Inheritance disputes can sometimes be bitterly fought and difficult to resolve, as emotions and family politics can make it challenging for a compromise to be reached without intervention.
There are parts of the legal community that advocate making participation in alternative dispute resolution (ADR) compulsory in an attempt to reduce the number of disputes that end up at a trial.
But, should parties to such a dispute be forced to attend ADR against their will? After all, some people want their day in court.
This is a question that came before the High Court in the case of Lomax v Lomax, the report for which has just been released (Neutral citation: [2019] EWHC 1267 (Fam)).
The case concerns a claim by Mrs Lomax for financial provision out of the multi-million pound estate of her late husband pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’). The claim was defended by her late husband’s son (her stepson).
Part of Mrs Lomax’s claim involved seeking the adjustment of various trust settlements made relating to her late husband’s shares in a family company.
Mrs Lomax and her legal team sought an order from the court to compel the stepson to submit the case to Early Neutral Evaluation ‘ENE’. ENE is a form of alternative dispute resolution led by a neutral party (usually a judge), who hears each party’s submissions and then states his or her view on the likely outcome at trial. That view is without prejudice and has no binding effect.
The value of ENE is that it provides the parties with a very clear indication of the potential result of the case should they continue with the litigation process all the way to trial. Most cases where ENE is employed settle quite quickly afterwards, as it acts as an effective ‘reality check’ for the parties.
In considering the question of whether to compel Mr Lomax’s son to take part in ENE, the Honourable Mrs Justice Parker was torn between her very clear belief in ENE and other forms of ADR, and the lack of clear guidance in the applicable Civil Procedure Rules. Ultimately, Mrs Justice Parker decided (and it seems, somewhat reluctantly) that she could not force parties in an Inheritance Act dispute to use ENE (or by implication any other form of ADR).
However, the judge did make a very clear request for this question to be looked at and guidance provided, stating:
‘I urge the Rules committee (a) to clarify whether ENE is to be considered compulsory and (b) to give consideration to providing a clear route to compulsory FDR in appropriate civil proceedings a prime example in my view being Inheritance Act litigation. The arguments for the court having power to do so are strong and the experience in the Family Division of court-controlled intervention presents a very favourable picture.’
The judge’s plea here would appear to echo the beliefs of a significant part of the judiciary and practitioners, and it would not be a surprise if some form of compulsory ADR is introduced in the near future.
Nockolds has a great deal of experience in dealing with all aspects of Inheritance Act disputes and probate claims, and ‘obtains excellent results for clients’ according to the Legal 500 (2018).
Should you have any questions or require any further information regarding inheritance disputes please contact Daniel Winter, Partner in our Will and Trust Disputes Team, on 01279 755777.
Daniel is also a full member of the Association of Contention Trusts and Probate Specialists, the recognised body of lawyers specialising in this complex area of work.