Going soft

Whether your client feels that they have been disinherited, or whether they have inherited an estate and face a claim against them, embarking on litigation during the grieving process can be a difficult time. 

It has been widely reported that the number of contentious UK probate cases is at its highest and continuing to rise. Working in the private client world, we know that this is due to a changing landscape of increased wealth, property, and blended families. 

We regularly see people who feel that a deceased’s loved one’s will is invalid or has been the product of coercion because it does not leave them anything. We also see people wanting to rely on the Inheritance (Provision for Family Dependants) Act 1975 because they strongly feel they should have received something in a will and have not received enough or anything at all. 

How do we as practitioners help clients navigate the world of contentious probate, both emotionally and commercially? 

Listen 

When a client first comes to see you, really listen to everything they have to say. As a mediator, in the initial session with the parties, I try to speak for only 20% of the time, at most. I also ask to hear from the parties themselves and not from their lawyers. The parties in a dispute need to get everything off their chest, most of which might be irrelevant to the case but highly relevant to the emotional journey that they are on. 

Rather than diving straight in, ask focused but open questions, and give them time to answer. Remembewwr they are grieving. Much of the information you need from them will come out in a way that is raw, deeply honest, and unfiltered. This will help them to process the journey that they are about to embark on. 

Many clients are intimidated by lawyers and litigation. When asked focused questions too early, they will try to say what they think you want to hear rather than what they feel. Asking general open questions allows them to relax, talk about the deceased in whichever way they need to and helps you to gauge their emotional state.  

Be empathetic but advise clearly and be realistic 

Many clients talk about why they are doing what they are doing. They will say that this principle is more important than anything, including finances and whatever it costs them to take their claim further. Many feel that the law is not supportive of their position and take umbrage at the concept of testimonial freedom. Many clients also have deep-rooted anger about what has happened and cannot accept the position that they find themselves in. 

The difficulty everyone faces is that the one person who may be able to help answer your client’s questions is no longer around. What we need to remind them is that litigation cannot and will not answer those questions for them either. 

This is a difficult situation for you as a practitioner. What is important is to be able to empathise with their position, but ensure that they know that you are there to advise them on the reality of litigation. This can be a tricky balance but it can be achieved by building rapport, speaking to them on the phone and in person, and giving realistic advice on what they can achieve from the legal process in a sensitive manner. You do not have the magic wand that they are sometimes looking for and it is OK for them to know that. 

Prepare them for a difficult road ahead

Although they are going through a difficult time emotionally, sugar-coating the process will not assist them in the long run. 

Prepare clients early on for the tricky road ahead. Contesting the will of a loved one is likely to be an emotionally and mentally draining process. This process can also be extensive and carry on for two or three years in complex cases. Preparing your client for the toll that this is likely to take on them will help them to weigh up whether the litigation process is worth it. 

Look at the good, the bad and the ugly with them. Consider all avenues and outcomes. Process the numbers and explain the commercial reality of the process early on. It’s important to make sure your client knows that litigation is generally expensive, and disputing wills can incur high costs due to the often-complex nature of these cases. Avoiding reality will only come back to bite your client later on. 

Building a good relationship with your client by taking time to explain clearly to them will help them understand the advice while processing the emotional journey along the way. 

Consider mediation 

Clients should always consider mediation early on. Explain the benefits to clients and discuss how it can be an informal process which allows them to try to achieve an outcome both legally and emotionally. You should make sure your client knows the court is not there to listen to how they feel, but generally a mediator will allow time for the client to air how they feel with them. 

In disputes over inheritance, claimants are often motivated by emotions as well as their need to achieve a just financial outcome. Mediation creates the right environment for parties to be able to address these emotions, as in a court environment people don’t often get a chance to work through any feelings associated with an inheritance claim.

I often say that the key to a successful mediation in inheritance disputes is allowing enough time for that emotional release while keeping parties focused on having productive commercial conversations to reach an agreement. It requires empathy along with a firm and assertive approach to steer the parties in the direction of settlement. Strike the balance between being supportive yet realistic with clients. They will thank you for it in the long run.