and she was penalised on costs for her rejection of the offer which she failed to beat.

A good solicitor will take you through the negotiation and ADR options throughout a matter and make recommendations on the more suitable method for your type of dispute. They will also advise you on the possible outcomes you may be able to expect in your case, the costs of proceeding to trial versus the costs of ADR, and the risks of the Court making a decision against you’re and having to pay same or all of the costs of the other side. This matrix of variables and advice will be given in such a way that you can make an informed decision at each stage of your case about settlement options or the need to proceed to hearing.