21 December 2012
Mediation success on will dispute
The contested probate team at B P Collins recently secured another success at mediation in a High Court case concerning the validity of a will.
We acted for one of the three daughters of the Deceased. The son of the Deceased had applied for and obtained Grant of Probate on a will, some 20 years after the Deceased had passed away. The will left the entire estate to the son and was said to have been signed by the Deceased in the months leading up to her death.
Our client challenged the validity of the will on the basis that the Deceased was illiterate, was unable to sign her name and could not have signed the will which had not been validly executed.
We were instructed at a very early stage in the proceedings, as soon as our client became aware that probate had been granted.
We took immediate steps to secure the proceeds of sale of the estate's property by preparing to issue an application for an injunction and then negotiating the terms of an undertaking to freeze the proceeds of sale. Once the primary asset was secure, we launched an investigation on behalf of our client and having concluded that investigation, we then drafted and issued a probate claim.
The Defendant served a Defence and issued a separate counterclaim, saying that, even if the will was found to be invalid, he had an entitlement to the estate under a constructive trust and / or the principles of proprietary estoppel, because he said he had paid for the estate's property and the deceased had promised he would receive the whole estate on her death. In response, we drafted and filed a Reply dealing with the new legal arguments and made a series of requests for further information and documents.
As a result, the Defendant agreed to mediate in November last year. We represented our client at the mediation and acted as her mediation advocate. By mid-afternoon, we had been able to agree favourable settlement terms with the Defendant and his legal team, providing for a substantial settlement payment to be made to each of the Deceased's three daughters, which the daughters all considered reflected a fair distribution of their mother's estate.
Craig Williams (partner)