Mediation works very well for Will disputes. A recent case to demonstrate this involved a deceased father and the severance of the joint ownership of the marital home occupied by his wife and son.
Written by Colin Smith, Solicitor & Mediator at Leonard Gray.
I have changed the names of the parties and some of the facts to preserve anonymity. However the basic problem was as follows :-
Joe and Nadine had been married for around 11 years. They had a 9 year old son, Lance. Joe and Nadine’s marriage had run into trouble. Divorce proceedings had been issued by Nadine. Joe had moved out. A few weeks later Joe was diagnosed as having cancer and passed away within a few months. He made a Will leaving all his estate to Lance. He also severed the joint ownership of the marital home occupied by Nadine and Lance. The legal effect of this meant that instead of Nadine and Joe holding the property as joint owners (so Nadine would have inherited it on his death) Joe’s 50% was to be held in trust for Lance.
Nadine was aged 42. Joe was aged 43 when he died. One of the tragic things about the case was that they had started to go to Marriage Guidance sessions before Joe was diagnosed. Nadine was grieving, confused and apprehensive about the future. Joe’s brother and sister who were at the mediation as his Executors, were sympathetic to Nadine but wanted to honour Joe’s wishes as far as possible. They worried that if Nadine married in the future then Lance may not inherit anything.
Nadine attended Mediation with her mother, Solicitor and Barrister. Joe’s brother and sister, Pete and Carol, attended with their Barrister and Solicitor. By agreement we dispensed with a round table opening and speeches by the Barristers. There was no animosity between Nadine, Pete or Carol. Everyone agreed that Lance was their main concern. Nadine wanted to be able to move houses if she wished without complication. She thought that if she and Joe had not got back together there would have been a financial settlement in divorce where she would have had the house transferred to her in lieu of Joe’s pensions and possibly in lieu of maintenance for herself after Lance was 18.
As it was she was making a claim against Joe’s estate as she was not mentioned in the Will but Lance was clearly a dependant. Her own position was less clear cut because she was working and her earnings, together with benefits, met her own and Lance’s needs including the expenses of running the house.
I spent 10 minutes with each party at the beginning establishing their positions and possible “best alternatives” to achieving 100% of what they were claiming.
I explained to everyone that I would carry only information and suggestions for settlement which they authorised me to at the end of each meeting with them. I would keep confidences. They had to understand, however, that I may be keeping confidences for the other party as well. Everyone was fine with this. Nadine’s opening position was that she wanted the house transferred to her entirely plus maintenance for Lance from any death benefits he had under insurance policies or pensions. As it turned out, Joe had a tiny pension with no benefits for dependents after his death. Joe’s main asset had been his interest in the home Nadine and Lance were occupying. Nadine valued her relationship with Joe’s relatives. She wanted Lance to feel that he could spend time with Joe’s family including grandparents and Pete and Carol’s families.
Pete and Carol wanted to respect Joe’s wishes. They felt he would have had good reason for cutting Nadine out of his Will when they separated. Pete and Carol expressed the view that they wanted what was best for Lance as they felt that was what Joe would have wanted.
Solicitors and Barristers were very helpful, explaining that if the matter continued to litigate then each party could expect legal costs of around £20,000 each to take the matter to a final hearing without any certainty of success.
The parties worked steadily over the 3 hours identifying their goals, and I was able to refer to Lance as the “Crown Jewel” whose interest everybody needed to bear in mind. This allowed Pete and Carol to shift their position to that where they felt they were looking after Lance’s interests rather than Joe’s.
Lance’s interests were best served if he was able to continue to live with his mother, having full access to his father’s family and a secure home.
Nadine’s needs were looked at and considered. The equity in the house was sufficient for her to, if need be, sell up and buy another smaller house mortgage free in the future. Otherwise, she might use the equity in the house, together with a mortgage based on her own income, to purchase elsewhere should the need arise. She had no immediate intention of selling up. She also wanted the flexibility of allowing a lodger in if needed to boost her income.
In the end the parties agreed that there would be a deed drawn up where Lance had an interest of 30% in the matrimonial home and Nadine had a 70% interest. Lance’s interest would be portable and secured on any future property which Nadine moved to using the 30% attributable to him. Otherwise Nadine would try to purchase a property using her 70% plus a mortgage so as to allow Lance’s 30% to be paid into a trust fund which could be used for his advancement whilst he was young and paid to him when he reached 21.
Feelings at the end of the day
Pete and Carol wanted to talk to Nadine direct. Nadine fully agreed. There was quite an emotional meeting at our premises where all 3 were crying and hugging each other. I felt this boded well for Lance. The legal representatives were all pleased because this was a complex case, there was no certainty of outcome and an honourable resolution had been reached which their clients were pleased with.
So once again this was a case where all the parties were winners including Lance, aged 9, who had a secure trust fund as his father hoped for. Matters had just needed tweaking so that Nadine and Lance’s needs were fairly met.