Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Information to Share in a Mediation

For disputes, common questions that often arise are:

  • What is the right information to share in a mediation; and
  • How much should I share with the other side?

If a mediation is to be successful, it requires some transparency on the part of all parties. The difficulty is knowing how much information to share in a mediation, without compromising your own position. This article will briefly set out some matters to consider.

In our previous article, What you need to know about confidentiality in mediation, we considered how the law protects information shared in confidence in mediation. In a mediation, you do not need to be concerned that what you say will later be used against you in court if the mediation is unsuccessful. However, you still need to think about what information to share in a mediation from a strategic point of view.

How does a mediation work?

A mediation should allow the parties to explore their options. This does require you to tell the other party what your general objective is, even if they do not need to know the specifics. Once the other parties' objectives are known, you can explore the options for resolving the dispute. A mediation will not be successful if you do not know what is important to the other party, and they do not know what is important to you.

What are the benefits if I share information in a mediation?

By exploring the options, the parties should be able to expand the realm of possible outcomes. It is easy to think of negotiations as a zero-sum game, where one party's gain is another's loss. Often, however, parties will have different interests that allow for the creation of mutual value that they might not otherwise have recognised. You cannot find this common ground if you have not shared your objectives, at least in broad terms.

What information should you not share in a mediation?

If you can avoid it, you should not share information in a mediation if it will damage your bargaining position. For example, if your success at mediation depends on a threat being credible (such as the threat that you will take legal action), you should not share any information that would call the credibility of that threat into question.

How to negotiate in a mediation

Negotiations involve making trade-offs. There may be some things that you can give up at a relatively minimal cost to you. However, you may not want the other side knowing that the trade-off is cheap for you. You still want to extract the maximum value for the trade-off. There is a balancing act here. If you say something is not important to you, the other party will not be willing to give you much in return for it. On the other hand, if you do not let the other party know that you are willing to engage in the trade, you will never find a mutually beneficial outcome.

How do you make these trade-offs?

One helpful way of framing a trade is to discuss the value the other side is obtaining, rather than focusing on the cost to you. This allows you to present the trade as fair and beneficial to the other side.

There are some things that you might not want to share, but that you will have to. This is especially true in a mediation that is part of a court proceeding. You may be in possession of evidence that is not favourable to you, but which will need to be disclosed during the proceedings anyway. In this situation, you should be ready to conduct a mediation on the basis that all the information that will be available at a trial is known to the parties.

Of course, what you should and should not share will be specific to your situation. It is important that you have thought through what you are willing to share with the other side in the mediation. If you are prepared and have a strategy, you will increase the chances of obtaining your objectives in the mediation and obtaining a favourable outcome.

How can Sharrock Pitman Legal assist?

As Nationally Accredited Mediators, Sharrock Pitman Legal offer dispute resolution and mediation services in Melbourne and Australia wide. If you have any further queries about the information to share in a mediation, or any other issues, feel free to contact Simon Matters on 1300 205 506 or alternatively fill in the form below. For further information, visit DisputeOver.

For more in depth information on the benefits of mediation, refer to the Benefits of Mediation.

For more information about what happens at mediation, refer to Preparing for your Mediation Session.  

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

 Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Samuel Ellemor

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

More on

Mediation of Disputes

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.