Regardless of whether you are an executor of an estate, you have been left out of an estate, or you are a beneficiary having problems with an executor, the decision you make in choosing a lawyer to assist you is an important one.
There are three critical elements to consider when you are selecting a lawyer to assist in wills and estate disputes.
Firstly, you need a lawyer who practices and has experience in Estate Law. Secondly, you should select a lawyer who has a good grasp of dispute resolution and in particular good mediation skills and you also need somebody who has experience in litigation, even if you have no intention of ever going to Court.
Unless your lawyer has all three of these skills you will not receive the best and most comprehensive advice. This article explains why all three elements are critical and I will also share some questions to ask and actions to undertake, to get the best possible outcome for your circumstances.
Where to look first
When you are seeking a lawyer, below are some actions I recommend you consider:
- Check with your local Law Society for a list of lawyers who work specifically in Wills and Estates
- Research the Doyles Guide awards. These awards are presented to lawyers who have been nominated by their peers as leaders in their profession; and
- Seek out lawyers who are dedicated Wills and Estate lawyers.
It is important to find out if your lawyer is working in the area of estate disputes regularly. When you search for possible lawyers online, see if the law firm displays itself as having a dedicated practice in wills and estate planning as well as dispute resolution and litigation. When your lawyer works across all of these areas, they are likely to have the breadth of knowledge required to assist you.
While you may have an existing relationship with a solicitor who has helped you with other matters, it is recommended that you avoid using a general practitioner lawyer for matters relating to estate dispute. You should engage someone with the depth of understanding of the relevant laws and is undertaking this type of work on a daily basis.
Questions to ask
When you first phone a law firm to enquire, I recommend you ask more than just ‘how much will it cost?’ The cost will vary depending on a range of factors in any law firm. I recommend you ask qualitative questions such as:
- Do you help with ‘(insert issue or problem here)’?
- How much of this work do you do?
- Do you only do Estate Disputes?
- What other type of work in this area do you do?
- How many people in your office do this type of work?
- Would you or someone else be assisting me?
The idea is to determine if a specific person or team is dedicated to this area of law.
It is also wise to ask whether the lawyer or firm has experience in the jurisdiction involved. There are differences in the legislation about Family Provision Claims in the ACT and NSW for instance, so a comprehensive understanding of the differences in the legislation is important.
Related: Who can make a family provision claim? – ACT & NSW
Why you should consider an Estate Litigator
You may wonder why you should consider an experienced litigator, particularly if you have no intention of going to Court.
Someone who is experienced in estate litigation has better knowledge and experience of possible outcomes and in the event that your matter cannot be resolved, your lawyer will be sufficiently equipped to support you through your matter. In the event that your matter does go to Court, you want someone who is aware of what going to Court means in terms of process, cost and time frames. You also want someone who understands and can explain to you, the possible risks of going to Court.
A lawyer who is experienced in going to Court for estate disputes will also have additional insights such as the views and attitude of the Judge who will be looking at your case, how they are likely to respond (based on previous judgments), as well as how the opposing lawyer is likely to respond in particular circumstances. It is one thing to be a great estate planner and to know the Family Provision Act backwards but unless your lawyer is a specialist in litigation you are not going to get the best advice and representation.
Dispute Resolution
Going to Court is only one way of resolving an estate dispute. Many disputes are resolved outside of the Court system and even where court proceedings are commenced the dispute will be resolved without the need for a court hearing.The Courts now refer almost every estate dispute to mediation and will not entertain a final hearing unless the parties attend mediation. A significant proportion of matters are resolved at mediation. Accordingly, it is important that you select a lawyer who has experience in dispute resolution, particularly in mediation. Mediation is an entirely different process to a court hearing and the skills required of a good and effective mediator are very different to the skills required of a good litigator.
There are a surprising number of lawyers who work in the Court system and litigate but do not have any training or skills in mediation and dispute resolution. So ensure that the lawyer you choose has these requisite skills and experience by asking some direct questions.
What to do first
It is wise to meet in person or online with any lawyer before engaging them.
When clients come to us for second opinions, we often hear them complain that they are either not getting the progress in their case they had hoped for; that they don’t feel listened to; or that they have lost confidence in their lawyer. The relationship between lawyer and client is key and the key to a good lawyer/ client relationship is good communications, which starts from the very first meeting. At the end of the first meeting you should come away with a sense that your lawyer understands the issues at hand and in particular your concerns and priorities in relation to those issues; that there is a plan for dealing with the dispute; and that you have an understanding of the range of possible outcomes, the alternative pathways for resolving the dispute and time frame, costs and risks associated with each alternative pathway.
I recommend that you invest in an initial consultation so that you can determine if that lawyer is the right fit for you and your circumstances. At this meeting your lawyer should take time to ask you about what is important to you as the client. Your priority may be related to time or money. It may be related to minimising stress or wanting to preserve a relationship. You may want to take assertive action and play hard ball or alternatively to take a softly softly approach. A good lawyer will talk to you about the consequences of all options and give you confidence in taking your next steps. This is the opportunity to ask all of the important questions.
The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
