Every effort should be made to resolve family disputes at an early stage

Chris Garden is a Senior Associate, Shepherd and Wedderburn

There are many potential causes for family conflict and each dispute, like each family, involves its own unique circumstances. We regularly deal with disputes 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 a signature has been forged or undue pressure 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 of a Will 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 been instructed to advise whether there may be a claim against professional advisers where, for example, a Will didn’t accurately reflect the intentions of the deceased.

The legal position in relation to executry disputes is often complicated, 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. Efforts should be made to resolve disputes at an early stage, when relationships can be repaired and before costs become significant.

Appropriate options to deal with a dispute must be considered on a case-by-case basis, but common methods include early discussions and correspondence, and mediation to discuss the issues and seek a resolution. People can be reluctant to engage with mediation while emotions are running high, but the process can be enormously beneficial. It allows key issues underlying the dispute to be explored, and even if a resolution is not reached on the day, it can help focus on the most important matters. Even if formal mediation is not used, early dialogue (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 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 costs of proceeding. The emotional impact of a court action against a family member should also be considered.

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 (an interdict) on a temporary or permanent basis.

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

Chris Garden is a Senior Associate, Shepherd and Wedderburn

Every effort should be made to resolve family disputes at an early stage - Chris Garden