Alternatives to litigation—contentious trusts and estates
Alternatives to litigation—contentious trusts and estates

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Alternatives to litigation—contentious trusts and estates
  • Negotiation
  • Mediation
  • Early neutral evaluation
  • Arbitration
  • Third parties
  • Minors and Protected Parties
  • Avoiding disputes

The traditional approach to trust disputes has been to resort to litigation rather than using the less contentious methods of alternative dispute resolution (ADR).

At the heart of a trust, which creates binding equitable obligations on the trustees enforceable by the beneficiaries, is essentially a personal relationship. In the case of a dispute that personal relationship might be exposed to attack for a variety of reasons, such as lack of validity of the trust or improper administration of the trust by the trustees.

Disputes between trustees and beneficiaries can be traumatic and generally cast a pall over any future meaningful relationship. Clearly there are cases where litigation is the only solution but the courts now generally expect the parties to at least consider alternative means of resolving the dispute.

The Civil Procedure Rules 1998 (CPR) and their Practice Directions provide a framework to guide the parties to act reasonably when commencing and conducting claims. Under these rules, if no attempt is made to resolve a dispute amicably or one party has declined any attempt at mediation, the unreasonable party will generally be penalised by a costs order. The purpose is to meet the criteria of reducing the cost and complexity of disputes.

Although the CPR does not set out a specific pre-action protocol for probate and trust disputes, the Association of Contentious Trust and