HK v YS
| Jurisdiction | New Zealand |
| Judgment Date | 17 February 2015 |
| Neutral Citation | [2015] NZLCRO 8 |
| Date | 17 February 2015 |
| Docket Number | LCRO 64/2012 |
| Court | Legal Complaints Review Officer |
Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
and
Concerning adetermination of the [North Island] Standards Committee [X]
[2015] NZLCRO 8
LCRO 64/2012
Application for review of a decision that no further action be taken in respect of a practitioner who was a beneficiary of a client's will — practitioner denied acting in respect of the will and said he had referred the testator to another lawyer when it became apparent she was going to name him in the will-will was executed in 2000 — practitioner agreed a settlement with the complainant (who was the other beneficiary) in 2012 and the complainant had sought probate of the will — practitioner denied evidence of a doctor that that he had discussed the client's testamentary capacity 12 years earlier with the practitioner — said that the conversation had been about an Enduring Power of Attorney in favour of the complainant, which had been subsequently executed — whether the evidence from the GP was reliable — whether there was jurisdiction to consider a complaint about conduct that occurred more than six years before the commencement of the LCA — whether there was evidence that the practitioners conduct had reached a high threshold of wrongdoing required by the Law Practitioners Act 1982.
In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:
Mr HK as the Applicant
Mr OD as the Applicant's representative
Mr YS as the Respondent
Mr PC as the Respondent's representative
[North Island] Standards Committee [X]
New Zealand Law Society
Mr HK applied for a review of a decision by the [North Island] Standards Committee [X] dated 9 March 2012 1 in which the Committee decided that further action on Mr HK's complaint against Mr YS was unnecessaryor inappropriate, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act).
Mr HK's complaint arises because Mrs RV named Mr YS as a beneficiary in a will she made in May 2000(the 2000 will), which halved what would otherwise have been Mr HK's entitlement as sole beneficiary under a will she had made in 1999 (the 1999 will).
Mrs RV died on 29 January 2010. Mr HK challenged Mr YS's entitlement under the 2000 will. They reached a negotiated settlement over their entitlements as
beneficiaries, and signed a settlement agreement on 5 August 2011. As executor, Mr HK applied to the High Court for a grant of probate for the 2000 will, and Mr YS received a reduced benefit as agreed. However, the settlement agreement did not dispose of Mr HK's concerns that Mr YS had behaved unprofessionally when the 2000 will was made and in receiving a benefit, and he made a complaint to the New Zealand Law Society (NZLS)The Standards Committee made reference to the correspondence from the parties, including Mr HK's detailed complaint dated 23 November 2011, 2 further information contained in an opinion provided by Mr AB, 3 and Mr YS's responses.
Conduct
The Committee considered whether “Mr YS's presumed acceptance of some benefit of the will in the 2011 settlement” supported it enquiring into conduct concerns. The Committee's view was that because Mr HK had agreed to settle, with the presumed benefit of legal advice, the matter was “difficult to pursue”, and the “Committee was reluctant to enquire into a confidential settlement”.
In all the circumstances, the Committee decided that further action was unnecessary or inappropriate on that aspect of the complaint, pursuant to s 138(2) of the Act.
/2000 Conduct
The Committee also considered Mr HK's complaint about Mr YS's involvement with Mr ET when he drafted the 2000 will, purportedly with an inappropriate level of input from Mr YS as a prospective beneficiary.
The Committee referred to the six-year time limit in s 351(2)(b) of the Act, and formed the view that it had no jurisdiction over this aspect of the complaint, because the events occurred more than six years before the commencement of the Act.
Mr HK objected to both of those outcomes, and applied for a review on the basis that Mr YS concealed his knowledge that Mrs RV may have lacked capacity in 2000 so
Mr HK says Mr YS instigated Mrs RV making the 2000 will, and was instrumental in its drafting. He says the change from the 1999 will was major and Mr YS was under an obligation to disclose the change to Mr HK, as Mrs RV's attorney from 2001 onwards.
After Mrs RV died, Mr HK's view is that Mr YS should have disclaimed his share under the will. Instead he says Mr YS's decision to accept his share was motivated by self-interest and greed, and his conduct in that regard is inconsistent with his obligations as a lawyer.
The role of the Legal Complaints Review Officer (LCRO) on review is to reach her own view of the evidence before her. Where the review is of an exercise of discretion, it is appropriate for the LCRO to exercise particular caution before substituting her own judgement for that of the Standards Committee, without good reason.
The LCRO has broad powers to conduct her own investigations, including the power to exercise for that purpose all the powers of a Standards Committee or an investigator, and seek and receive evidence. The statutory power of review is much broader than an appeal, and gives the LCRO discretion as to the approach to be taken on any particular review and the extent of the investigations necessary to conduct that review.
Both parties attended and were represented by counsel at a review hearing in [City] on 28 January 2015.
Mr YS's evidence at the review hearing was that Mrs RV had told him she did not want to leave the whole of her estate to Mr HK, and when it became apparent that she intended to name him as a beneficiary, he put her in touch with Mr ET so she could obtain independent legal advice on her will.
Mr YS says he did nothing to influence the drafting of the will, or Mrs RV. He had input as any beneficiary might, but did nothing to influence Mrs RV's choice of beneficiaries, and was not present when she executed the 2000 will.
Both Mr YS and Mr HK acknowledge that in 1999 and 2000, Mrs RV was quite capable (although not necessarily in a legal sense) of making other wills, appointing other trustees and executors, and naming different beneficiaries, without either of them knowing.
In the course of the review, further evidence came to light. In June 2012 Mr HK's lawyers submitted evidence that had not been before the Standards Committee, in the form of an affidavit by Dr GG, who had been Mrs RV's GP for a number of years before she was hospitalised in 2001.
Mr HK says he was previously unaware that Dr GG had been Mrs RV's GP, and only met him by chance at a social function in 2012. When the two of them struck up a chance conversation, the doctor says that Mr HK introduced the subject of Mrs RV. Dr GG found himself able to disclose confidential patient information to Mr HK relating to Mrs RV. He deposed to being “appalled” by the discovery that Mr YS had benefited under her estate, when Mr HK told him about that.
The general thrust of Dr GG's evidence is that Mr YS had contacted him a “few weeks” after “about early 2000”, and they had discussed Mrs RV's mental capacity. 4 The doctor said that he could “recall making it clear to Mr YS that [he] did not consider that she was at that time competent to make a will”, because he had concluded that “she could be easily influenced and could make irrational decisions which were not in her best interests”.
I have carefully considered the evidence provided by Dr GG, who, at the time of his conversation with Mr YS, had over twenty-five years of experience as a GP. Dr GG does not say that he is a specialist with the necessary expertise to form a reliable professional opinion on legal capacity and dementia sufferers. His affidavit reports a conversation he had over the phone one evening with Mr YS. He does not say that he undertook any tests on Mrs RV to ascertain whether she had legal capacity. Nor does he say Mr YS (or Mr ET) asked him to do so.
Although Dr GG describes Mr YS's enquiry in his affidavit as a request for an “opinion” about her mental capacity, the conversation he describes sounds more like a preliminary enquiry. Dr GG's “opinion” is unlikely to be able to withstand robust interrogation especially this long after the events he describes.
Counsel for Mr HK emphasises the doctor's evidence that when he told Mr YS he did not consider Mrs RV was competent to make a will at that time, Mr YS “appeared deflated” at the news. I consider that evidence is highly speculative, and at risk of having been tainted by Mr HK's account of events in conversation with the doctor.
Overall, the doctor's evidence carries little weight. It is unreliable because 12 years had passed since the conversation he reports. The doctor has provided no contemporaneous record to support his recollections. As counsel for Mr HK says the affidavit was prepared by his office, I have no doubt that if any such record had been available, the doctor would have referred to it in his affidavit. Finally, I am concerned that in the course of their conversation, Mr HK communicated his concerns about Mr YS's motivations, thereby tainting the doctor's recollections albeit inadvertently.
I emphasise that none of my comments should be taken as a criticism of Dr GG or Mr HK;...
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