Despite all the uncertainty in the world due to the COVID-19 pandemic, there are still many estate litigation disputes that are (or will be) in need of resolution by way of court intervention or alternative dispute resolution at some point in the future. The court houses may be closed, but there are out-of-court processes which can be utilized to ready a file for trial without the need of actually attending court, or any location for that matter.
Any estate litigation file is like an iceberg. The trial is only the tip, the part above the water that everyone sees. Below the surface is the majority of work and preparation that leads to trial. Importantly, most of this work and preparation can be done without in-person attendance.
Claims can still be filed using online services or using an agent. While limitation periods are suspended for the time being, that does not mean that you should wait to start a claim. As noted, trials can take years to come to fruition so it is better to get started as early as possible if you are ready to start a claim. We are actively filing claims on behalf of clients who have ongoing estate litigation disputes that require pleadings.
The normal process of disclosure should proceed relatively uninterrupted. Most law firms deal with electronic filing systems so the process of exchanging lists of documents and electronic files should continue as usual. A bright side to the pandemic is that it is actually forcing “old school” firms and institutions to adopt modern technology. Hopefully the long term result will be that the BC court system will come to support such technology as a necessity.
Reporting studios, where in-person out-of-court testimony takes place, have embraced virtual discoveries using Zoom or other similar technologies. Whereas in the past counsel has resisted using such methods for conducting examinations, desperate times call for desperate measures. We must work with the technology we have in order to move matters forward. Our firm is currently working with other counsel and the reporting studios to ensure the continuity of file progress. When courthouses open back up, we will not have missed a step.
Virtual mediations are not a new invention. In fact, it is common for a mediation to take place by telephone or other medium due to the ease with which these can take place. For background, mediations are semi-formal settlement discussions about a specific case that are done with the use of a neutral mediator who provides expert input in a non-binding way, in an attempt to resolve the dispute. We use a variety of experienced mediators to assist in settling estate litigation matters such as wills variation and trust claims.
Usually with an in-person mediation, there is only one session where all the parties are together in one room – the joint session. After the joint session, the parties break off into their own rooms. With a virtual or telephone mediation, a conference call or virtual room can easily be set up for the joint session and then the parties break off. This type of mediation saves expense because parties do not have to rent office space or travel to the mediation itself.
You can learn more about mediation here.
While trials and in court attendance is on hold, we at Hammerberg understand the importance of diligent and persistent preparation on all our estate litigation files. When the courthouses re-open, and they will, we will be ready to argue our clients’ position successfully in court.
Parties can still file claims using a variety of methods that do not require in person attendance at the courthouse, including estate litigation claims like wills variation claims and trust claims. Given that it usually takes years for a claim to make it to trial, there should be no delay in filing claims for legal disputes despite the current pandemic. Most steps in an estate litigation case can continue relatively uninterrupted. It is the policy of Hammerberg that estate litigation matters such as wills variation claims and trust claims progress towards trial, so that when the courthouses open, our clients have not wasted valuable time and can effectively proceed to trial.
Unemployment or underemployment has become an unfortunate reality in a very rapid fashion since the pandemic. We understand that litigation can be a time consuming and expensive ordeal. At Hammerberg, we understand this and in certain circumstances, will finance litigation using a variety of methods including contingency fee agreements where our fee is based on the success of the case. Reach out to us for a free consultation if you have an estate litigation dispute such as a wills variation claim or an inheritance issue.
If you have any questions you can reach out to our Estate Litigation team.
Written by: Anthony Eden