Seven Tips for Best Results

In recent times I have observed that many lawyers and certainly most “people on the street” do not have a clear understanding of the principles of the law and the legal system involved in the field of wills and estates law. If you were to read the daily court reports you would see that the losing legal team in each case more or less “got the case wrong”. Wills and estates law is complex and full of traps for the unwary. There are countless rules and almost as many exceptions to those rules. Little is black and white… most is grey. There are many traps for the participants and their lawyers.

In the following seven (7) paragraphs I have identified some of “the secrets” and if you are involved in a will dispute I think some of my comments may be of assistance to you. I hope much of which I have written will be news to you. The narratives apply to challenging the validity of a will as well as defending a will. They also apply to contesting a will (family provision claims) and defending those claims. I trust you enjoy the reading.

1. Collection of Evidence

If you want the best results you and your lawyer need to collect the best evidence. This might sound obvious to you however identifying the best evidence is a skill learnt from many years’ experience in these matters.

Judges frequently criticize lawyers for including evidence that is either not relevant or not helpful in determining the issues involved. Many lawyers and their clients fall for the trap of thinking the dispute is about the relationship between the “plaintiff” (the claimant) and the “defendant” (who is usually the beneficiary named in the will)… Rarely is that the case.

In most cases the correct evidence required is factual evidence relating to the deceased person. What his or her mental capacity was at any relevant time or what a wise and just will-maker should have done at the relevant time. Sometimes details about the plaintiff and the defendant are absolutely necessary and particularly relevant, however while you are in the process of providing that information you should not let yourself get side tracked from the main focus of the real issues and the real issues will rarely be found in claims and counter claims by the participants about their respective poor family conduct over many years.

2. Negotiations To Settle

If you want the best results you should attempt to settle the dispute before court proceedings are commenced. This negotiation stage can be very difficult and requires careful consideration. You will not know if a settlement offer from the opposition is a fair offer until you have sufficient information and you and your lawyer discuss the available evidence.

Anyone can settle quickly however a quick settlement without proper consideration may mean you accept an offer which is far less than what you may actually be entitled to.

A quick settlement could result in a loss of tens of thousands of dollars. I am not suggesting you need every last little detail about the estate of the opposing parties before you settle, however there are certain details you should certainly have before you settle and all too often opposing parties either withhold information or delay providing information making the possibility of a settlement very difficult.

Most settlements take place at a court appointed mediation where the negotiation process is monitored via the court system and where certain rules are applied.

From my experience, the best place to settle a dispute with some degree of confidence that the settlement is within your best interests is at a court appointed mediation where the parties are required to adhere to the rules of court. You also need to ensure the case is finalized forever by deed or if necessary by court approval.

3. Your Affidavit Evidence

If you want the best results you want your affidavit evidence to be accepted by the court and not struck down because it is not in admissible form, that is, something is legally wrong with the content. The court rules are strict. Affidavit evidence is “your story on oath or affirmation”. In the old days you would go into the witness box at the beginning of a case and spend all day giving your evidence and then remain in the witness box for another hour or more to be cross examined by the opposing barrister. At least you felt you had your say.

Today to save court time your evidence is sworn or affirmed by affidavit in advance of the hearing and served on your opposition before the hearing. Your opposing barrister has plenty of time to list all of his or her objections to your evidence. At the time of the court hearing you go into the witness box to be cross examined on your evidence (as contained in your affidavit).

If you were to sit at the back of the court one day and listen to a court case and the rulings by the Judge on affidavit evidence you would understand the difference between a good and a poor affidavit.

A good affidavit will draw few objections whilst a poor affidavit will draw countless objections and the Judge will often delete words, sentences, paragraphs and sometimes many pages from your affidavit.

I have witnessed this process many times. On one particular occasion this happened in one of my cases and our opposition (during the adjournment) settled the case because they were concerned they were left with insufficient evidence to win.

4. At Mediation

If you want the best result at mediation you should to be prepared better than your opposition and have better available evidence than your opposition. You want the most effective legal team representing you to present those facts and to be able to negotiate strongly on your behalf.

All lawyers do not have the same attributes. Whilst this is common knowledge it is nevertheless often overlooked. Some lawyers are good at office work. Some are good presenting a case before a judge whilst others are good at mediating and negotiating. Your lawyer should try to match you with the barrister that best suits your particular case, not just choose their friend.

Every case is different. One of the most critical elements following a settlement at mediation and a trap to avoid is the preparation of terms of settlement or consent orders. Your lawyer must ensure that the “consent orders” that have been agreed upon by the parties and their lawyers are carefully and properly written to ensure there is no argument about them after settlement. Sometimes participants go home and change their minds and the next day try to back away from what has been agreed upon.

So long as the consent orders have been properly written to protect your interests there can be no appeal by anyone (except in the case of fraud or undue influence). This is another advantage of mediation which is unlike a hearing before a judge where the losing party can appeal and the appeal process can delay the finalization of the matter by perhaps another six to twelve months.

If you do not settle your dispute it is possible (if you decide to withdraw from the proceedings) that you will be required to pay the other party’s costs. Yet another reason to ensure you receive good legal advice before you starts.

5. Court Hearings

If you want the best result at a hearing you want to be prepared better than your opposition and to have better evidence than your opposition.

You want the best solicitor or barrister to represent you. Some lawyers are better at hearings than others. Some solicitors are better than others at preparing a case for hearing. The problem is you may not know how good (or poor) your solicitor or barrister is until the final judgment. In the meantime if you think you are going to “have your day in court” and see that justice is done you may be very disappointed. Your personal involvement in a court hearing is limited to sitting in the witness box for about 30 to 60 minutes to be cross-examined on your evidence. You will be very limited to what you can say. For the balance of the proceedings you will sit in the back of the court mostly unable to hear what the Judge and the barristers are saying and if you do hear them you will probably not understand the legal interaction and legal argument.

You will probably wish you had settled the dispute beforehand. Please don’t get me wrong. Unfortunately there are cases you simply cannot settle and in those circumstances you have no choice but to proceed to a hearing.

6. Legal Costs

If you want the best results you want the best financial outcome.

In wills and estate cases the legal costs can amount to anything from $2,000 to $200,000. Frequently the costs are paid out of the estate which naturally reduces the “size of the cake” to be distributed among the family members involved.

In normal court cases (other than wills and estates law) usually the costs are determined by the outcome often referred to by lawyers as “costs following the event”. In other words the loser pays the costs. However in wills and estates law that is not always the case. The court (the Judge) in these cases has more discretion. The main reason for the additional discretion is because this form of litigation is different.

As I have said above, these cases are not usually about the plaintiff and the defendant, they are about the deceased. Nearly all cases are more or less an investigation or an enquiry if you like into the totality of the circumstances of perhaps the testamentary capacity of the deceased or what the deceased as a wise and just testator (will maker) should have done differently (if anything).

In will challenge cases usually your costs will be paid out of the estate of the deceased person so long as your claim has a solid foundation and the “error” that gave rise to the proceedings was “the fault” of the deceased.

In family provision cases (often referred to as a “will contest”) the costs will always be paid out of the estate if you “win” and sometimes (but rarely) even if you lose it is possible for your costs to be paid out of the estate.

Usually if you lose you will have to pay your own costs and quite possibly the costs of the winning party. That’s a very good reason to ensure you receive good legal advice before you start.

7. Choosing Your Lawyer

I’m sure you would not ask your local doctor to give you a heart transplant. You would probably go to a Macquarie Street Specialist.

There are many things to consider when choosing the right lawyer. There have been major changes in the law in the last few years including changes on 1 March 2008 and 1 March 2009 and again on 1 March 2010. You would expect specialist lawyers in this field to be up to date with those changes.

Specialist lawyers will probably know the “secrets” that I have referred to above. I am unable to say whether other lawyers would be as up date as specialists, however you don’t want your case to drag on month after month because your lawyer is too busy with other types of legal work. It is extremely difficult for a lawyer to focus on wills and estates work while also doing other legal work.

You don’t want to be frustrated by not being able to reach your lawyer by telephone to discuss some important evidence. You don’t want to be frustrated by not being kept up to date with the progress of your matter.

When negotiating a costs agreement with your lawyer don’t forget you have a number of options. Legal costs may be fixed, event fixed, capped, payable lump sum in advance, payable monthly, payable at the end, based on an hourly rate or payable conditionally on a successful outcome. Don’t be fooled by immediately choosing the low hourly rate option. If a case goes on for years and years the costs will far exceed a high hourly rate and the case ending in a shorter time frame.

Continue to do your homework on this subject and good luck.

I hope you learn’t something.