Posted: Wednesday, 24 January 2018 @ 08:30
One of the issues which executors face is how to deal with a caveat that has been placed on the estate. Given the ease with which a caveat can be placed and its impact it can be immensly frustrating particularly if all the formalities of doing a will have been correctly followed.
So what to do....are there fundamental proactive steps which an executor can take to deal with a caveat and make sure that it is overturned?
There is no silver bullet but these steps can help.
Recognise the Emotion of the Other Side - One of the most important dynamics within a probate dispute is that there is so much emotion. Given this your ability to influence the other side is frankly limited. A recognition of your relative powerlessness to influence will serve you well.
Assess Your Legal Position Carefully - Whilst the other side may be turbo charged on emotion this is more reason for you to be calm. When I deal with a case like this I am very tactical in assessing the legal position but moreover looking to bide my time and consider the best moment to communicate relevant points to the other side and the Court.
Communicate In Positive Terms and Calmly - From experience, Judges and Court staff do not like excessive emotion and prefer a measure of detachment from parties. They also like openness. Given this it is critical that all communication is formulated in such a way at all times but presenting your case in a way that does not damage your case.
Know When To Negotiate - Part of the assessment process which I do involves deciding when to make offers and when to hold firm. The key is often is understanding how the other party will react and how their response will be seen by a Judge. I am always thinking - What would a Judge think of my client? How does this look? Is there more we should be doing?
Know When To Attack - The counter-balance to this above point is the decision to threaten a party with say a costs threat(e.g withdraw the caveat or pay my legal costs) or what is called a Part 36 offer. Too many lawyers often seduced by their own sense of self importance issue premature and overly aggressive threats in this area. Yes, this can work but there is a time and place for everything and the key is know when and how often.