Choosing your Resolution Pathway
Ultimately, every estate dispute will end with a document.
It might be an agreement, it might be a court order or it might be a court approval. All roads lead to Rome – but some will be bumpier than others.
How parties approach the journey to that end is really what will make the difference.
If you choose to take a court process, chances are the road will be acrimonious, expensive and lengthy and you could end up with a result ‘imposed’ on you by a judge. If you choose mediation or a collaborative approach, the process, although not always easy, is likely to be less expensive and much more within your control.
You resolution pathways
There are various resolution pathway options available to you during an estate dispute.
We can’t always control or guarantee that a matter will take a certain pathway because that can depend on how other parties respond to suggestions of the out-of-court settlement options.
What we can guarantee is that we will make the process a calm and compassionate one for you.
Hi, I’m Zinta Harris,
the founder of Resolve Estate Law.
I am one of only a handful of collaboratively trained wills and estates lawyers in Qld. If your family wants to take a collaborative pathway, I can help put a team of other collaborative professionals together to best suit your circumstances.
I can also act as a mediator to help your family resolve an estate dispute if you are already on a litigation pathway, but you want to try to reach an out of court settlement with the help of an independent mediator.
And if you fear that litigation is unavoidable but you want a compassionate lawyer who will steer your matter to an early resolution at every opportunity, then I have the experience and resolve to do just that.
What our clients say
One month prior to my husband’s death I was forced into engaging a Wills and Estates professional because of the actions taken by my step children. My local Solicitor referred me to Zinta Harris because he thought I would be well suited with Zinta. How right he was. After my husband passed away I was in touch with Zinta while she was on holiday with her family. She was checking that I was OK, keeping me calm and making sure I was taking deep breaths. The compassion from a complete stranger was overwhelming considering the abandonment I felt from my husband’s family — all over money and their entitlement.
My first meeting with Zinta (two days after the funeral) was an information/fact finding few hours where she was like a human sponge. As raw as the timing was I felt comfortable, at ease and confident discussing every detail of my and my husband’s lives together, business, personal and previous marriages. There were no false promises, she gave me the worst case scenario and then built on what we could achieve. Our objective was to keep away from the courts, one, for the exorbitant costs and two, for my emotional and physical well being. One thing Zinta told me which didn’t make sense at the time was, “I had to find my new normal”.
18 months of dealing with unreasonable family members has been extremely frustrating. Zinta, Concettina and Nanci have kept me sane, helped me stay focused, allowed me to feel comfortable enough to be myself, laugh and be part of their small family. I have come to terms with my “new normal”, kept my dignity all with the help of these lovely ladies who became counsellors, advisors, and friends.
My only advice to any family, especially a blended family, would be – be open with your adult children – they have a part to play in your plans. We weren’t open and the children ended up with a different interpretation of “dad’s wishes” to what their father and I had discussed. Engage an Estate and Wills specialist, like Resolve Estate Law, be specific with your wishes, it will cost a little more but in our situation it would have kept our family together and saved a lot of anguish and money.”
– S. B, Brisbane Contested Estate Client
One of the most common pathways is solicitor-guided negotiation, where each party hands over their legal issues to their solicitor and then asks the solicitors to negotiate an agreement for them.
In my experience, the success (or otherwise) of this approach is dependent on the professional relationship between the solicitors and whether the negotiation is by letter exchange, telephone call or meeting. I have seen how harsh, hurtful, threatening and unnecessary correspondence can derail any negotiations.
Another risk of this type of negotiation is that it can take a long time and the process itself can remove you from the negotiation. So what is most important to you can get lost in transmission.
It is often quicker and more cost effective to consider mediation or collaboration to resolve your dispute, rather than exchanging legal letters for months on end.
Mediation required by the court
The most frequently used mediation in contested estates matters is court-required expert-facilitated mediation. While I personally think this type of mediation could be done much earlier, there is no denying that it has very high settlement rates. The timing of an expert facilitated mediation required by the court is quite late in the court process, when litigation has already begun and affidavits, often containing bitter statements about past events, have been exchanged. In other words, this kind of mediation – usually with an independent expert party as facilitator – comes at a time where there is little hope of restoring family relationships.
Private mediation, however, can be undertaken much earlier in any dispute to see if agreement can be reached to keep family relationships intact. Private mediation is a process where you and your family members agree to engage a mediator, with or without lawyers involved, to help you reach agreement.
The type of mediator used will depend on the issues you are trying to resolve. For example, if you are not able to agree on funeral arrangements and the division of sentimental items or family heirlooms, a psychologist skilled in helping families work through grief might be most appropriate. On the other hand, if legal negotiations have stalled and you are not able to agree on whether the deceased had capacity to make a will or how the estate ought to be distributed, then engaging an estates lawyer who is also a qualified mediator might help reach a resolution most effectively.
As a specialist estates lawyer and nationally accredited mediator, I can help. My “Mediator’s Kit”, sets out my half day and full day mediation rates and my standard terms.
Collaborative law is a relatively new dispute resolution approach to contested wills and estates, particularly in Australia. It is more widely used in other countries like America. It has, however, been used in Australia with great success in family law matters to help separating couples stay out of court.
The collaborative process is essentially a series of meetings held between you, your family members, the executors and everyone’s respective lawyers, much like a mediation. The big difference is that the process is undertaken within a framework where everyone has agreed not to go to court (or even threaten to go to court). All parties enter into an agreement to document this. The process, which is usually run over a series of two-hour meetings, is entirely focused on reaching settlement.
A communications coach is often involved to help all parties. You will each have individual time with the coach, and the coach will usually attend the joint collaborative meetings.
A neutral financial adviser is also engaged to gather in all relevant financial information so all parties have the information needed to make informed decisions. At the collaborative meetings the financial adviser can show you and your family members how variations on proposed distributions can impact each one of you in the future. It is quite eye-opening to see how an ‘equal’ sum of money can have an ‘unequal’ impact when applied in different circumstances. Again, you will each have time with the financial adviser individually, and that adviser will attend the joint collaborative meetings as necessary.
The process works best where all family members have a common goal to try to reach a mutually acceptable agreement, usually because they want to keep family relationships intact or at the very least minimise the cost impact on the inheritance. The process is not suitable if there is deep seated mistrust or a marked power imbalance between the parties, or if any party is out for revenge.
Please contact us to find out whether the collaborative process is appropriate for you.
Your Legal Sherpa
You have probably heard of the Sherpas. The members of this Tibetan people group are renowned for their mountaineering skills and for the support they provide to trekkers and mountain climbers in the Himalayas. For my clients facing their own contested estate ‘Everest’, I talk about selecting themselves a team of ‘Sherpas’ to help them out of their dark valley and to get up the mountain side so that they can take a gauge on their new horizon from that better place.
Your support team
When to engage a collaborative lawyer or mediator
Pre-death Estate Planning
Prevention is better than cure. Properly facilitated family meetings have the potential to strengthen understanding and relationships so that your estate planning can take into account agreements reached with all family members. Having a will done is important, but doing your best to address the expectations and concerns of your family in your estate plan can mean disputes are avoided in the future. We can work with your estate planning lawyer and your financial adviser to help facilitate pre-death family collaborative meetings and do everything possible to help you avoid a future battle over your estate.
Post-death Contested Estates
Legal costs can decimate hard earned inheritances (because costs are often – though not always – paid from the estate asset pool) – so if for no other reason finding a way to come to an agreement as quickly as possible over the distribution of the estate, through collaboration or mediation makes sense. If you and your family wish to try to resolve your estate dispute by staying out of court, I encourage you all to read my book “Rest in Peace – how to manage an estate dispute without inheriting heartache.” It will give you all deeper insight into the process and empower you all with the resources you need to make this pathway a successful one.
Rest in Peace: How to manage an estate dispute without inheriting heartache.
Your next steps
Call us today to discuss which resolution pathway is most suited for you and your family.
Fill out the contact form below for a 15-minute complimentary discussion of your unique situation, your options and next steps.