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Illot V Mitson

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jaycee401 | 09:50 Thu 15th Jan 2015 | Civil
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Ive posted on here before about an ongoing will dispute. We are nearly at mediation point but the solicitors are still trying to get a deal sorted before. We have tried endlessly even agreeing to what he wanted only then he upped the anti!! Our solicitor keeps comparing to Illot case, I have read that one but in our case it was son falling out with widowed father over 15 years ago as he felt he had remarried beneath himself. Father tried to reconcile a few times but to no avail. Also son is 66 and no dependant children or state benefits. She won 10% so if he won 10% he would win a heck of a lot less than we have already offered. We have some good evidence that the deceased was of sound mind when he wrote the will, including statements from his care home nurses and managers. I feel if we again try to clinch a deal prior to mediation all this will do is cause another few legal letters bumping up our already hefty legal bill. If we offer the amount suggested by our solicitor it is way less than he has already declined so I cannot see him accepting, all it will do is open up another long long battle. I have told the solicitor 3 times now just to go straight to mediation. I have the money to pay for this (around £4k inc solicitor time and cost) whether the other side has remains to be seen. I know the solicitors on both sides do not want it to go to court and they are saying it will cost around £10k-£15k each party to go to court surely though the contester will have to pay the court costs to get it there? I really do not know which way to go and feel our solicitor is more on the opponents side, we seem to jump to the tune of the contester all the time! We have disclosed any evidence asked for and received nothing from the other side! HELP!!!

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Is the solicitor refusing to do what you've asked him 3 times to do or is it just that he had given advice against it?
One question before I may comment further.

Is this mediation proposed as binding on both parties? I know that (and I have been involved in mediation of commercial disputes) commercial mediation can be binding - not sure that it is used in family law situations.
Question Author
I have asked 3 times and each time he has come back not refusing but suggesting another way to reach an agreement. No mediation is not binding. Thanks
So do you want guidance on whether the solicitor is right or do you want to know whether you can insist he does what you want or whether to change solicitors?
Question Author
Just if our solicitor is right. This has been going on 2 years and we seem to be going backwards.
OK, I suggest you think about the likely end game here, in the event that it all ends in court. This is not legal advice, which I am unqualified to offer, it is comments about the legal process and build-up of costs.
If it ends in court, litigants are well-advised to take at least minimum appropriate and necessary steps as the forerunner to the eventual court case. Such steps are likely to involve offering mediation (and I am sure you have been advised this by your solicitor) because judges seem to have been advised to take a stance that all parties should have made every reasonable effort to resolve, before court action. And they tend to take appropriate due account (but there is no guarantee) with the party that has made genuine attempts to resolve the issues before court action.
It is undoubtedly frustrating that you have to do through a series of steps, each one of which costs you actual cash in lawyers’ time, but if the end game is a court case that you think you will win, then you (probably) have to keep going. But see below. Otherwise you don’t get to the right position required (wrt the judge) by the end game.
So, if I was in your solicitor’s position (which I’m not), I might write to the other side at this time saying (in response to letters from the other side suggesting yet another ‘process’ or ‘meetings’ prior to mediation) that the answer is ‘no’ because ‘we have already made every effort to resolve this by this, this and this, and you have refused or placed other conditions on any agreement, and you appear to be putting yet more delay and cost into this process’. The next step is therefore, see you in court.
These are not proposed legal words, but I have worked with lawyers who are good at constructing the right words. The point of such letter or letters is that they PUT IN PLACE A SERIES OF MARKERS THAT CAN BE USED TO YOUR ADVANTAGE if and when the court case eventually comes. It is about constructing the right set of evidence now to assist you later. Judges seem to respect a party that has sought to genuinely resolve an issue by negotiation first, then mediation, but that have been frustrated by another side that just keeps changing the base line – and running up legal costs for both sides at the same time, pre-court action.
Now think deeply about what the other party wants. It could be one of:
1) To run you or the estate out of money through legal costs out of spite, to get back at you?
2) The individual fails to grasp the legal process / the legal precedents, and is not being advised well about his probability of success? There are always two sides to any legal process, a lawyer who does know his case law well or is more interested in maintaining the case because of fees (I am not suggesting that is the case here). The other side might genuinely believe he can win because he doesn’t have the sense or mental capacity to understand the legal strength of the legal arguments being put to him. And his solicitor just welcomes the continuing fee stream.
Now think how the other side is funding this – are his pockets deeper than yours and/or has he just has money to waste? Indeed is he funding his costs himself or is someone else paying? In which case it makes no difference if he wins or not.
Lastly, if you win, has he got the funds to pay for your costs? – because he has hasn’t then all he is risking is some of his own money.
From memory this is something to do with the proceeds of a Will, with the costs at present depleting the size of the end pot of inheritance money?
If there is one criticism I would make about solicitors, it is that some do not think about the end game from the outset, or try to advise clients on balancing the costs during the process from the benefits at the end, factoring in the probability of success. There is no silver bullet to working this out.
Sorry it’s so long, but hope it gives you some non-legal insights into an alternative way of thinking about this.
Question Author
many thanks buildersmate, much appreciate. I think you are spot on, on both 1) and 2). One of our offers was a 70/30 split of money in our favour and 50/50 split on house but because we asked for a paltry maintenance for any essential repairs to the property he refused it. Bearing in mind he would of become joint owner but was not prepared to assist in repairs! So he spat out his dummy and demanding proof we dealt with the power of attorney correctly, which we did and gave proof. Then he wanted all the cash and no property which we refused as we need some of the money to a)pay the solicitor for all this and keep mum in law comfy in her old age whilst she enjoys a life tenancy in the house. So I think we have been more than fair.
i just cannot believe you have been that patient and offered as much as you have. i would have offered him jack sh** and evicted him. and told him he could sue me (you) if he felt the need to do so. i just fail to understand how he feels that he is entitled to something for nothing. perhaps play hard ball now and say you have tried everything, he is still refusing/prevaricating, so withdraw the offer(s), start eviction proceedings and let him sue you with money he hasn't got (i.e. he won't/can't). good luck though x
illot mitson is here

http://www.bailii.org/ew/cases/EWCA/Civ/2011/346.html

in case anyone wishes to read it

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