How taking early advice can help resolve family disputes

When disputes arise between family members, there is often much more at stake than money. Chris Garden explains how seeking advice early on can help resolve family disputes.

19 January 2022

When disputes arise between family members, there is often much more at stake than money.

Common grounds for family disputes

We regularly deal with disputes between family members in relation to Wills, Powers of Attorney, and the administration of the estates of deceased individuals. Often these include challenges to the validity and terms of a Will, either because it is alleged that the signature has been forged or that undue pressure was placed on a person to change the terms of a Will. They can also relate to claims that individuals were unduly influenced to make gifts during the final years of their life, or that an individual with Power of Attorney is not fulfilling their obligations.

Some disputes arise because it is thought the executor is not acting appropriately or quickly enough, or there is a dispute about the value of the estate or distribution to beneficiaries. Regrettably, we have at times had been instructed to advise on whether there may be a claim against professional advisors where for example the Will did not accurately reflect the intentions of the deceased. 

The legal position in relation to executry disputes is often complicated, and is not helped by the fact that the intentions of the person cannot be explained because they are no longer with us. As well as financial implications, disagreements can have profound and lasting effects on family relationships, which can be much more damaging. For that reason, efforts should be taken to try to resolve disputes at an early stage, when relationships can be repaired and before costs become significant.

How can you best resolve a family dispute?

The appropriate options to deal with a dispute must be considered on a case by case basis, but include early discussions and correspondence, and mediation to discuss the issues and seek a resolution. People are often reluctant to engage with mediation while feelings are strong, but it can be enormously beneficial. It allows the key issues underlying the dispute to be explored, and even if a resolution is not reached on the day, it can help to narrow the issues. Even if formal mediation is not used, early dialogue (either directly or through solicitors) can be very helpful. The more entrenched the parties become the more difficult it can be to resolve a dispute, and the higher the costs will be for all concerned.

There will be occasions when it is necessary to take formal action through court proceedings. This requires careful consideration as to the likelihood of success and the costs of proceeding in that manner. The emotional impact of a court action against a family member should also be considered. The best approach is to seek advice as to your options at the earliest possible stage. This will allow the costs and benefits of each option to be properly considered before action is taken.

Some cases will require urgent action, for example to prevent the sale of a property when there is a dispute as to whether it ought to be sold. This can mean seeking an order to prevent a particular action being taken (known as an interdict) on a temporary or permanent basis. As is the case where any litigation is considered, advice from an experience solicitor is essential.

While cost may discourage you from taking advice at the outset of a dispute, early advice is likely to reduce the likelihood of lengthy legal proceedings, and assist in resolving the dispute swiftly, hopefully avoiding fracturing precious family relationships. 

For further information on this topic, or other dispute resolution matters including other family disputes such as those relating to family businesses or properties, please get in touch with Chris Garden, Senior Associate in our commercial disputes team, or your usual Shepherd and Wedderburn contact.