33 Steps to Mediaition
Summary by Eric Butler. Law Society Accredited Specialist in Wills & Estates Law. I've worked the last 24 years doing nothing but family provision claims.
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Whether I am acting for you as a Plaintiff (claimant) or a Defendant the scope of work is very similar except sometimes reversed. The summary hereunder is not absolute. Sometimes I may work more on some items and other times less, depending upon the circumstances of each case. This general summary is designed to give you an idea of the process involved.
- Obtaining instructions and investigating claimant’s eligibility;
- Search court probate register if required;
- Search death notices if required;
- Investigating various party’s health, financial position and financial need;
- Investigating the nature and value of the deceased estate;
- Collecting facts from my client and other witnesses (if required).
- Obtaining details about other parties or beneficiaries;
- Conducting property and other searches if required;
- Seeking financial documents and other information from the claimant;
- Reviewing and comparing previous court judgements in cases;
- Attempting to negotiate a Successful Outcome with the opposition;
- If required, briefing a barrister or engaging an expert;
- Paying all disbursements if incurred, including any barrister’s fees or agents;
- Before commencing proceedings negotiations for a Successful Outcome;
- Collecting evidence from client and witnesses to commence proceedings;
- Preparing affidavits of evidence of clients and witnesses;
- Collecting documentary evidence from client and witnesses;
- Collating documentary evidence to be annexed to affidavits;
- Sending affidavit evidence to client or beneficiary for checking and signing;
- Commencing Court proceedings by application or summons;
- Filing notice of appearance/respondent/defence of claim;
- Filing in court the Plaintiff’s ‘Notice of Eligible Persons’;
- Filing in court Plaintiff or Defendant and witness affidavits;
- Filing in court my affidavit regarding costs of the proceedings;
- Issuing any required Subpoenas or Notices to Produce;
- Inspecting documents produced by the opposition;
- Inspecting documents produced by third parties;
- Assisting client comply with Notice to Produce;
- Briefing your Barrister:
- Attending Directions Hearings before Registrar or Judge of the Court;
- Briefing barrister for his/her preparation and attendance at mediation.
- Attending mediation with you and your barrister.
- Much more if the case does not settle at mediation and moves towards a hearing.
What can go wrong to make the process more complicated.
As you would know, every family and every case is different. Sometimes cases start out looking very straight forward but as time goes by things become more complicated. One of the most common complications arise when it becomes clear that a claimant is not providing full and frank disclosure of his or her financial position. This usually encourages the executor/defendant to instigate a series of subpoenas to be issued or notices to produce seeking details of the true position of the claimants financial affairs. This process can be extremely time consuming and therefore costly.
The other frequent complication arises when the executor/defendant is not providing full and frank details of the assets of the estate. That causes the claimant to issue subpoenas and notices to produce seeking the true value of the estate. Sometimes the executor/defendant has had the a power of an attorney or perhaps enduring power of attorney for many years prior to the death of the deceased. It is not uncommon for poor records to be kept by the attorney (now executor) yet these financial details can be extremely important in these cases. Trying to get answers can be very time consuming and costly.
Usually the cases that are straight forward and without too much drama involved are the ones where the solicitors on each side are experienced in this law and realise the implications of failure to disclose and convince their clients of the danger of not freely disclosing all relevant information. In the case of claimants not fully disclosing, the penalty can be harsh including reduced provision out of the estate or no order for provision at all. In the case of executors/defendants acting badly he or she can be penalised by way of costs orders against them.