New Zealand Law Society - Advised will was valid despite being revoked

Advised will was valid despite being revoked

Published on 3 April 2020

Lawyer John Campion has been censured and fined $1,500 by a lawyers standards committee after he advised that a will was valid when it had been revoked by a subsequent marriage.

Mr Campion was also ordered to pay the deceased’s children a total of $2,604 compensation for the legal fees they incurred as a result of Mr Campion’s incorrect advice.

He was further ordered to reduce his fees from $4,500 to $2,000; to refund $2,500 to the estate; and to pay the Law Society | Te Kāhui Ture $1,500 as a contribution towards costs.

The deceased’s will appointed Mr Q as executor of the estate, and Mr Q instructed John Campion on the estates administration.

Mr Campion applied for probate, which was granted.

As the will did not provide for two of the deceased’s children, Mr Q proposed that the children enter into a Deed of Family Arrangement to equally share the estate.

In response, Mr Campion advised Mr Q that:

  • his role was to uphold the terms of the will;
  • a Deed of Family Arrangement may be invalid; and
  • the deceased’s children should each seek independent legal advice.

Children sought advice

Two of the deceased’s children sought advice from another lawyer, Mr R.

Mr R advised Mr Campion by letter that the executor and deceased’s children had entered into a Deed of Family Arrangement distributing the estate to the children in equal shares.

Mr R also indicated that Mr Q had instructed him to attend to the estate administration and requested a transfer of the estate’s files and funds to him.

Mr Q and the deceased’s children complained to the Law Society about the incorrect advice Mr Campion had given them.

The death certificate held on Mr Campion’s file showed that the deceased had been married twice and that information “clearly showed [the deceased] had remarried after he had made his will,” the committee noted.

“It should have been apparent to Mr Campion that [the deceased] had remarried after the date of the will and therefore, under s 18(1) of the Wills Act 2007, the will had been revoked.

“Consequently, Mr Campion should have been aware it was not possible to make an application for probate and ought to have advised Mr [Q] the appropriate course of action was to apply for administration.

“The committee considered the existence of children born after [the deceased’s] first marriage and who were not named in the will should have put Mr Campion on notice of the possibility of a second marriage.

“It disagreed with Mr Campion’s submission that there was no reason to inquire further. In the circumstances, a reasonable practitioner would have queried whether there had been a subsequent marriage that could invalidate the will.”

Advised that will valid

Additionally, Mr Campion’s file note records he advised one of the deceased’s children that, despite the second marriage, the will was valid and only provisions relating to the spouse had been revoked.

“This is clearly incorrect in view of s 18 of the Wills Act 2007,” the committee said.

“A reasonable lawyer practising in estates should have been aware of s 18 and its effects. While this occurred after probate had been granted, it showed Mr Campion did not correctly understand s 18.”

In view of that, the committee said it was satisfied Mr Campion had not acted competently or consistently with his duty of care and was in breach of rule 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. It found Mr Campion’s conduct to be unsatisfactory under s 12 of the Lawyers and Conveyancers Act 2006.

Considering age, circumstances and professional history, the committee decided that name publication was appropriate. It considered there may be other former clients affected by Mr Campion’s conduct who would benefit in knowing they can have their own matters considered by a standards committee.

“Furthermore, Mr Campion’s conduct needed to be publicly acknowledged to protect the reputation of the profession and to educate other practitioners that such conduct is considered unacceptable,” the committee said.