Fake friends find a flaw

Fake friends find a flaw
July 1, 2019 /

New power of attorney laws may offer a loophole

What makes a ‘real friend’? The ordinary Macquarie International English Dictionary 1  defines friend
as “…somebody emotionally close, somebody who trusts and is fond of another”.2

But we are in the new millennium, and the term ‘friend’ takes on many forms, 3  to such an extent that being a ‘friend’ is now a popular paid service in certain cultures,  for example Japan. 4

Currently 27% of people aged over 65 live alone. 5  With the rise of an ageing and frail population, friendship has never been more important and increasingly difficult to obtain. Recent statistics identify around one in seven people in Australia is aged over 65, 6 with predictions that rate will rise to one in four by 2056. 7

Without support structures close by, older people have a significant need to rely on paid services for all manner of day-to-day tasks, and now it seems paid friendship may be one of them. A recent news article 8 reports on the arrival of a paid friendship service to the Gold Coast. It is not a unique service, as there are currently several services online providing access to paid friends throughout Australia.9

Australian households aged over 55 hold 53% of our nation’s wealth at an estimated worth of $2.8 trillion. 10 These demographic features drive the ever-growing need for members of our aged population to have an attorney to assist them to manage their affairs as their capacity to do so diminishes. While there is no registry or central data collection
system 11  to know how many people have an enduring power of attorney, a recent report provides that around 30% of those surveyed had one in place. 12  It is not unreasonable to expect this figure to rise.

Current power of attorney law recognises the vulnerability of our elder population to exploitation. Noting that elder abuse is on the rise, our Government has seen a need to review and amend power of attorney laws through the passing of the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (GOLA). The
GOLA aims to increase protection from exploitation, with the new laws designed to “enhance safeguards for adults with impaired capacity in the guardianship system”. 13

In line with this policy objective, certain people are prohibited from being appointed as an enduring attorney, nor can they be a statutory health attorney. Relevantly here, one of those exceptions is anyone who is a ‘paid carer’ 14 
 for the principal, either before or after the commencement of the appointment. 15

Under the current legislation, there are no time limits to this exception. The new Act 16 attempts to broaden this  protection by including a timeframe prohibiting a ‘paid carer’ from being an attorney if they held  the role of ‘paid carer’ within three years of being appointed, or subsequently become  a ‘paid carer’ after the appointment. 

The intent of this amendment is to “ensure unsuitable people cannot act as attorneys and to reduce the risk of abuse or exploitation to an adult by a person appointed under an enduring document”. 17

The definition of ‘paid carer’ is, in effect, someone who performs services for the principal and gets paid for those services. The question that therefore arises is, what is the scope and extent of those services? The definition of ‘paid carer’ assists us by referring us to the Griffiths v Kerkemeyer 18  principle.

In short, it includes anyone who provides paid domestic or nursing services to the principal. So that would obviously include cleaners,  gardeners, drivers and nursing assistants.  But under this definition, both under the old and new legislation, it does not include being a ‘paid friend’. Who hasn’t helped a friend take the laundry off the line, mowed their lawn, cooked them a meal, or driven them to the doctor when they are unwell? These are all services that fit within the definition of ‘paid carer’. Accordingly, there is scope within ‘friendship services’, for the objects of the legislation to be circumvented by individuals claiming to be a ‘paid friend’ not a ‘paid carer’ in an attempt to avoid
application of the legislation.

In seeking to protect the vulnerable, our legal crystal balls can only forecast so much, because the commercial world tends to move at a far greater pace than legal developments. For the moment, at best, we can be aware of this issue and raise it with the client, should it be at all relevant to their instructions at the time of making the enduring attorney.

Sometimes friends in need can be targeted by ‘friends’ in finance, indeed.

Notes
1  Second edition.
2  There is no statutory definition of ‘friend’ of which I am aware, although there is a definition of friendly society in the Acts Interpretation Act (Qld). 
3  See social networking services such as Facebook, MySpace, WhatsApp and so on. There are currently at least 60 different social networking sites that rely on the concept of friending to build networks see: makeawebsitehub.com/social-media-sites.
4 theatlantic.com/family/archive/2017/11/paying-forfake-friends-and-family/545060.
5 aihw.gov.au/getmedia/d18a1d2b-692c-42bf-81e247cd54c51e8d/aihw-australias-welfare-2017chapter5-1.pdf.aspx.
6 aihw.gov.au/reports/older-people/older-australia-at-aglance/contents/social-and-economic-engagement/
employment-and-economic-participation.
7 ABS Media Release of 4.9.2008 – one in four Australianswill be 65 or older by 2056 – up from one in 10 in 2007.
8 goldcoastbulletin.com.au/subscribe/ news/1/? sourceCode=GCWEB_ WRE170_a&dest=https://www.goldcoastbulletin.com.au/lifestyle/a-gold-coast-woman-is-starting-a-businesscharging-people-to-be-her-friend/news- story/a82b9347af1c5a94991c24f99614e358&memtype=anonymous&mode=premium&is_silent_authentication=true&error=login_required
9 rentafriend.com.
10 mccrindle.com.au/insights/blog/australiasgenerations-wealth-income.
11 Except in Tasmania, where registration of an EPOA is required for validity Powers of Attorney Act 2000
(Tas.), s16; and see s7 Powers of Attorney Act (NT),s25 Powers of Attorney Act (Qld) et al – under which
powers of attorney may be registered, and arerequired to be registered before dealing with land.
12 Having the Last Word: Will making and contestation in Australia, Key Findings, ARC Linkage Project, March
2015; Cheryl Tilse, Jill Wilson, Ben White, LindaRosenman and Rachel Feeney.
13 Explanatory notes, GOLA.
14 Sched 3, s3 – dictionary: paid carer, for a principal, means someone who— (a) performs services for the principal’s care; and(b) receives remuneration from any source for theservices, other than—(i) a carer payment or other benefit received from the Commonwealth or a State for providing home carefor the principal; or (ii) remuneration attributable to the principle that damages may be awarded by a court for voluntary services performed for the principal’s care.Note— This principle was established in Griffiths v Kerkemeyer (1977) 139 CLR 161—see Queensland Law Reform Commission Report No. 45, ‘The assessment of damages in personal injury and wrongful death litigation, Griffiths v Kerkemeyer,Section 15C Common Law Practice Act 1867, October 1993.
15 ss29, 59, 63 of the Powers of Attorney Act 1999, as amended by the GOLA.
16  Not commenced at the time of writing (20 May, 2019).
17  Explanatory notes, GOLA.
18  (1977) 139 CLR 161.

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Can't we all just get along – Break-ups, Real Estate and Representatives

Can't we all just get along – Break-ups, Real Estate and Representatives
June 27, 2019 /

Although there can be many unpleasant aspects of a break-up, selling a jointly owned matrimonial home can be a difficult task. It can also be troublesome for practitioners. In the recent disciplinary proceeding of Legal Services Commissioner v Sheehy [2019] 1 Qd R 541, Sheehy was reprimanded and fined for unsatisfactory professional conduct by failing to acknowledge the significance of joint instructions. 

A former husband and wife had obtained orders from the Family Court of Australia for jointly-owned land to be sold. A contract of sale was signed.  Sheehy acted for the wife, while another solicitor “Welsh” acted for the Husband. Due to complications, the settlement date was extended multiple times.  

On the rescheduled settlement date, another extension was sought. The Husband denied the request and terminated the contract. In spite of this, Sheehy advised the Buyer’s solicitor that the wife was able to settle. Settlement proceeded and the money was paid to Sheehy’s trust account. The Buyer’s solicitor attempted lodging the transfer document but was prevented from doing so by a caveat lodged by the Husband. Ultimately, the money was returned to the Buyer and the property was re-sold. The court provided Sheehy with some handy tips:

  • – Where sellers hold the property as joint tenants, neither party can perform the contract without the other;
  • – As settlement could not occur on the specified date, there was an actual fundamental breach by the buyer, and the Husband was autonomously entitled to terminate; 
  • – A reasonably competent legal practitioner would have known or ascertained that the wife was not entitled to take steps to complete the contract over the objection of the former husband.

Sometimes we can’t all get along, but practitioners should do their best to try. 

Further Reading: Legal Services Commissioner v RB Sheehy [2017] QCAT 276 (Original decision); Lion White Lead Ltd v Rogers (1918) 25 CLR 533, 551; Carringville Pty Ltd v The Gatto Group Pty Ltd (2003) 11 BPR 98031

Should you wish to download a copy of this article please click HERE.

Do your homework before picking Bob the Builder!

Do your homework before picking Bob the Builder!
June 21, 2019 /

Often people sign building contracts without getting any legal advice or doing their due diligence. (I know my husband would have if I wasn’t a lawyer when we recently built our first home last year) Everyone assumes it is a standard contract regulated by the Queensland Building and Construction Commission (QBCC), but what about the 300 page off-the-plan contracts for land and build packages??? Answer – they often do not use the standard contract.

As recently seen in multiple reports in Sydney, newly built high-rise apartments (off-the-plan) often have more structural issues and risks than a 20-year-old home or apartment.  For example, Sydney’s Opal Tower and Mascot Apartments are only 2 of many new developments that have left owners with uninhabitable properties in the middle of a booming CBD. In the Opal Tower situation, it was recently after the statutory warranty expired that the building began to crumble, conveniently the builder and developer had gone AWOL leaving the insurer with a $3million claim for defects.

To avoid dodgy builders or developers, you can do the following: –

– Do a free QBCC license search (this will show any claims/disputes/disciplinary records) http://www.onlineservices.qbcc.qld.gov.au/OnlineLicenceSearch/VisualElements/SearchBSALicenseeContent.aspx

– Get independent pre-contractual legal advice;

                   * Do court searches on company and directors

                  * Order a full body corporate/strata disclosure (this will show all minutes of meetings,                              raised defects and financial records)

– Ensure you have seen a completed project, so you know the quality of the workmanship.

– Have an independent building inspection completed prior to handover/last progress payment or settlement.

If you are looking at building your first home or buying into an off the plan development, please call our office 07 5576 9999.

Should you wish to download a copy of this article please click HERE.

Sunny Side Up and a Taste of Testamentary Freedom

Sunny Side Up and a Taste of Testamentary Freedom
June 20, 2019 /

Often people sign building contracts without getting any legal advice or doing their due diligence. (I know my husband would have if I wasn’t a lawyer when we recently built our first home last year) Everyone assumes it is a standard contract regulated by the Queensland Building and Construction Commission (QBCC), but what about the 300 page off-the-plan contracts for land and build packages??? Answer – they often do not use the standard contract.

As recently seen in multiple reports in Sydney, newly built high-rise apartments (off-the-plan) often have more structural issues and risks than a 20-year-old home or apartment.  For example, Sydney’s Opal Tower and Mascot Apartments are only 2 of many new developments that have left owners with uninhabitable properties in the middle of a booming CBD. In the Opal Tower situation, it was recently after the statutory warranty expired that the building began to crumble, conveniently the builder and developer had gone AWOL leaving the insurer with a $3million claim for defects.

To avoid dodgy builders or developers, you can do the following: –

– Do a free QBCC license search (this will show any claims/disputes/disciplinary records) http://www.onlineservices.qbcc.qld.gov.au/OnlineLicenceSearch/VisualElements/SearchBSALicenseeContent.aspx

– Get independent pre-contractual legal advice;

                   * Do court searches on company and directors

                  * Order a full body corporate/strata disclosure (this will show all minutes of meetings,                              raised defects and financial records)

– Ensure you have seen a completed project, so you know the quality of the workmanship.

– Have an independent building inspection completed prior to handover/last progress payment or settlement.

If you are looking at building your first home or buying into an off the plan development, please call our office 07 5576 9999.

Should you wish to download a copy of this article please click HERE.

What is the difference between a specialist and an Accredited Specialist?

What is the difference between a specialist and an Accredited Specialist?
June 10, 2019 /

Contested Probate and Larke v Nugus

Continue reading

Elder Abuse – it's criminal!

Elder Abuse – it's criminal!
June 4, 2019 /

 Last year I wrote a piece for QLS Proctor magazine on the numerous criminal provisions that apply in Qld when the elderly are abused. This news piece reports on an horrendous circumstance of abuse with the QPS laying criminal charges. I’m sure many will be monitoring this matter as it will likely have significant flow in effects for the many elderly people who are subject to abuse.

Click here to read more:

https://www.abc.net.au/news/2019-06-03/carer-charged-over-alleged-neglect-mistreatment-elderly-woman/11174484?pfmredir=sm

FAKE FRIENDS ARE NOT PAID CARERS: Loophole in power of attorney laws

FAKE FRIENDS ARE NOT PAID CARERS: Loophole in power of attorney laws
May 1, 2019 /

FAKE FRIENDS ARE NOT PAID CARERS: Loophole in power of attorney laws

Christine Smyth

Once upon a time, way off in a distant land, friendship was forged through shared experiences, trust, loyalty and a bond of genuine affection.  It was not something you paid for, unlike other services, that have a more salacious aspect, but I digress.  The ordinary Macquarie International English Dictionary[1] defines friend as: “somebody emotionally close, somebody who trusts and is fond of another.”  There is no statutory definition of friend of which I am aware.[2] 

Fast-forward to the new millennium, and friendship is now a popular paid service in certain cultures, for example Japan.  But, “not here” you say? Yes, it is now here.  With the rise of singledom, disconnected families and communities, and in particular an ageing and frail population, friendship has never been more important and increasingly difficult to obtain.  This recent news article reports on the arrival of a paid friendship service to the Gold Coast.   It is not a unique service as there are currently several services online providing access to paid friends throughout Australia.[3]  While such a service may be laudable in many ways, some may argue that the service has the capacity to exploit the vulnerabilities of clients.  None more so than in the elder abuse space and the coalescence of appointing an enduring power of attorney.  Current power of attorney law recognises the vulnerability of our elder population.   However, abuse is on the rise and our government through the passing of the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (“GOLA”) aims to increase protection from exploitation, as is stated through the policy objectives, the new laws are designed to “enhance safe guards for adult with impaired capacity in the guardianship system.”[4]

In line with this objective, certain people cannot be appointed as an enduring attorney, nor be a statutory health attorney. Relevantly here, one of those exceptions is anyone who is a “paid carer”[5] for the principal either before or after the commencement of the appointment.[6] Under the current legislation, there are no time limits to this exception. The new Act (yet to start) attempts to broaden this protection by including a time frame prohibiting a “paid carer” from being an attorney if they held the role “paid carer” within three years of being appointed, or subsequently become a “paid carer” after the appointment.

The objects of this amendment include: “ensur[ing] unsuitable people cannot act as attorney and reduce the risk of abuse or exploitation to an adult by a person appointed under an enduring document.”[7]

The definition of “paid carer” is, in effect, someone who performs services for the principal and gets paid for those services.  The question that therefore arises, is: what is the scope and extent of those services?  The definition of “paid carer” assists us by referring us to the Griffiths v Kerkemeyer[8] principle.  In short, it includes anyone who provides paid domestic or nursing services to the principal.  So that would obviously include cleaners, gardeners, drivers and nursing assistants.  But under this definition, both under the old and new legislation, it does not include being a “friend”.  As with the commercial world, creativity knows no bounds, nor does exploitation.  It is always difficult for our parliament to keep up with the fast-paced entrepreneurial environment. Legislation can only go so far.  One way concerned clients can address this gap, is to incorporate a well-crafted provision into their own power of attorney document as to the commencement and cessation of a power of attorney for any and all such service providers.

If you would like to speak to one of our experts about this, you can contact us on (07) 5576 9999.

[1] Second edition.

[2] Although there is a definition of friendly society in the Acts Interpretation Act (Qld).

[3] https://rentafriend.com/

[4] Explanatory notes, Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld).

[5] Sched 3, s 3 – dictionary:

paid carer, for a principal, means someone who—

(a) performs services for the principal’s care; and

(b) receives remuneration from any source for the services, other than—

(i) a carer payment or other benefit received from the Commonwealth or a State for providing home care for the principal; or

(ii) remuneration attributable to the principle that damages may be awarded by a court for voluntary services performed for the principal’s care.

Note— This principle was established in Griffiths v Kerkemeyer (1977) 139 CLR 161—see Queensland Law Reform Commission Report No. 45, ‘The assessment of damages in personal injury and wrongful death litigation, Griffiths v Kerkemeyer, Section 15C Common Law Practice Act 1867’, October 1993.

[6] ss29, 59, 63 of the Powers of Attorney Act 1999, as amended by the GOLA 2019 (Qld).

[7] Explanatory notes, Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld).

[8] (1977) 139 CLR 161.

Executor's Commission

Executor's Commission
May 1, 2019 /

From privilege to pains and trouble

“You are not obliged to accept the role of personal representative” 1  is advice I typically give my  personal representative (PR) clients.

Often their response is confusion as they seek to reconcile that advice with their own sense of responsibility. On the one hand they consider the appointment a privilege, on the other they know it is a heavy responsibility which will impact their daily life.

Generally, their sense of duty to the deceased, family and friends prevails and they accept the role. Nevertheless, these days most estates carry a level of complexity not experienced by previous generations. That complexity can and does cause significant disruption to the lives of the PR. 

From managing complex assets in multiple jurisdictions, to family relationships peppered with bitterness and conflict, to the prospect of litigation at every turn, in many cases actual litigation, the position of a PR is not merely time-consuming, it is a heavy burden, fraught with personal distress and great risk. It is therefore not surprising there is an increase in PRs seeking commission for their pains and trouble in the administration of an estate.

In last month’s Proctor I wrote about Chapter 15, Part 10 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) 2  in the context of estate administration disputes and the passing and filing of accounts. This month I
address the second portion of Part 10 – the law and process of applying for commission. 

The law – entitlement to claim

Section 68 Succession Act 1981 (Qld) gives power to the Supreme Court to authorise the payment of commission. Although s68 is couched in discretionary terms, there is clear case authority that PRs are entitled
to the payment of commission when they have discharged their obligations and responsibilities in the  administration of  an estate and/or trust. 3

The award of commission is usually made with reference to the size of the estate and the ‘pains and trouble’ incurred in the estate administration by the executors; ‘pains’ applying to the responsibility and consequent worry undertaken, and ‘trouble’ covering the work done. 4

Application for commission

An application to the court for an order that commission be assessed and paid is complex and expensive. For this reason, the court recognises and encourages agreements between PRs and beneficiaries to save the costs and time of making such an application. An application can be avoided if all beneficiaries are of full age and provide their consent to the amount paid. 

Where no agreement can be reached, or the beneficiaries are unable to consent because they are minors, or they lack capacity and their attorney does not consent, it may be necessary to make an application to the
court under Part 10. The mechanics of the application process are set out in rules  657C to 657F UCPR.

Rule 657C identifies the right of a trustee 5 of an estate to make an application for commission. It itemises the information that must be deposed to in an affidavit and filed in support of the application. 

Rule 657E outlines the matters that the court may take into account, which includes any estate account assessment.

Many practitioners would be aware that it is customary for the courts to allow commission as a percentage of entries in the estate accounts. However, application of a percentage rate does not govern the performance of the task when assessing the quantum of executors’ commission – it simply provides guidance. On this point, the New South Wales Supreme Court recently said: 6

“To focus unduly on the application ofpercentage rates that might be perceived to be those that have been, or should be, ‘ordinarily’ or ‘usually’ applied is an invitation to error. They can be a useful guide to decision making, and their utility is not to be discounted because of a need to adapt them to the facts of the particular case, but they are no more than a guide…

“…If and to the extent that reference is made to ‘ordinary’ or ‘usual’ rates, as a compendious way of referring to
accumulated experience, care needs to be taken to place that reference in the context of a determination of what is ‘just and equitable’ for the executor’s ‘pains and trouble’. Whatever intermediate calculations are made by reference to the categories, an assessment of remuneration that is ‘just and reasonable’ requires the ultimate, resultant dollar amount to be weighed in the balance…

“…The concept of a ‘just and reasonable allowance’ likewise counsels caution against an application of standards of reasonableness that might be applied in other areas of law, such as on a quantum meruit claim (a claim of right) at common law. In the application of the court’s probate and equitable jurisdiction, discretionary in character, regard must be had to a range of factors (including the summary nature of the jurisdiction, the size and nature of the deceased’s estate, the terms of any will and the rights of beneficiaries) rather than taking refuge in standard rates of remuneration that may guide a common law claim in contract or restitution.”

The task remains one of assessment of an allowance for the “pains and trouble” taken by a PR who applies for commission. Essentially, the court will place a value on the pains and trouble of the PR by considering the facts of each particular case, the work done by the PR, and what is a reasonable allowance for that work with  reference to the estate accounts.

For these reasons, quantification of an allowance for commission is notoriously difficult. Accordingly, while not necessary a court may under r657D require the applicant to pass and file estate accounts 7 before determining commission.

Planning

There is an old adage: Those who fail to plan, plan to fail. To that end, if commission is granted, either by the court or by agreement, it is important to advise PRs from the outset to seek independent financial advice about
the prospect of receiving commission, as it is typically treated as taxable income in the hands of the PR.8

If the PR is in receipt of a government benefit, the benefit may be affected. Alternatively, if the PR is a high-income individual, the award of commission may affect their taxation rate. Note also that s114 of the Trusts Act 1973 (Qld) provides that executor’s commission is deemed to be a testamentary expense.

For these reasons, but more particularly for ensuring evidence gathering to support r657E factors, practitioners are recommended to advise their PR clients about commission at the outset. That way their client may properly plan whether they will seek commission. Conversely, if you are acting for beneficiaries, advising them of the
prospect of commission can equally prepare and forearm them for the process. 

Notes
1  ‘Personal representative’ is defined in Acts Interpretation Act 1954 – Schedule 1: “[P]ersonal representative of a deceased individual means the executor (whether original or by representation) or administrator of the individual’s estate.” See also s5 Succession Act 1981 (Qld) where it is defined to mean “the executor, original or by representation, or administrator of a deceased person”.
2 Referred to in this article as Part 10.
3 RS Geddes, CJ Rowland and P Studdert, Will, Probate and Administration Law in New South Wales (1996) [86.02]; see also Re Lack [1983] 2 Qd R 613, 614 (McPherson J); and Section 101 of the Trusts Act 1973 (Qld), which provides that the court may authorise a person to charge remuneration for their personal services in carrying out their trustee’s duties.
4 In Re Allan McLean (Deceased) [1911] 31 NZLR 139 at 144; Luck v Fogaerty (Unreported, Supreme Court of Tasmania, Zeeman J, 22 March, 1996) 2; Re Gowing: Application for Executor’s Commission [2014] NSWSC 247 at para 77.
5  See r644, which sets out certain definitions particular to this part. There, ‘trustee’ includes a personal representative of a deceased individual.
6 Re Estate Gowing; Application for Executor’s Commission [2014] NSWSC 247 at paragraphs 54, 61 and 62.
7 Refer to the April 2019 edition of Proctor (pp38-39) for guidance on the process of filing and passing estate accounts.
8 See Australian Taxation Office interpretive decision 2014/44.

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession
law) – Qld, and Consultant at Robbins Watson Solicitors.She is an Executive Committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, member of the QLS Specialist Accreditation Board, Proctor Editorial Committee, QLS Succession Law Committee and STEP, and an Associate Member of the Tax Institute.

Should you wish to download a copy of this article please click HERE.

THE COST OF CUTTING CORNERS TAKING WILL INSTRUCTIONS – LEGAL SERVICES DISCIPLINARY FINDING

THE COST OF CUTTING CORNERS TAKING WILL INSTRUCTIONS – LEGAL SERVICES DISCIPLINARY FINDING
April 30, 2019 /

The decision of Legal Services Commissioner v Ronald Aubrey Lawson (LCR v Lawson)[1] is sad, because it involves a practitioner of decades standing with no prior disciplinary matters who is now at the end of his career with a blemished record. Clients frequently ask why legal advice is so expensive, and why do lawyers have so many processes and procedures for an apparently simple matter?  It is because we have duties and responsibilities that are so comprehensive, we are not permitted to cut corners.  If we do cut corners, then the consequences are devastating both to our clients, their families and ourselves.

In the decision of LCR v Lawson, the solicitor took instructions for a will from the son of the testator, who had an interest in the will. The solicitor did not personally attend on the testator. Taking instructions directly from a testator is required, and standard practice, especially where the intermediary giving the will instructions takes a benefit.  It is surprising the number of people who are offended by this requirement in day to day practice. Here however, the testator could not attend the solicitor’s office because of his age and frailty and the solicitor himself could not attend on the testator at his nursing home because the solicitor suffered physical incapacity from a recent injury. The solicitor drew the will on the instructions of the testator’s son, then sent his two staff members to the facility where the testator was residing for execution of the will. The staff members read the will to the testator. The testator himself appeared to read the will. The testator noted some typos. Then, the testator signed the will.

Legal Services Commissioner v Ronald Aubrey Lawson at [14]-[15]:

“In the view of the Tribunal, the conduct of the practitioner in this case, in drafting and presenting for execution a will on which instructions had been provided only by an intermediary and without verifying those instructions with the testator, was conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

That is highlighted in this case by the fact that the intermediary giving these instructions was a person who not only had an interest under the will, but that the instructions that he gave were instructions which would have operated both to increase the share of his take as a beneficiary under the will, and also exclude another beneficiary completely from benefit under the will. Those circumstances alone should have been sufficient to ring the alarm bells for the respondent as to the need to obtain verification of those instructions from the testator. As already noted, that could have been done with a phone call.”

A link to the full case can be found here: https://archive.sclqld.org.au/qjudgment/2019/QCAT19-100.pdf

To download a copy of this blog, click here.

[1] Legal Services Commissioner v Ronald Aubrey Lawson [2019] QCAT 100