Estate Litigation – Family Reflections on Their Litigation Experience

Estate Litigation – Family Reflections on Their Litigation Experience

As you would expect, many people who are embroiled in an estate litigation ask themselves these two key questions at some point:

  • how did we, and this estate, get here?; and
  • what could have been done to avoid this?

The reality is that estate litigation often takes longer than six months to finalise, and in many cases may take one to two years.  In turn, estate litigation often holds up the administration of the estate through to distribution whilst the proceedings are in the course of being argued, thus having a cumulative effect on the total time to finalise the estate.

These extended timeframes will contain myriad key dates or events that may be triggering to families e.g., birthdays, anniversaries, celebrations, and family events such as holidays, with many wondering whether those happier days would ever return for their families, and whether relationships could be mended.

As a general rule, if an estate litigation runs for longer than two years, the parties could be well advised to start looking at their own actions and beliefs, rather than the actions and beliefs of others, when considering what the barriers to resolution are.  Certainly, the long-term effects on family relationships of an estate litigation of this duration may be more disastrous without this self-reflection.

When considering the two questions posed above, conversations between interested parties around understanding and expectations from the deceased’s estate may assist.  For example, these conversations may often involve parents and their children (and/or stepchildren), but shouldn’t be limited to family and could involve any person or entity (as in the case of charitable gifts) named in will.

Even in cases where a parent or parents make their own financial decisions and do not wish to discuss the legacies other than perhaps to say their children and/or stepchildren would each take equal shares, a sibling communicating that they had a different expectation and their reasons for holding that expectation may make a tangible difference.

Family Provision applications (“FPA”) are not the only avenue for estate litigation. In relation to the will itself, other common disputes may involve errors or mistakes in the making of the will itself, the testamentary capacity of the testator, whether the testator has been unduly influenced, or whether there are suspicious circumstances apparent.

Another category linked to an estate are possible breaches of duty by an attorney e.g. under an Enduring Power of Attorney.

Estate litigation may also ensue where interested parties, often beneficiaries, form the view that the executors or administrators are not administering the estate in line with their duties e.g., not in accordance with the terms of the will or intestacy rules, too slow, or not providing sufficient communication with the beneficiaries as to the progress of the estate’s administration.

Estate litigation is costly to an estate and may also be costly to parties in their personal capacities.

Whilst clear and effective communication may not always avert litigation, in many cases it may reduce or negate the need to resort to this mechanism for redress.

If your family is in the process of planning an estate, discussing an estate, or unfortunately administering or litigating an estate, you may consider using the holidays as a communication opportunity to discuss or plan to discuss these matters with your loved ones.

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