New Zealand Law Society

Navigation menu

Fined for unsatisfactory conduct over will

29 November 2016

A lawyer, C, who did not ask a client making a will if he had any children has been fined $1,000 by a lawyers standards committee.

The committee also determined that C failed to act in a timely manner to revisit his client, Mr A, who was in hospital, to establish whether he wanted to change his will.

Mr A signed his last Will and Testament in October 2012, leaving his property to his caregivers, who were also his personal welfare attorneys at the time. Specific bequests were left to other people.

In February 2015, Mr A was admitted to hospital. During the following two months, C took instructions to cancel Enduring Powers of Attorney in favour of the caregivers and execute new Powers of Attorney in favour of a Mr B.

The client remained in hospital until he died on 13 April 2015.

Mr B complained that at the time the new Enduring Powers of Attorney were being executed, Mr A said he wanted his caregiver/former attorney out of his life.

C advised his client to have a think about what he wanted to do about the provisions of his will and said that he would return the following week. However, he failed to do so.

As a result, Mr B says, Mr A’s wish that his caregiver and former attorney not benefit from his estate was not acted on and recorded in a new will.

C told the committee that Mr A had never instructed that he wanted to change his will. He said he had discussed it with Mr A and he instructed that he would “just leave it in the meantime”.

New EPOAs

On 10 March 2015, C revisited Mr A in hospital. The new EPOAs were signed. Mr B and a social worker, who witnessed the signings of the new EPOAs, were also present.

Mr B disputes C’s interpretation and asserted that Mr A’s comments extended to benefiting from his estate and that wide interpretation was supported by evidence provided to the committee by the social worker.

After the meeting, Mr B telephoned and emailed C a number of times, updating him on Mr A’s deteriorating condition. Mr A died on 13 April 2015 without C returning to visit him.

“The committee concludes that the facts are that [C] was aware that Mr [A] was unhappy about his will, he was aware that he had fallen out with the residual legatees, he was aware that Mr [A] was elderly and could die at any stage, and yet he did not take steps to deal with matters without delay.

“Since he did not answer the committee’s question as to whether he took medical advice as to whether it would be deleterious for Mr [A] to give instructions as to his will, the committee assumes that he made no such inquiry.”

The committee determined that C “failed to act in a timely manner to revisit his client to establish whether Mr [A] wanted to change his will, and if he did, to take and act on his instructions. The committee is of the view that his conduct was unsatisfactory.”

Any children?

The committee also looked at the question of whether C took appropriate steps to identify anyone else who might have a claim on Mr A’s estate and to advise his client accordingly. This issue was not raised by Mr B but “arose during the course of the committee’s inquiry”.

C said that on 9 April 2015 he was advised by Mr A’s brother that Mr A had a child. However, he and the child’s mother had divorced when he was very young.

C said that the 2006 will was made in the context of Mr A being recently widowed and having been in a relationship which produced no children. C said that he was not aware that Mr A had a child until 9 April 2015.

“It seems to the committee that a rather fundamental question that every competent lawyer ought to pose to a will maker is whether he/she has any children.

“If the answer is in the affirmative, there is an obligation to advise the will maker of his or her obligations, and of possible claims that a child excluded from the will might make. That then allows the will maker to make an informed decision,” the committee said.

As well as fining him, the committee ordered C to pay $1,000 costs.

Last updated on the 29th November 2016