SB v ES [2019] NZLCRO 115 (31 October 2019)

Last Updated: 21 November 2019

LCRO 23/2018

CONCERNING an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006

_AND

CONCERNING a determination of the [Area] Standards Committee [X]

BETWEEN SB

_Applicant

AND ES

_Respondent

_DECISION

The names and identifying details of the parties in this decision have been

_changed.

Introduction

[1] Mrs SB has applied for a review of the determination by [Area] Standards Committee [X] to take no further action in respect of her complaint concerning the conduct of the respondent, Mr ES.

Background

[2] In 2006, Mr and Ms SB instructed a firm of solicitors to attend to drafting wills and powers of attorney for them both.

[3] The ownership of their family home, which was at that time registered in their joint names, was changed to tenants in common in equal shares.

[4] Mr SB’s will, prepared at that time, provided that in the event of his death, Mrs SB would be accorded a life interest in Mr SB’s share of the family home.

[5] In February 2008, Mr and Mrs SB provided Mr ES with instructions to prepare new wills. Mrs SB maintains that Mr ES was instructed at that time to change the title of the home from a tenancy in common back to a joint tenancy.

[6] Mr ES made a file note recording his instructions and forwarded draft copies of the wills he had prepared to Mr and Mrs SB for comment.

[7] On 27 January 2010, Mr ES received further instructions from Mr and Mrs SB

to amend their wills.

[8] On 28 January 2010, Mr ES wrote to Mr and Mrs SB, making enquiry as to whether they had any further queries concerning their wills. He advised them that if they sought to make any changes in the future, they should contact him.

[9] Mr SB has passed away.

The complaint and the Standards Committee decision

[10] Mrs SB, through her counsel, lodged a complaint with the New Zealand Law Society Lawyers Complaints Service (NZLS) on 26 April 2017. The substance of her complaint was that:

(a) Mr and Mrs SB had instructed Mr ES to draft new wills for them in 2008 and 2010.

(a) Mr ES had been instructed in 2008 to change the title to the family home to record that Mr and Mrs SB be registered as joint tenants.

(b) It was Mrs SB’s clear recollection that both her and her husband were anxious to ensure the family home was held in joint tenancy, so that in the event of the death of one, the other would automatically become the outright owner of the family home by virtue of survivorship.

(c) Mr ES had failed to follow instructions in 2008, and had replicated a similar error when redrafting the wills in 2010.

(d) Mr ES had breached his fiduciary duties and the duty of care owed to

Mr and Mrs SB.

(e) There had been a reckless failure on the part of Mr ES to provide regulated services to his client, such failure amounting to misconduct as defined in s 7(1)(a) of the Lawyers and Conveyancers Act 2006 (the Act).1

(f) Mr ES’ conduct fell short of the standard of competence and diligence

expected of a reasonably competent lawyer. (g) Mr ES had failed to act competently.

[11] In response to the complaint, counsel for Mr ES submitted that:

(a) Mr ES’ file note of February 2008 indicates that there was no instruction provided to change the property ownership from tenants in common to joint tenants.

(b) Considering the circumstances of Mr and Mrs SB at the time, there were rational explanations for the family home to be owned on a tenants in common basis.

(c) Mr and Mrs SB were provided with draft wills to peruse prior to execution.

If those wills did not reflect their instructions, it could have been reasonably anticipated that they would have made requests for changes.

(d) The 2010 will provided an accurate representation of the intentions of

Mr and Mrs SB at the time instructions were provided to Mr ES. [12] Mrs SB responded to Mr ES’ submissions. It was argued that:

(a) If it had been Mr and Mrs SB’s intention when instructing Mr ES in 2008, that he was to exclude the provision present in their earlier wills in which each had provided for a life interest in the family home to the other, Mr ES’ reporting letter could have been expected to record that.

(b) Mr ES’ file note did not record instructions to remove the life interest

provision.

(c) The wills Mr ES had drafted reflected an unusual and risky approach to succession planning.

(d) Presenting draft wills to his clients did not absolve Mr ES from responsibility for making errors when drafting those wills.

1 The Legal Complaints Review Office does not have jurisdiction to make a finding of misconduct.

(e) Steps taken by Mr ES to advise Westpac and CBS Canterbury to record ownership of funds held in joint names, affirms that Mr ES had been instructed to change the ownership of the family home.

(f) If Mr ES’ instructions were accurately recorded in his file note, to replicate the wills “as is”, then it was evident that Mr ES had failed to follow that instruction by omitting the provision for a life interest.

(g) The fact that Mr ES had been provided with a copy of the title to the family home in 2006, recording that the property was held as tenants in common, suggests there was an instruction to Mr ES to take steps to revert the title to a joint tenancy.

[13] The Standards Committee identified the issues to be considered as: (a) Did Mr ES fail to follow instructions?

(b) Did Mr ES fail to convert the title from a tenancy in common to a joint tenancy?

(c) Did Mr ES act competently and take reasonable care?

[14] The Standards Committee delivered its decision on 14 December 2017.

[15] The Committee determined, pursuant to s 138(2) of the Act that no further action on the complaint was necessary or appropriate.

[16] In reaching that decision the Committee concluded that:

(a) it had been unable to discern anything in the material provided that supported complaint that Mr ES had failed to act on or in accordance with the instructions provided; and

(b) Mr ES had not been instructed in either 2008 or 2010 to change the existing ownership structure for the family home; and

(c) there was no evidence to support contention that Mr ES had failed to provide competent representation.

Application for review

[17] Mrs SB filed an application for review on 7 February 2018.

[18] She submits that:

(a) the Committee’s decision failed to address argument that Mr ES had been instructed to draft the wills “as is”; and

(b) evidence provided to the Committee supported the conclusion that Mr ES

had been instructed to change the ownership of the family home; and

(c) in covering letters to his clients, Mr ES had failed to explain the changes or effects of the draft will; and

(d) the defects in the drafting had not become manifest until the passing of

Mr SB; and

(e) the Committee had failed to give appropriate weight to the evidence. [19] Mr ES was invited to comment on Mrs SB’s review application.

[20] His counsel submits that:

(a) There is no indication from the file note made by Mr ES in 2008 that he was instructed to change the ownership structure of the family home.

(b) Mr ES was specifically instructed that the wills drafted were not to include provision for a life interest.

(c) Although the decision to have the ownership of family home as a tenants in common arrangement may have presented as unusual, there were rational explanations for having the ownership structure recorded in that fashion.

(d) The focus of the complaint had shifted from allegation that Mr ES had failed to change the ownership of the property, to accusation that he had neglected to ensure that the will included a provision for a life interest.

(e) Instructions given in respect to bank funds illustrated that Mr and Mrs SB had a clear understanding of the distinction between a joint tenancy and a tenancy in common.

(f) Mr ES accepts that he could have documented the instructions received more carefully.

(g) Mr and Mrs SB had further opportunity to amend their wills in 2010. The fact that they did not add back into the wills a provision for a life interest, further confirms that the wills were drafted in accordance with their

_{instructions.}

Hearing

[21] A hearing proceeded on 2 October 2019.

[22] Mr NM appeared for Mrs SB, Ms MF for Mr ES. [23] Mrs SB was also present.

Nature and scope of review

[24] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:2

... the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.

The Review Officer has broad powers to conduct his or 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. These powers extend to “any review” ...

... the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.

[25] More recently, the High Court has described a review by this Office in the following way:3

A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

2 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]–[41].

3 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [2].

[26] Given those directions, the approach on this review, based on my own view of the fairness of the substance and process of the Committee’s determination, has been to:

(a) Consider all of the available material afresh, including the Committee’s

decision; and

(b) Provide an independent opinion based on those materials.

Discussion

[27] Complaint is made that Mr ES in February 2008 failed to follow instructions to register the family home as a joint tenancy. It is also contended that he failed to prepare wills in accordance with instructions provided. It is argued that Mr ES, when preparing further wills for Mr and Mrs SB in 2010, replicated the error made in 2008, and failed to pick up on the fact that he had overlooked earlier instructions to change the ownership of the family home.

[28] The Lawyers and Conveyancers Act 2006 came into force on 1 August 2008.

[29] The first question to consider (and it does not appear to have been considered by the Committee nor remarked on by either counsel in the submissions filed) is whether the Review Office (or the Committee) has jurisdiction to consider the complaint which relates to the February 2008 conduct.4

[30] Section 351(1) of the Act provides as follows:

If a lawyer ... is alleged to have been guilty, before the commencement of this section, of conduct in respect of which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982, a complaint about that conduct may be made, after the commencement of this section, to the [NZLS].

[31] As noted in RV v Auckland Standards Committee, the policy and purpose of the provision must be to ensure that a person does not face proceedings under the Lawyers and Conveyancers Act for conduct which would not have resulted in proceedings being commenced under the Law Practitioners Act 1982.5

4 I note however that the Committee observed that prior to 1 August 2008 there was no requirement for a lawyer to provide a letter of engagement to their client, this indicating that the Committee had given some consideration to whether the conduct fell for consideration under the Law Practitioners Act 1982.

5 RV v Auckland Standards Committee LCRO 299/2011 (18 October 2012) at [51].

[32] In determining the question as to whether or not proceedings could have been commenced, it is not necessary to finally determine that proceedings would have been commenced under the Law Practitioners Act before a complaint may be accepted. The question is whether proceedings could have been commenced.

[33] Whether proceedings could have been commenced under the Law Practitioners Act or not, generally involves a consideration of whether or not the conduct was capable (if proven) of constituting misconduct or conduct unbecoming. What constitutes misconduct under the Law Practitioners Act has been well established by case law and the key principles have been carried forward into the statutory definition of misconduct in the Act. Section 7 of the Act defines misconduct as being conduct “that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable”.6

[34] Conduct unbecoming is not defined in the Act, but in B v Medical Council, 7 Elias J noted that: “conduct unbecoming... must be conduct which departs from acceptable professional standards. That departure must be significant enough to attract sanction for the purpose of protecting the public”.

[35] Mrs SB is elderly and, I am advised by her counsel, very anxious to have her conduct complaint brought to final resolution. Its continuation has been causing her anxiety and stress.

[36] Whilst I have given consideration to returning the matter to the Committee to address the issue as to whether at first step, the 2008 element of the complaint is properly addressed under the Act’s disciplinary regime, there is obvious need to have the matter resolved, and potential for further anxiety to result for Mrs SB if the matter is delayed further.

[37] I am satisfied that complaint that a lawyer has failed to follow their client’s instructions in the preparation of a will resulting in, as is alleged to be the case here, substantial disadvantage to the lawyer’s client, would likely be considered by a Committee to constitute conduct which would be regarded as “unbecoming” and conduct which would have been considered appropriate for investigation under the Law Practitioners Act 1982.

[38] When the issue was raised with counsel at the commencement of the review hearing, both were in agreement that it was appropriate that the review proceed.

6 Section 7(1)(a)(i) of the Act.

7 B v Medical Council [2005] 3 NZLR 810 (HC) at 810.

[39] I note that the complaint is advanced by Mrs SB, and that the evidence advanced in support of the complaint included three wills executed by Mr SB.

[40] The assumption throughout (and it has not been challenged at any point) is that Mr and Mrs SB jointly instructed Mr ES and provided Mr ES with mirror image instructions.

[41] Attention then turns to the question as to whether Mr ES failed to follow those instructions, specifically whether he neglected in 2008, to implement instructions that were said to have been provided to him at that time, and whether he replicated that error in 2010.

[42] In addressing that issue, the Standards Committee and now the Review Office, are being asked to consider whether instructions provided to a lawyer some nine years prior to a complaint being laid, were followed.

[43] There is obvious difficulty in establishing with certainty what instructions were provided to a lawyer by their client years after the instructions were given, in circumstances where both client and lawyer now disagree as to what the nature of those instructions were.

[44] That difficulty is compounded when there is little evidence (particularly documentary evidence) to assist in clarifying the nature of the instructions provided.

[45] It would be obvious that a Review Officer would be required to exercise extreme caution when issuing a decision in respect to complaint that a lawyer had failed to follow instructions in the preparation of a will, if that decision had potential to raise question as to whether the will was valid. The general approach adopted by the Review Office in circumstances where the focus of a professional conduct complaint is centred on argument that a testamentary document does not accurately reflect the instructions of the testator, has been to take the view that challenges to a will are properly addressed through the court.

[46] Mr NM accepted that for him to establish that Mr ES had failed to follow instructions, he would need compelling evidence to substantiate his client’s criticism of Mr ES’ alleged failure, particularly in view of the considerable passage of time that had elapsed since his client had first provided instructions to Mr ES.

[47] Mr NM submitted that he could identify a number of factors which, when viewed collectively, would constitute clear evidence that Mr ES had failed to follow instructions.

[48] I have given careful consideration to the arguments identified by Mr NM, and having done so, conclude that the threads Mr NM identifies as providing compelling evidence of Mr ES having failed to follow instructions, fall well short of establishing the position argued for by Mr NM.

[49] I will address the main arguments advanced by Mr NM in turn.

[50] Mr NM provides copies of wills prepared for Mr and Mrs SB in 2006, 2008, and

2010, a copy of the file note prepared by Mr ES in 2008, a copy of correspondence prepared by lawyers acting for Mr and Mrs SB prior to them providing instructions to Mr ES, and a copy of correspondence forwarded to the Westpac bank in 2008.

[51] It is the 2008 file note upon which Mr NM places greatest reliance.

[52] The file note provides a brief summary of the instructions provided to Mr ES at his meeting with Mr and Mrs SB in February 2008. The instructions are recorded in note form.

[53] Mr NM suggests that it would have been helpful if Mr ES had prepared a more careful and comprehensive record of the meeting, particularly as the matters in issue were of such significance for Mr and Mrs SB. That is a reasonable criticism to make.

[54] Mr ES accepted that he should have documented the meeting in more careful and comprehensive terms.

[55] It is regrettable that Mr ES did not prepare a more detailed file note, but the conduct issue he is required to respond to is not a complaint regarding the adequacy of his notetaking.

[56] The file note provides limited assistance in clarifying the issue which is at the nub of Mrs SB’s complaint, being allegation that Mr ES was instructed in 2008 to convert the title of the SB’s family home from a tenancy in common to a joint tenancy but failed to do so.

[57] Care must be taken to ensure that Mr ES’ brief note is not invested retrospectively with indication of instructions having been provided that were not recorded by him at the time, unless there is demonstrable evidence of a failure on Mr ES’ part to follow instructions.

[58] In 2006, Mr and Mrs SB instructed a firm of solicitors (not Mr ES’ firm), to convert the ownership of their family home from a joint tenancy to that of a tenancy in common. Mr and Mrs SB were recorded as tenants in common in equal shares.

[59] At the time the 2006 instructions were provided, Mr and Mrs SB were both elderly and whilst there is no evidence before me as to why the decision was made in

2006 to change the ownership, it was Mr ES’ view that the decision was likely to have been made with a consideration of the possibility that either Mr or Mrs SB would, at some stage, move into a retirement home.

[60] Changing the ownership structure may have been seen to have provided a degree of protection against possibility of the parties’ assets being diminished by the demands of meeting the costs of retirement home accommodation, and to have provided prospect of better opportunity for success in securing a Ministry of Health residential care subsidy.

[61] Irrespective as to the motivations, what is clear is that Mr and Mrs SB in 2006 had decided with the benefit of the legal advice available to them at the time, that it was to their advantage to take the family home out of joint ownership and to have the ownership recorded as a tenancy in common.

[62] This would have been a significant decision for Mr and Mrs SB’s and one presumably taken with a careful consideration of the consequences.

[63] In 2008, Mr and Mrs SB instructed Mr ES to change their wills.

[64] This much is clear from the brief file note Mr ES prepared. His file note records instructions were to draft the wills “as is”, but to make minor changes to the executors, to record minor variations to the specific bequests, and to remove the preference expressed in Mr SB’s earlier will as to where he wished to be buried.

[65] A significant difference between the will drafted for Mr SB in 2006 and the will prepared in 2008, was that the 2006 will provided that in the event Mr SB predeceased his wife, Mrs SB would be accorded a life interest in Mr SB’s share in the family home.

[66] This provision was removed from the 2008 will and was not reinstated in the

2010 iteration of the 2008 will.

[67] It is the absence of this provision which Mr NM identifies as exhibiting a lamentable failure on the part of Mr ES to follow instructions (that he was to prepare wills “as is”, replicating the 2006 wills except for the minor amendments identified). Further, if Mr ES had (as was alleged were his instructions) changed the ownership of the family home back to a joint tenancy, that would have ensured that both Mr and Mrs SB’s interest in the other’s share of the family home would have been protected. The removal of the other’s life interest in the family home that had been recorded in the previous wills would

have made sense, but only if the removal of that protection was compensated for by the anticipated change in the ownership structure of the family home.

[68] It would be immediately obvious that the removal of a clause providing a surviving spouse with a residual interest in the family home, could potentially leave the surviving spouse at risk of being uprooted from the family home.

[69] If one or more of the SB’s children who were the beneficiaries under the 2008 will wished to realise their father’s interest in the family home, Mrs SB’s security of tenure could be compromised.

[70] It is argued for Mrs SB that a family member has indicated a desire to have the home sold. This, understandably, is said to have caused Mrs SB a considerable degree of distress.

[71] Mr NM says it presents as inexplicable that Mr ES would allow for such a substantial change to be made to the wills without providing comprehensive advice to his clients. He argues that if Mr ES had received instructions to amend the wills by excluding the provision for a residuary interest, his file note would have been expected to have recorded such a significant instruction. Further, he emphasises that the removal of the residuary interest presents as inexplicable alongside the instructions Mr ES had received to draft the wills “as is”.

[72] I note that when first filing her complaint, the primary concern identified by Mrs SB was that Mr ES had neglected in 2008 to follow what was described as his key instruction, being a direction that he convert the ownership of the family home from a tenancy in common to a joint tenancy – reversing the instructions the SB’s provided to their lawyer in 2006.

[73] Ms MF, for Mr ES, submitted that focusing on the question as to whether Mr ES had either deliberately or through oversight neglected to include a life interest in the amended wills, represented a change in approach by the complainant, being that the initial complaint was that Mr ES had failed to follow instructions to convert the ownership structure to a joint tenancy.

[74] Mr ES was adamant that he had discussed the removal of the life interest provision in the wills with Mr and Mrs SB, and that they both were insistent that the provision be removed and made it clear that they understood the implications of taking that step. He is certain that he did not receive instructions to convert the ownership of the family home back to that of a joint tenancy.

[75] Mrs SB is equally confident in her recollection that Mr ES was instructed to convert the tenancy in common to a joint tenancy.

[76] I have no reason to doubt that both Mrs SB and Mr ES are providing their best recollection of events and think it reasonable that with the passage of time, both would have difficulty recalling some of the details as to what transpired at a meeting held in February 2008.

[77] It falls to Mrs SB to establish her case to the required standard of proof.

[78] Mr NM is critical of the fact that Mr ES’ file note fails to reference the instructions he says he was given to remove the life interest provision from the wills. I agreed with Mr NM that it could have been expected of Mr ES, that his file note would record those instructions. But it is also apparent that Mr ES’ file note makes no reference to him receiving instructions to change the ownership of the property. If Mr ES had been instructed to change the ownership and to make a substantial change to the existing wills, his file note would have been silent on two critical elements of his instructions.

[79] Mr NM argues that the best explanation for the failure of Mr ES’ file note to record an intention to remove the life interest provision from the wills, was that there would have been no need for those instructions to have been recorded as the SB’s instructions to change the ownership back to a joint tenancy would have achieved the desired outcome. Reverting to a joint tenancy would ensure that the surviving spouse’s interests were protected.

[80] Mr NM contends that when Mr and Mrs SB met with Mr ES in 2008, it was probable that they provided Mr ES prior to the meeting, with a search copy of the title to the property. This, says Mr NM, indicates that Mr ES was aware at the time of meeting with his clients, that his clients owned the family home as tenants in common. He suggests that the fact that Mr ES was provided with a copy of the title supports conclusion that he was being provided with instructions to amend the title.

[81] With every respect to Mr NM’s argument, this is drawing the longest of long bows.

[82] There could be a multitude of reasons as to why Mr and Mrs SB may have provided Mr ES with a copy of the title. To suggest that the provision of a title to a lawyer provides conclusive evidence that a lawyer has been instructed to take steps to change the ownership of a property, is entirely speculative.

[83] Mr NM notes that Mr and Mrs SB instructed Mr ES at the 2008 meeting to advise their bank that investment funds held by the bank were to be recorded as being owned by them as joint tenants, not as tenants in common.

[84] This instruction it is argued, provides further evidence of Mr and Mrs SB’s desire to restructure their assets to record that the ownership of those assets would be held jointly rather than as tenants in common.

[85] I do not consider that instructions provided to Mr ES concerning the investment funds remotely assists in establishing whether Mr ES was given instructions to change the ownership of the family home. It is argument that because there was evidence that Mr and Mrs SB wished to retain their investment funds as joint tenants, that they must have wanted to have the ownership of the family home registered in similar fashion. It is argument that ignores the fact that parties may, and frequently do, employ different structures to record ownership of different assets. It is argument that is entirely speculative. It does not, as Mr NM argues for, provide another meaningful thread in a chain of events leading to inescapable conclusion that Mr ES was instructed in 2008 to change the existing ownership of the property.

[86] It is suggested that “the instructions given to Mr ES in 2008 should be seen in light of the 2006 instructions given to [the previous law firm] which were to sever the joint tenancies of both the family home and their investments at that time”.8

[87] This is a difficult argument to follow. I am uncertain as to why instructions given to Mr ES in 2006, helpfully provide insight into, or clarification of, the instructions provided in 2008. The best that can be drawn from the 2006 instructions is that Mr and Mrs SB had clearly turned their minds to changing the ownership of the family home from a legal structure that automatically ensured that on the death of one, the deceased’s interest in the family home automatically passed to the other, to a structure that provided that each of their respective interests in the family home would be managed, on their death, in accordance with their testamentary instructions.

[88] It is unclear as to how the steps taken in 2006, can throw light on instructions provided in 2008. This reinforces the extent to which the argument advanced for Mrs SB, relies on the drawing of inferences or assumptions as to what it could have been expected Mr and Mrs SB’s instructions would have been, rather than providing firm

_{evidence of what those instructions actually were.}

8 [Lawfirm], correspondence to the Lawyers Complaints Service (26 April 2017).

[89] Mr NM submits that Mr ES’ file note in specifically recording reference to “as is”,

stands as evidence that his clients wills were to remain the same.

[90] Mr ES’ file note may have recorded an instruction to draft the wills “as is”, but some changes (not contested by Mrs SB) were clearly made to the wills. It is simply not possible at this distance, and on the evidence before me to conclude that the instructions received by Mr ES in respect to the wills, can be given such a broad-brush interpretation as to establish a failure on Mr ES’ part to follow instructions to register the family home in joint names.

[91] There is also a degree of inconsistency in the argument being advanced. If Mr ES’ instructions were to draft the wills “as is” (excepting for some minor changes), those instructions (presumably preserving the life interest provisions) would present as at odds with the legal consequences which would follow from changing the ownership back to a joint tenancy.

[92] The 2010 will (to which little reference was made at the review hearing) made minor changes in areas similar to those that had been made in 2008.

[93] The Committee noted that Mr ES had, in 2008 provided Mr and Mrs SB with drafts of their wills before finalising, and no request had been made from Mr and Mrs SB to make any amendments.

[94] Mr ES appeared to have taken a similar approach in 2010.

[95] It was argued for Mr ES that the fact that neither Mr nor Mrs SB had raised concerns when provided with copies of the wills gives clear indication that they were content with the wills and confirms that the wills accurately recorded their instructions.

[96] Against that, it was submitted that Mr and Mrs SB would have read the wills from the context of an understanding that Mr ES would have followed their instructions and facilitated the reversion of the ownership of the family home to a joint tenancy.

[97] I place little weight on either argument, both of which considered in isolation have merit, but both of which inevitably return the matter in circuitous fashion to the pivotal question as to whether Mr ES failed to follow instructions.

[98] I am not satisfied that it has been established on review that Mr ES failed to follow instructions. I summarise my reasons for reaching that view as follows:

(a) Mrs SB and Mr ES have a clear difference of recollections as to what instructions were provided at the 2008 meeting, but no evidence of

sufficient weight has been provided to establish that Mrs SB’s recollection is, on the balance of probabilities, more reliable than that of Mr ES.

(b) If there is to be a finding that Mr ES failed to follow instructions in 2008, the evidence to support such finding must be compelling.

(c) The significant passage of time that has elapsed since instructions were first provided to Mr ES, makes it significantly more difficult to establish that the work completed at the time was inconsistent with instructions provided.

(d) Evidence that Mr and Mrs SB provided Mr ES with a copy of the certificate of title to their property is not of any assistance in providing authoritative insight into the nature of the instructions provided by Mr ES in 2008, whether this is considered in isolation or alongside other arguments advanced for Mrs SB.

(e) Argument that Mr and Mrs SB were left in a difficult position, and that the manner in which their home had been registered (combined with the lack of a life interest provision in the wills) presented as a risky and unusual approach to succession planning, does not establish that Mr ES failed to follow instructions.

(f) Evidence that Mr and Mrs SB wish to have investment funds recorded as being owned by them as joint tenants, cannot be extrapolated to conclude that they also instructed Mr ES to register their ownership of the family home as a joint tenancy.

(g) The significant steps taken by Mr and Mrs SB in 2006 to sever the joint tenancy, gives clear indication that they considered there were advantages for them in doing so. They were clearly familiar with the process.

(h) Whilst I have emphasised the need to avoid speculation as to what instructions were provided, it presents as somewhat inexplicable that a lawyer, specifically provided with what are described as “pivotal” instructions, would totally ignore those instructions and then make a significant amendment to his clients’ wills without receiving instructions to do so.

[99] I see no grounds which could persuade me to depart from the Committee’s

decision.

Decision

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the

Standards Committee is confirmed.

_{DATED this 31}st _{day of October 2019}

R Maidment

Legal Complaints Review Officer

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mrs SB as the Applicant

Mr ES as the Respondent

Mr NM as the Applicant’s Representative

Ms MF as the Respondent’s Representative

Mr HT as a Related Person [Area] Standards Committee [X] New Zealand Law Society