RLF v DN [2020] NZLCRO 9 (29 January 2020)

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LEGAL COMPLAINTS REVIEW OFFICER ĀPIHA AROTAKE AMUAMU Ā-TURE
	[2020] NZLCRO 09 Ref: LCRO 116/2019
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	RLF Applicant
AND	DN Respondent

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

[X] to take no further action in respect of his complaint concerning the conduct of Mr DN, at the relevant time a partner with [DNPT], barristers and solicitors (the firm).

r DN acted in the administration of the deceased estates of Mr LF’s mother (Mrs LF), and subsequently, Mr LF's elder brother, BG.

n 1958, Mr LF’s parents purchased the family home at [Residential Address, City]. They separated [XX] years later in 1975. In 1980 Mrs LF transferred ownership of the family home to BG who lived with her.

n 14 September 2007 Mrs LF made a will in which she appointed BG as executor and trustee, left specific items of her jewellery to her daughter JL, the remaining jewellery to her granddaughter CE, and provided for the estate residue to be shared equally among such of her children as survived her.1

rs LF died on 10 January 2014. BG, for whom Mr DN acted, applied for probate of her will which was granted on 26 February 2014.

ine and a half months later, on 15 December 2014, Mr DN informed (by letter) Mr LF that he had received funds from Mrs LF’s bank account. He enclosed his “final trust statement” to 8 December 2014, and his note of costs “in the final administration of the estate”. He said he had paid $513.47 into Mr LF’s nominated bank account. He concluded stating that “[t]his completes administration” of Mrs LF’s estate.

one of the contents of the family home, which included Mr LF’s personal property and cars stored on the property, had been distributed at that time.

y mid-2017, BG, being unwell, was admitted to hospital. JL was adjudicated bankrupt on [date] 2018. On or about 10 August 2018, two months after BG's second admission to hospital, Mr DN commenced acting as BG’s (successor) property attorney as a consequence of JLs bankruptcy.2

rom 10 August 2018 until 5 February 2019 Mr LF’s lawyers and Mr DN exchanged communications (written and telephone) about the administration of Mrs LF’s estate. In particular, about the contents of the family home which included Mr LF’s personal property, the cars stored at the family home, BG’s welfare, and after BG’s death on 16 February 2019 the administration of [BG’s] estate.

ollowing Mr LF’s lawyer’s request on 17 September 2018, Mr DN provided a copy of Mrs LF’s will on 5 October 2018 which it appears was not done when probate was granted twenty months earlier.

n his complaint lodged with the Lawyers Complaints Service on 5 April 2019, Mr LF asked for an explanation from Mr DN of [Mr DN's], and JL’s actions concerning

2 Enduring property power of attorney - s106, Protection of Personal and Property Rights Act 1988.

the administration of both Mrs LF’s, and BG’s estates. He asked for access to the family home to obtain his personal property. In the meantime, he asked for a “stop to disposing any more property” until “all issues are resolved”.

e sought reimbursement of legal fees, and other costs he had incurred, and compensation for his time to “retrieve” his, and Mrs LF’s property.

e asked a number of questions including why Mr DN had not provided him with a copy of Mrs LF’s will in 2014, and about the nature of, and disposal of the contents of the family home. He also asked about Mr DN’s actions taken as BG’s property attorney, about BG’s welfare, and about BG’s estate.

r LF claimed it was not until 5 October 2018 when Mr DN provided him with a copy of Mrs LF’s will, requested by his lawyer on 17 September 2018, that he “became aware of [the] content” of Mrs LF’s will.3

r LF claimed the administration of Mrs LF’s estate was not complete in December 2014 because the contents of the family home, including his personal property, remained in the family home which was owned and occupied by BG.4

e explained he had not wished to deprive BG of the use of the contents, but “did not know there was any urgency” for him “to claim [his] share” of the contents. He said he had previously provided BG with details of his items in the family home, but “regardless”, Mr DN “should have reminded BG” those items were not [BG’s], “to give...away”.5

or these reasons, Mr LF said Mr DN’s 15 December 2014 letter to him that the administration of Mrs LF’s estate was complete, was “mislead[ing]”.

3 This is not consistent with Mr LF’s following statement that until he received Mr DN’s 25 January 2019 email, informing him he “should have raised” his personal property “issue” earlier, he was “unaware of the content”.

4 The property included furniture, motor vehicles, family mementos and photographs.

5 Items said to belong to Mr LF and Mrs LF include stamps, scout and girl guide uniforms and World War I embroidery.

r LF claimed his lawyer asked (by letter) Mr DN on 31 January 2019 what was “happening” about BG’s affairs. He said not having received a response he was “worried” what Mr DN “had done” with BG’s assets. He said apart from Mr DN, there was “no one else to keep an eye” on what BG was doing.

e said he had only just received a copy of probate of BG’s 2014 will which appointed JL, who had been adjudicated bankrupt on 29 May 2018, as executor and trustee. He said JL seemed to be “carrying on clearing” the family home which he expected would have been “under [Mr DN’s] direction”.

e asked why, as next of kin, he had not been consulted by JL and Mr DN about the disposal of BG’s body which had been cremated, and ashes interred.

e also asked why Mr DN had not, in accordance with BG’s 21 November 2017 instructions, prepared a new will for BG.

ollowing an initial assessment by the Lawyers Complaints Service (LCS), Mr LF’s complaint was dealt with through its Early Intervention Process which I refer to later in this decision.

he Committee delivered its decision on 26 June 2019 and determined, pursuant to sections 138(1)(f), and 138(2) of the Lawyers and Conveyancers Act 2006 (the Act), that no further action on the complaint was necessary or appropriate.

n reaching that decision, the Committee noted that its task was not “to provide answers to all [Mr LF’s] questions to personal queries or to provide legal advice”, but to consider Mr DN’s conduct which Mr LF had complained about.

aving noted that Mrs LF had transferred the family home to BG a number of years earlier, the Committee stated that Mr DN’s professional duties were owed to BG as executor and trustee of Mrs LF’s will.

he Committee said Mr DN’s role as lawyer acting in the administration of Mrs LF’s estate was (a) to apply for the grant of probate, (b) to obtain from BG details of estate debts, specific gifts to be distributed, Mrs LF’s bank accounts to be closed, and then (c) to pay the residue to the residuary beneficiaries.

n the Committee’s view, Mr DN’s 15 December 2014 advice letter to Mr LF that the administration of Mrs LF’s estate was “complete” was no more than Mr DN’s “confirm[ation]” that “his role as estate lawyer” had ended.

he Committee concluded that it was for BG, as executor and trustee, not for Mr DN as the estate lawyer, to distribute the contents of the family home.

he Committee said it was necessary for Mr DN to obtain instructions from BG, as executor, before releasing information about the contents in the family home, or the contents themselves. For that reason, it “would therefore be unusual” for Mr DN, who was acting in the administration of Mrs LF’s estate, “to personally distribute any estate chattels”.

n reaching that position, the Committee noted that Mr DN had informed Mr LF’s lawyer on 17 January 2019 that (a) he had been “advised”, presumably by JL, that “3 x boxes of chattels”, which he would “request ... be delivered” to Mr LF “as a matter of priority”, had been “put aside” for Mr LF, and (b) he was “willing to meet” Mr LF at the family home to locate “further specific items which [Mr LF] can establish he owns”.6

oting that the Family Court had jurisdiction over attorneys in respect of enduring powers of attorney, the Committee declined jurisdiction to consider Mr LF’s

6 The passages quoted are contained in Mr DN's 17 January 2019 email to Mr LF's lawyer, Ms AD.

complaint that apart from Mr DN, as BG’s attorney, there was “no one else to keep an eye on what [BG] is doing”.7

he Committee similarly declined jurisdiction to consider Mr LF’s enquiry about why Mr DN, having been instructed by BG in 2017 about a new will, did not draft the will.

he Committee noted that there were a number of reasons why a person may not complete a will ranging from “a simple change of mind to a lack of capacity”, and it was not the Committee’s role “to look behind” BG’s 2014 will for which probate had been granted by the High Court.8

r LF filed an application for review on 7 August 2019. In following communications to this Office he provided (a) a chronology of events from 14 September 2007 (the date of Mrs LF’s will) until 17 July 2019 (the date of his lawyer’s final letter to Mr DN), and (b) his comments on the Committee’s decision.

e says he has received “nothing” of Mrs LF’s “inheritance and only a token amount of [his] property”. He says Mr DN had “refused or ignored [his] reasonable requests” concerning personal property contained in the family home belonging to Mrs LF’s estate, BG’s estate, and him

r LF says his lawyer had advised him that upon Mrs LF’s death Mr DN ought to have provided him with a copy of Mrs LF’s will, and it was “foolish” not to have done so. He says he finds Mr DN’s surprise at his subsequent enquiry about Mrs LF’s estate “extraordinary”.9

MMMHe repeats he is uncertain whether JL had a copy of Mrs LF’s will, but says JL’s statement that Mr DN told her BG “inherited everything and could do what he likes with

8 Wills Act 2007, s 14 (validity of wills); Administration Act 1969, s 5 (probate).

9 However, Mr LF also says he is "aware now" BG was not required to provide him "with a copy of the will or disclose its contents even though [he] was a beneficiary".

it” showed she did not have a copy. He said JL nonetheless took Mrs LF’s jewellery and other property.

e says because Mr DN had acted for Mrs LF and her sister RO, the Committee’s statement that Mr DN owed professional duties to BG as executor and trustee of Mrs LF’s will “ma[d]e no sense” to him. “[E]specially” with Mr DN seemingly having “taken [it] upon himself” to act as executor and trustee of Mrs LF’s will instead of applying to the Court for directions when BG became unwell, and later upon BG’s death.

r LF claims (a) Mr DN had not carried out Mrs LF’s wishes expressed in her will, and had ignored his lawyer’s requests for information about both Mrs LF’s and BG’s respective estates, and (b) Mr DN and JL had “no regard for the law”.

e says he took “at face value” Mr DN’s 15 December 2014 statement (by letter) that administration of Mrs LF’s estate was complete.

e says he understands that because it was BG’s task, as executor and trustee, not Mr DN as the estate lawyer, to distribute the contents of the family home, the Committee had declined jurisdiction to consider his complaint about the way in which the contents were distributed.

owever, he says although adjudicated bankrupt, JL “carried on sorting, dealing and deciding” what to do with Mrs LF’s personal property. He says following BG’s death, it was not up to Mr DN or JL to decide who would complete the administration of Mrs LF’s estate.

r LF repeats that as a bankrupt, JL was forbidden from acting as BG’s attorney. He says in such circumstances the Family Court conferred on him “the right to be consulted” about BG’s personal care and welfare.

hilst he says he appreciates the Committee having declined jurisdiction to consider Mr DN’s role as BG’s property attorney, he says difficulty of access to the Family Court should be of concern to the Committee.10

10 Mr LF’s reference to the legal costs of an application to the Family Court.

owever, he says Mr DN had “not acted in [BG’s] best interest”, had “failed to ensure” JL “abide[d] by the [bankruptcy] rules”, and had “advised, encouraged and overseen [JL’s] wrongdoing”. He “believe[s]” Mr DN, and JL, under Mr DN’s direction, had “not handled [BG’s] finances properly”.

e contends that when aware of “wrongdoing” the Committee ought to bring this to the attention of the appropriate authority.

r LF says the Committee ought to at least have “check[ed]” whether Mr DN contravened relevant professional rules concerning BG’s 2017 will instructions.

lthough invited to do so, Mr DN has not submitted a response to Mr LF’s application for review.

his review has been undertaken on the papers pursuant to s 206(2) of the Act, which allows a Legal Complaints Review Officer (LCRO) to conduct the review on the basis of all information available if the LCRO considers that the review can be adequately determined in the absence of the parties. The parties have agreed to the review being dealt with this way.

record that having carefully read the complaint, the response to the complaint, the Committee’s decision and the submissions filed in support of and in opposition to the application for review, there are no additional issues or questions in my mind that necessitate any further submission from either party. On the basis of the information available I have concluded that the review can be adequately determined in the absence of the parties.

he nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:11

... 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.

ore recently, the High Court has described a review by this Office in the following way:12

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.

iven 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 consider all of the available material afresh, including the Committee’s decision, and provide an independent opinion based on those materials.

he Complaints Service dealt with Mr LF's complaint through its Early Intervention Process (EIP). This involves a Standards Committee conducting an initial assessment of a complaint and forming a preliminary view as to outcome.

f the Standards Committee’s preliminary view is that the complaint lacks substance, a Legal Standards Officer (LSO) will inform the lawyer concerned of the Standards Committee’s preliminary view, inviting response. Any response is noted in a file note and provided to the Committee, which then completes its inquiry into the complaint.

n 30 May 2019 an LSO telephoned Mr DN and informed him that the Committee had reached a preliminary view that it would take no further action on Mr LF’s complaint. Asked whether he wished to provide a response to the complaint, Mr DN indicated that “other than to confirm [the Committee’s] understanding of [the] situation”, he “chose not to”.

id Mr DN, who was acting for BG as executor of Mrs LF’s will in the administration of her estate, owe Mr LF, as a residuary beneficiary, any professional duties?

f so, did those professional duties extend to providing Mr LF with a copy of Mrs LF’s will following her death on 10 January 2014, or grant of probate on 26 February 2014?

ad the administration of Mrs LF’s estate been completed by 15 December 2014, the date of Mr DN’s letter to Mr LF to that effect? If not, did Mr DN owe Mr LF any professional duties concerning distribution of Mrs LF’s personal property which Mr LF claims were still contained in the family home?

ollowing BG having become incapable of managing his affairs during mid-2018, and following BG’s death on 16 February 2019, was Mr DN required by any professional rules to inform Mr LF and JL (or their legal representatives), as surviving beneficiaries, they would need to apply to the Court to administer the balance of Mrs LF’s estate if they could not agree how to do so?

n essence, Mr LF claims that Mr DN breached professional duties he says were owed to him as a beneficiary of Mrs LF’s will (a) by not providing him with a copy of the will following Mrs LF’s death in January 2014, or the grant of probate six weeks later,

and (b) by not ensuring that BG, as executor, had distributed Mrs LF’s personal property contained in the family home.

he question is what professional duties, if any, Mr DN owed Mr LF, as a beneficiary of Mrs LF’s estate? Also, because Mr DN was instructed by BG, as executor, to act in the administration of Mrs LF’s estate, to what extent was Mr DN required to report to Mr LF at the commencement of the estate administration, and of progress during administration?

he term “client”, although not defined in the Act, or in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules), is included in the meaning of “retainer” described in r 1.2 as “an agreement under which a lawyer undertakes to provide or does provide legal services to a client, ....”. In that sense, “client” is referred to, and appears in a number of the rules as the recipient of legal services from a lawyer.13

lawyer must respond to a client’s inquiries in a timely manner, disclose to his or her client information that is relevant to the retainer.14 A lawyer must also take reasonable steps to ensure that the client understands the nature of the retainer, keep the client informed about progress, and consult the client about steps to be taken to implement the client’s instructions.15

he High Court has stated that “analogous to the lack of duty on the part of trust solicitors towards beneficiaries”, where a lawyer, such as Mr DN, is acting in the administration of an estate, the lawyer owes his or her professional duties “to the executor, not to the beneficiaries of that estate”. In explaining that there is no “direct client relationship between the beneficiaries and the firm”, the Court referred to “the general reluctance of the Court towards extending solicitor’s duties to third parties”.16

13 The Australian Solicitors’ Conduct Rules (Law Council of Australia, June 2011) similarly provide that client, “with respect to the solicitor or the solicitor’s law practice means a person (not an instructing solicitor) for whom the solicitor is engaged to provide legal services for a matter” – see also the similar definition in the Law Council of Australia Model Rules of Professional Conduct and Practice (March 2002), current when the Lawyers and Conveyancers Act 2006 commenced on 1 August 2008.

15 Rules 7.1 and 1.2. A “retainer” is defined as “an agreement under which a lawyer undertakes to provide or does provide legal services to a client ...”.

16 Davis v Mancer [2015] NZHC 3005 at [26]. Also see discussion in SY v LT LCRO 001/2018 (December 2019) from [72].

or those reasons, and as noted by this Office, a beneficiary may ask the estate lawyer to do something, but cannot instruct a lawyer to do so.17

oreover, by definition the interests of an executor of the will on the one hand, and beneficiary on the other are different. The executor’s sworn statement to the Court to “faithfully execute the will ... in accordance with the law” may not necessarily align with the beneficiary’s interest, actual or intended, in the estate.18

hen acting for a client, a lawyer “must, within the bounds of the law and [the] [r]ules, protect and promote the interests of the client to the exclusion of third parties”. Therefore, for a lawyer who acts for the executor, and a beneficiary, there is a high likelihood of “a more than negligible risk” that the lawyer may not be able to discharge his or her professional duties to both. If so, this would prohibit the lawyer from acting for both.19

or these reasons, other than the professional duties of a broader nature contained in the Rules, and the professional duty of “integrity, respect and courtesy” owed to third parties, Mr DN would not have owed Mr LF the professional duties otherwise owed to his client executor, BG.20

r LF complains Mr DN, who acted for BG as executor of Mrs LF’s will, did not, either at the time of Mrs LF’s death on 10 January 2014, or six weeks later on 26 February 2014 on the grant of probate, provide him with a copy Mrs LF’s will.

n executor “is the person appointed by a [will maker] to administer his or her property and carry out the provisions of the will”.21

AAAHaving applied for and obtained probate of the will, the executor’s duties, which comprise “certain specific statutory and common law duties and powers”, include burying the deceased, making an inventory of assets, paying all duties, paying the deceased’s

20 Professional duties including the duty "to uphold the rule of law and to facilitate the administration of justice" (rule 2) which reflects the fundamental obligation in s4(a); "[t]he overriding duty of a lawyer...as an officer of the court" (rule 2.1); not to "attempt to obstruct, prevent, pervert, or defeat the course of justice" (rule 2.2); the duty to "promote and maintain proper standards of professionalism in the lawyer's dealings" (rule 10).

21 Dr N Richardson Nevill’s Law of Trusts, Wills and Administration (10th ed, LexisNexis, 2010) citing Re Stewart [2003] 1 NZLR 809 (HC) at [24].

debts, and testamentary expenses and debts, paying legacies, distribution of the residue to those entitled, and keeping accounts.22

ecause it is the executor who “carries into effect a deceased’s will”, until probate is granted it is for the executor, not the lawyer acting for the executor in the administration of the estate to decide to whom the will, and how much of the will’s contents, will be made available.23

pon the grant of probate, the will can be searched at the High Court’s probate registry. For that reason, there is no need for an executor to withhold a copy of the will from a beneficiary.24

t might be contended, following Mrs LF’s death and again after the grant of probate, that Mr DN could have informed Mr LF and JL he was acting in the administration of Mrs LF’s will, and what instructions, possibly including provision of a copy of the will to Mr LF and JL, BG as executor had given to [Mr DN].

owever, as I have noted it was for BG, as executor, to instruct Mr DN to provide a copy of the will to Mr LF and JL which BG appears not to have done by June/July 2018 when he became incapable of managing his own affairs.

n the absence of information about any such instructions BG may have provided Mr DN there could be no basis to criticise Mr DN for not having done so. The conclusion I have reached from my consideration of the information produced on this aspect of Mr LF’s complaint is that no issues of a professional nature arise for Mr DN.25

he second limb of Mr LF’s complaint is that by not distributing Mrs LF’s personal property, Mr DN did not ensure that BG, as executor, completed administration of Mrs LF’s estate.

23 CCH IntelliConnect NZ Trusts and Asset Planning Guide Commentary: Trusts – Wills and Intestacy (online looseleaf ed, Wolters Kluwer) at [123-401]; ADLS Legal Practice Manual Administration of Estates (vol 6 – ch 3) at [4.7].

24 Senior Courts (Access to Court Documents) Rules 2017, r 8(2); Ministry of Justice “Apply for probate & get a copy of a will” (14 November 2019) <www.justice.govt.nz/courts/high-court/apply-BBB for-probate-and-get-copy-of-will/>.

y June/July 2018, three and a half years after the grant of probate of Mrs LF’s will to BG in February 2014: (a) it appears the contents of the family home continued to remain there, and (b) as noted, BG was no longer capable of managing his own affairs.

ntil then, particularly where, as Mr LF says, Mrs LF’s personal property was largely of sentimental, and of little monetary value, it is reasonable to expect that BG, while capable, and assisted by Mr LF and JL, would have identified ownership of, and distributed all personal property in the family home.

r LF explains that after BG moved into care on 9 August 2018, instead of enabling him “to visit the property and claim [his] items”, Mr DN had JL, who “[did] not know or care about [the] family history”, and had “no right” to do so, “go through” the family home and “dispose of things as she saw fit”.

e says JL who was bankrupt had “no legal standing to deal with” Mrs LF’s estate. Yet he says without authority, and in conjunction with JL, Mr DN had “disposed” of his and Mrs LF’s property. He says JL initially told him she would sell other items and divide up the sale proceeds, but later said the items “weren’t worth as much as she thought”. He says he did not know what “happened” to those items.

e says when JL “began preparing” the family home for sale, he asked his lawyer to arrange with Mr DN for him to “claim [his] own possessions and [his] share” of the family home contents.

e says JL had sent him some items, but not items with his “name on them”. He says Mr DN was “continuing to dispose” of his personal property. He described Mr DN as having been “adversarial and antagonistic” towards him and his lawyers, not responding to all his lawyer’s written communications, and not allowing him access to the family home “to identify and collect [his] belongings”.

r LF says if BG, as executor and trustee, could “change” Mrs LF’s will, and Mr DN, “as BG’s lawyer” could “do as he pleases” on the administration of Mrs LF’s estate, there “seem[ed] no point to having a will”.

t is to be noted that if an executor, after obtaining grant of probate, becomes incapable of acting or is unfit to act, the Court may discharge or remove the executor.26

26 John Earles and others Dobbie’s Probate and Administration Practice (6th ed, LexisNexis, Wellington, 2014) at [36.3.1]: "the new grant can be de bonis non with will annexed and limited during the capacity of the administrator".

As appears to have been acknowledged by Mr LF’s lawyer, where a sole executor, such as BG, becomes incapable, then “the Court will recall” probate and “make a fresh grant of administration to the property manager or next of kin of the incapable [executor]”.27

s I have noted, from or about 10 August 2018, Mr DN commenced acting as BG’s attorney. Unless BG had previously provided Mr DN with a description of the personal property contained in the family home, including ownership, and how it was to be distributed, it is likely only Mr LF and JL could have done so.

owever, as Mr LF says, because JL “had been distancing herself from” him since her bankruptcy in May 2018, communications between them were through his lawyer who was dealing with Mr DN.

part from Mr DN’s reference to (a) “3 x boxes of chattels put aside” by JL for Mr LF, (b) the cars, and (c) BG’s stamp collection, an inventory of personal property requested by Mr LF’s lawyer on 31 January 2019 was not provided by Mr DN.

s with the previous issue, Mr DN did not owe Mr LF, as a beneficiary, the professional duties he owed to BG, his client executor. Although Mr DN owed Mr LF the “courtesy” of keeping him “advised of progress” in the administration, without BG having provided him with an inventory accompanied by instructions to make disclosure, there is similarly no basis to blame or criticise Mr DN if he did not have the information sought by Mr LF.28

n 17 January 2019 Mr LF’s lawyer, Ms AD, acknowledged that the cost of Mr LF applying to the Court for him to complete the administration of Mrs LF’s estate outweighed the minimal monetary value of Mrs LF’s personal property. Ms AD suggested that “the most cost-effective way” would be for BG, Mr LF and JL “to reach agreement on the division of chattels”.

ecause Mr LF and JL were not in communication with each other, it seems there was little, if anything, Mr DN could do other than continue, as he appears to have done, to communicate with Ms AD in their efforts to resolve how to distribute Mrs LF’s personal property.

27 Dobbie’s at [36.3.5]: "the grant is for the use and benefit of such administrator until the original [executor] regains capacity".

n essence, the task of distributing Mrs LF’s personal property, including the collection of Mr LF’s personal items, (a) initially lay with BG as sole executor and trustee of Mrs LF’s estate, and (b) from June, July 2018 when BG became incapable of managing his own affairs, and without either Mr LF or JL applying to the Court to administer Mrs LF’s estate, “less formally” lay with Mr LF and JL.

do not consider any professional issues arise for Mr DN in the way he conducted himself concerning this aspect of Mr LF’s complaint.

r LF is critical of Mr DN having assisted JL, following BG’s death, to dispose of Mrs LF’s personal property.

y the date of BG’s death, 16 February 2019, distribution of Mrs LF’s personal property, including collection by Mr LF of his personal items, and resolution of ownership of the cars stored at the family home, remained outstanding.

wo weeks later, Ms AD asked Mr DN to respond to her previous emails to Mr DN – in particular, about ownership of the cars, Mrs LF’s dining room suite, and the World War 1 embroidery. Ms AD asked about probate of BG’s will, and who BG had appointed as executor.

n his response on 15 July 2019, Mr DN said he had been “unable to substantiate any” of Mr LF’s claims. He said BG had rejected Mr LF’s claim to BG’s stamp collection. He said it was “reasonable to assume ownership” of the personal property in the family home passed to BG when Mrs LF transferred the family home to him in 1980. He informed Mr LF of the sale prices required by Mrs LF’s estate for two of the cars.

lthough Mr DN did not provide details about probate of BG’s will requested by Ms AD on 28 February 2019, Mr LF says by 5 April 2019, the date of his complaint, he had received a copy of probate of BG’s 2014 will which appointed JL as executor.

gain, through his lawyer, Ms AD, on 22 July Mr LF rejected BG’s estate’s ownership claim to the personal property in the family home. He said because one of the cars, the Ford 10, had been jointly owned by him and BG, ownership had passed to him on BG’s death. He said he did not want to purchase the other car, and only wanted

his stamp collection which bore his name. He said he agreed to meet with Mr DN and JL at the family home to identify Mr LF’s items.

n his final response on 26 July 2019, Mr DN referred to the dispute between Mr LF on the one hand, and BG’s estate and JL on the other, about ownership of the personal property in the family home. He said JL, whose position was that she had disposed of the personal property “in an appropriate manner”, would arrange for the Ford 10 to be left outside the family home for collection by Mr LF, and would sell the other car. He said JL had not located Mr LF’s stamp collection, and had instructed him to “discontinue correspondence” on the issue.

observe that the bankruptcy of a person, such as JL, whom BG appointed as his executor, whilst relevant to the Court’s discretion whether to grant probate to that person, would not necessarily have disqualified the person from that role.29

also observe that on the death of a sole executor, such as BG, to whom probate of Mrs LF's will was granted, s 13 of the Administration Act 1969 provides that the executor appointed by the will of the deceased executor, BG, becomes the executor of the first will “without any new grant from the court”.30 Because “the office of executor of the first estate is transmitted to the executor of the executor[’s]” will, a “new probate of the original will is not required”.31

t follows that on BG’s death, assuming probate of BG’s will was granted to JL, it seems that JL, as executor, would have become responsible for the distribution of Mrs LF’s personal property which would necessarily have involved identification of items owned by each of BG, Mr LF, and JL.

n summary, with the ownership and distribution of personal property contained in the family home not having been resolved at the time of BG’s death in February 2019, it was open to Mr LF to apply to the Court to (a) oppose the grant of probate of BG’s will to JL32 and (b) if probate was granted to JL, seek her removal as (successor) executor of Mrs LF’s will, both on the grounds of her bankruptcy.

29 Sections 6 and 21 of the Administration Act 1969. See John Earls and others Wills and Succession (NZ) (online looseleaf ed, LexisNexis) at [11.5]. Note that s 104 of the Insolvency Act 2006 provides that "[p]roperty held by the bankrupt in trust for another person does not vest in the Assignee".

32 Section 60 of the Administration Act 1969 – by lodging a caveat before the grant of probate.

t is reasonable to assume that by not doing so Mr LF had followed his lawyer’s advice referred to above. In my view, Mr DN’s conduct in these circumstances does not give rise to any professional issues adverse to him.

r LF says it was “not in BG’s best interest” for Mr DN to be responsible for BG’s personal care and welfare “without input from family”. He asks whether he or Mr DN ought to have obtained directions from the Family Court.

owever, he also says having been advised by his lawyer of the time and cost of making such an application, including “call[ing] JL into check”, he had not done so. He said he “believe[d]” Mr DN used these circumstances to [Mr DN’s] “own advantage” by not “being held to account”.

s previously noted, Mr DN informed (by email) Mr LF’s lawyer on 10 August 2018 that as a consequence of JL’s bankruptcy, “in relation to [BG’s] property, [his] appointment as successor attorney [was] operative”. He stated because he was “conscious of BG’s wish” that JL look after his affairs, he proposed, “[s]ubject to JL’s agreement”, having her assist him in his “role as BG’s attorney”.33

f during administration, an executor, such as BG, who had applied for and to whom probate has been granted becomes incapable of acting, or unfit to act, then his (successor) attorney, Mr DN, would have had to apply to the High Court to administer Mrs LF’s estate.34

s noted by the Committee, the Family Court (enduring powers of attorney) and the High Court (probate), not a Standards Committee or this Office on review, have jurisdiction in respect of such matters.

r LF refers to probate having been granted to JL to administer BG’s 2004 will. He asks why BG did not sign a new will, instructions for which he says Mr DN received

33 Section 106 of the Protection of Personal and Property Rights Act 1988 (circumstances in which an enduring power of attorney ceases to have effect).

34 Section 21 of the Administration Act 1969 (discharge or removal of executor). This is different from the situation where probate has been granted to the attorney of a sole executor who becomes mentally incapable within three months of the will maker’s death: sections 9A and 9B of the Protection of Personal and Property Rights Act 1988.

from BG on 21 November 2017. He has not, however, produced any evidence or other information which explains why BG did not proceed with a new will.

r DN owed his professional duties to his client, BG, from whom the will instructions had been received.

oreover, lawyers must “protect and hold in strict confidence all information” which concerns “a client, the retainer and the client’s business and affairs acquired in the course of the professional relationship” between the lawyer and client. That duty of confidence continues beyond that lawyer-client relationship, and on the client’s death “the right to confidentiality passes to the client’s personal representatives”.

t is not therefore open to a Standards Committee, or this Office on review in the absence of any information produced about Mr DN’s conduct in relation to that matter, to take Mr LF’s enquiry any further.

or the above reasons, pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Committee to take no further action in respect of Mr LF’s complaint about Mr DN is confirmed.

ursuant to s 206(4) of the Act, I direct that this decision be published so as to be accessible to the wider profession in a form anonymising the parties and bereft of anything as might lead to their identification.

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

New Zealand Law Society
FIMMBAIAHMMIIIIIAAITBMBIIOAAHAMHHHMUBIHIUBMCFWMFATTMIFHIDTOTGMITAMBHHMMHHHMPHCMHMTTBMITTPITHPAITFHHHBMMHMPMCAHHFFBNNMOMM

New Zealand Legal Complaints Review Officer

RLF v DN [2020] NZLCRO 9 (29 January 2020)