Where there is a Will there is a way?

Wills can provide the best way to ensure that the needs of those left behind are met. But on occasions, even the best drawn Will can result in crisis for the family.

With an ageing population, problems are now arising in relation to Wills made years earlier, where the testator's circumstances (the person making the Will) have changed, but the Will has not.

Those who are to benefit under the Will may have died before the testator, for example a son or daughter leaving no grandchildren. Occasionally, the deceased's second wife or elderly partner may be unable to cope in a home in which they have only been left a life interest. In other cases the list of people to benefit under the Will may not be fair, given the passage of time. Of course, the simple answer would be to make a new Will, updating the arrangements. But increasingly, the elderly are facing age-related dementia with the inevitable problems that arise concerning their capacity to change their Will towards the end of their life.

Here, the rules of Intestacy (rules taking the place of a failed Will) can produce bizarre and unwanted outcomes. Some estates fall to be distributed widely amongst people who had no real relationship with the deceased, whilst those who have provided constant and attentive care go unrewarded.

There is a role for the Court of Protection to make a 'statutory Will' should there be a real need to change a Will and an elderly person not have the mental capacity to determine their own outcome. But this too can be fraught, because time-scales are frequently unfavourable and the court may not be able to act with expedition. Other courts can intervene after the death, but this can strip the value of the estate due to the sheer cost of litigation.

In recent years I have been contacted to facilitate settlements in this type of case. Families were looking at the outcome under the Will, saying to themselves, "this is not what she would have wanted had she known. What can we do to change it?"

There is a popular misconception that a person's Will is the final and determinative factor. This is not the case. Families can agree other arrangements, and where agreed, these can then take the place of the terms of the Will.

In one such case the family wrote to each other and suggested a facilitated meeting. We met to identify exactly what arrangements each would prefer. The meeting lasted the whole day. Everyone had their say, putting forward their favoured proposal and their reasons for it. In a structured session, family members listened to the arguments and noticeably changed their positions. The agreement they ended up with was very different from what their relative had provided, but brought the situation up-to-date in a way with which he would have approved. They said afterwards that it was just as if he had been with them, guiding them to a fair solution.

In those sad situations where a person dies without close relatives, the rules of Intestacy can result in a wide distribution to people who did not know the deceased. In such circumstances it is open to distant relatives to agree compromise arrangements that require the executors to make provision for close carers (for example step-children) who otherwise would not fall within the rules. Such meetings are best conducted face-to-face, but can be arranged at a distance by e-mediation. In one such case, distant relatives in Australia entered the process, initially be email and private messaging, and later by Skype. Here, a full agreement was reached and the executors were authorised by the beneficiaries to create a new term interest in a home to ensure that the deceased partner's children were accommodated until they finished their university studies.

The watchword of facilitation is that anything is possible if those involved can be brought to an agreement. Judges have indicated that, where agreements are reached, the courts will uphold them. So, even at difficult times following bereavement, it is still possible to make a difference and reach a fairer facilitated outcome.