• Jennifer Sheean

Can you really negotiate anything? (Part 2)

You may remember that I have been talking about a claim for provision by the youngest son (Gary) of the deceased (Bill). Dudley and Gladys, two of Gary's much older siblings have also brought applications for further provision from their father's estate. Harry, the eldest sibling, is the executor. The final sibling is Kathleen, known as Kit.

The estate is reasonably large consisting of three properties in Queensland, a property in Fingal Head in New South Wales (where Gary has been living for some time), and some amounts in various bank accounts. None of the applicants have any real assets. Harry has a house in Gympie, which he owns outright, and receives a full government pension. He has little in savings and spent the last 15 years assisting his father, Bill, who lived not far from him. This assistance meant that Harry saw Bill every day and ensured that Bill was well looked after and was able to attend all medical appointments. Kit lives with her wife in Toowoomba in Queensland. They own their house outright and have a comfortable sum in their superannuation funds, from which they draw a pension. Kit is facing some major health issues which, she expects, will require ongoing medical intervention at a cost that will test her family finances.

The family have agreed to attend a mediation in an attempt to resolve the claims for provision.

At the mediation, Gary has maintained his position that he needs the Fingal Head house. He has reminded his siblings that he has lived there for many years, paying no rent or outgoings because their father supported his dream of becoming a professional surfer. He has let his siblings know that he believes their father would want him to have the Fingal Head house plus a large sum of money to ensure that he can continue to pursue his dream.

Harry, as executor, has pointed out that, if Gary were to receive what he wants, he would receive about half of Bill's estate. That would leave the other four siblings to receive the other half of Bill's estate. Harry's position is that is not reasonable in circumstances where Dudley and Gladys have no assets and are unable to work, that he has a house but little else and is unable to work because of his age, and that Kit has real medical issues requiring her to pay large sums of money which will greatly deplete her current assets.

The other problem for Gary's siblings is that they believe Gary was indulged beyond what was reasonable and that it is high time he grew up and became an adult rather than continuing to live off their father or, as it now is, their father's estate. They have all had to make their own way in the world without the assistance of their father. They believe that Gary has received enough from their father throughout his lifetime and are determined to ensure that he receives no more than one-fifth of the estate (preferably less).

Gary is of the opinion that, because he has received such support from their father during his lifetime, he should continue to receive a similar level of support from the estate.

In this way, the parties appear doomed to be unable to resolve the matter without resorting to the Court's assistance. But is that the inevitable outcome?

It is an outcome but, in my opinion, it is not inevitable. A resolution may be able to be found but it will require a skilled mediator employing their knowledge of people and conflict to assist the parties to reframe the way that they see the situation.

In the next blog, I will look at some of the techniques that can be useful in helping parties who are seemingly entrenched in their positions to move towards a resolution.


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