How we assisted a client with a contentious probate settlement agreement

We recently assisted a client with a contentious probate settlement agreement which avoided a lengthy and costly court procedure and resulted in a suitable settlement agreement which resolved the matter to both parties’ satisfaction.

A contentious probate matter is an “umbrella” term which encompasses any dispute about the way in which a person’s estate is administered after they pass away.

Background

In general, where a dispute arises between two or more parties, a settlement is achieved when the parties manage to reach a mutually acceptable compromise of that dispute. Ultimately, such a settlement is no less binding and final than if the parties had asked the court to determine the dispute. Settlement can occur at any point in the litigation process, from before litigation proceedings have been issued, to any time up until the trial takes place.

Litigation is a costly and time-consuming process and both parties will often be keen to settle the matter at an early stage to save both costs and time. A settlement gives the parties certainty and closure, and avoids the inevitable anxiety of having to wait for a judgment from the court and uncertainty about the outcome which may not be in your favour.

Negotiations with a view to settlement will usually be “without prejudice save as to costs”. This means that the negotiations and any such correspondence or offers made will not be brought to the court’s attention at trial (if settlement attempts are unsuccessful), albeit such negotiations and any such correspondence will be brought to the court’s attention when it comes to assessment of costs in the case at the very end of the matter when the trial has been concluded. Of course, if settlement attempts are successful there will often be no need for a trial or an assessment of costs as these will be dealt with by the settlement agreement itself. Once the settlement agreement has been signed and witnessed (as it will need to be signed as a deed), it becomes a binding contract and enforceable in court in the usual ordinary way if breached by either party.

How we helped

We recently assisted the executors of an estate in relation to pre-action negotiations pertaining to a claim which was being made against the estate by the surviving cohabiting partner of the deceased. We had been engaging in these pre-action negotiations in an attempt to settle a dispute which had arisen between the parties. There were various contentious issues, namely in relation to the right to occupy a residential property, the ownership of a vehicle, and chattels (items) which the executors understood to be personal property of the deceased.

Our strong negotiation tactics and dedication to our client’s matter resulted in a strong settlement agreement being reached which our client was happy with and it was a suitable compromise for both parties to the dispute. Given the dispute was resolved by way of a settlement agreement, there was no longer any need for a protracted and expensive court battle (as well as avoiding the inevitable uncertainty and expense that goes hand-in-hand with such a battle).

How we can help you

It is imperative that prompt and competent legal advice is sought at the outset of any contentious matter so as to mitigate the risk of court proceedings, and to reduce the risk of protracted ill-feeling between the parties, especially if it is a matter in which emotions often run high as is often the case in matters pertaining to contentious probate.

If you have a contentious matter which requires a settlement agreement, we would be more than happy to advise and guide you through the negotiation process and settlement. As always, we will ensure that your matter is dealt with expeditiously, diligently and effectively.