KU v CI [2025] NZLCRO 47 (9 April 2025)

Last Updated: 8 May 2025

LEGAL COMPLAINTS REVIEW OFFICER ĀPIHA AROTAKE AMUAMU Ā-TURE

	[2025] NZLCRO 047 Ref: LCRO 77/2024
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a decision of the [Area] Standards Committee [X]
BETWEEN	KU Applicant
AND	CI Respondent

DECISION

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

Introduction

[1] Ms KU has applied for a review of a decision by the [Area] Standards Committee

[X] to take no further action in respect of her complaint concerning the conduct of the respondent, Mr CI.

Background

[2] Mr CI had acted for Ms KU’s parents.

[3] He was instructed to assist with putting in place succession arrangements that would provide that Ms KU’s brothers were positioned to be able to continue to run the family farming business while ensuring that all beneficiaries, following the death of the parents, received a fair share of the estate.

[4] A Deed of Family Arrangement was executed in 2008. The Deed was intended to implement the objectives detailed at [3] above.

[5] In 2020, Ms KU’s mother Mrs DU (Mrs DU) instructed Mr CI to make amendments to her will.

[6] Ms KU considered that Mr CI should not have accepted instructions from her mother, when the amendments made disturbed the objectives of the 2008 Deed.

The complaint and the Standards Committee decision

[7] Ms KU lodged a complaint with the New Zealand Law Society Complaints Service (Complaints Service) on 10 September 2023. She provided with her complaint, a comprehensive account of the family history which had resulted in the decision of the family members to enter into the Deed of family arrangement, and explanation of her reasons as to why she had concerns regarding Mr CI’s professional conduct.

[8] Ms KU summarised her concerns as complaint that:

• (a) Mr CI had acted for her late mother in the drafting and execution of amendments to her final will, when his previous involvement with representing her parents should have alerted him to the fact that he could not countenance changes which affected the Deed of Family Arrangement; and
  
• (b) Mr CI had been dilatory in attending to the administration of the estate; and
  
• (c) fees charged were excessive.
  

[9] The Complaints Service advised the parties that Ms KU’s complaint would be managed by an Early Resolution Services Committee.

[10] Mr CI was not required to provide a response to the complaint but the Committee did make request of Mr CI to provide it with copies of his invoices and time records.

[11] When supplying the Committee with the information requested on 26 February 2024, Mr CI took the opportunity to respond to Ms KU’s complaints. His response provided (as had Ms KU’s introduction to her complaints) an account of the family circumstances which had led to the parties entering into the Deed of Family Arrangement.

[12] Mr CI submitted that:

• (a) in the years prior to Mrs KU’s death, he had met with Mrs DU on many occasions; and
  

(b) Mrs DU had frequently expressed distress at the degree of acrimony within her family; and

(c) her concern at possibility that there would be dissension within the family following her death, had prompted her to have a memorandum drafted to be attached to her will, recording her wishes as to how chattels should be divided amongst family members; and

(d) Mrs DU had advised him that she wished to make a specific provision in her will for her sons, and

(e) suggestion that he should have been proactive in discouraging Mrs DU to make changes to her will, had been addressed in correspondence forwarded to a lawyer who may have been acting in a professional capacity for Ms KU; and

(f) administration of the estate had become difficult and protracted for a variety of reasons including what Mr CI perceived to have been an uncooperative approach adopted by Ms KU; and

(g) the complicating challenges that emerged in managing the estate led to a considerable workload, as evidenced by the extensive documentation that had accumulated.

[13] The Standards Committee delivered its decision on 20 May 2024.

[14] The Committee determined, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act) that no further action on the complaint was necessary or appropriate.

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

• (a) whilst Mr CI was aware that changes to Mrs DU’s will would affect the spirit of the Deed of Family Arrangement, Mr CI was required to act on his client’s instructions; and
  
• (b) Mr CI would have put himself at risk of breaching obligations and duties owed to his client, if he had failed to follow his client’s instructions; and

(c) scrutiny of Mr CI’s duties as an executor of the estate did not fall within the jurisdiction of the Committee; and

(d) but as the lawyer for the estate, Mr CI had an obligation and duty to the executors to act in a timely fashion and to ensure that fees charged were fair and reasonable; and

(e) a considerable amount of work had been done on estate work; and

(f) fees charged were fair and reasonable.

[16] In undertaking its examination as to the reasonableness of the fees charged, the Committee emphasised that its membership included lawyers and lay parties experienced in undertaking the assessment of fee complaints.

[17] The Committee also noted that its membership included lawyers who had significant experience in estate administration.

Application for review

[18] Ms KU filed an application for review on 27 June 2024.

[19] She submits that:

• (a) Mr CI had failed to advise Mrs DU that she was unable to make changes to her will; and
  
• (b) delay in finalising the administration of the estate, and the incurring of unnecessary expenses, were a direct result of Mr CI failing to advise Mrs DU that she could not amend her will; and
  
• (c) Mr CI had disrupted attempts by family members to resolve disagreements; and
  
• (d) Mr CI had failed to respond properly to requests to draft an agreement; and
  
• (e) the agreement eventually prepared, was still not “full and final”; and
  
• (f) Mr CI had frustrated efforts to have the allocation of an [Government agency] payment settled in an appropriate way; and

(g) Mr CI was refusing to finalise the distribution of estate funds because of the complaint that had been filed with the Complaints Service.

[20] Mr CI responded to Ms KU’s review application on 16 August 2024.

[21] Mr CI’s submissions, to a degree, reinforced the arguments that had been put to the Standards Committee.

[22] He emphasised in his response to Ms KU’s review application, that,

• (a) Mrs DU had been his client for a number of years; and
  
• (b) he had regularly met with Mrs DU and understood her situation and family circumstances “very well”; and
  
• (c) Mrs DU was insistent that she make further provision in her will for her two sons; and
  
• (d) the additional sums she wished to provide to her sons were modest considered in the context of the value of the estate and Trust assets; and
  
• (e) he had acted on Mrs DU’s instructions as it was his obligation to do so; and
  
  • (f) the estate had been difficult to administer; and
    
• (g) Mrs DU had requested that he be appointed an executor, as it was her expectation that he (Mr CI), would be positioned to “keep the administration on the rails”, and able to resolve any differences that may arise amongst her children; and
  
  • (h) an examination of his file confirms that it had been frequently difficult to obtain instructions and that correspondence despatched had been ignored for considerable periods of time; and
    
  • (i) fees charged were fair and reasonable and no objection could be taken to them.
    

[23] Ms KU responded to Mr CI’s reply to her complaint.

[24] Some of the information provided by Ms KU, while helpful in providing further insight into the broader family dynamics, did not directly engage the conduct issues.

[25] To the extent her submissions in reply traversed matters relevant to her complaints, Ms KU submits that:

• (a) Mr CI overstates the extent to which he “knew” Mrs DU; and
  
• (b) Mr CI provides no evidence to support the instructions he says he had been provided by her late mother; and
  
• (c) Mr CI had controlled the administration of the estate for his own purposes; and
  
• (d) Mr CI’s arrogant and aggressive approach to dealing with family members had created friction and contributed to delay in having the estate wound up.
  

Review on the papers

[26] The parties have agreed to the review being dealt with on the papers.

[27] I 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.

Nature and scope of review

[28] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:1

... 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

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

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.

[29] More recently, the High Court has described a review by this Office in the following way:2

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.

[30] 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

[31] Succession planning in longstanding farming families often presents a complex and emotionally charged challenge, as parents who have operated a family farm – frequently a multigenerational asset – seek to balance competing interests among their children.

[32] Typically, one or more of the children wish to continue running the farm and assume ownership, while others pursue paths outside the business, yet all expect equitable treatment in their parents’ inheritance. This tension is compounded by the farm’s financial reality: it is often asset-rich, with significant value tied up in land and equipment, but cash-poor, limiting liquid resources for equal distribution.

[33] To address this, arrangements such as a deed of family arrangement can be employed, transferring farm ownership to the child or children who will maintain it, while compensating non-farming siblings with other estate assets, such as proceeds from life insurance, off-farm investments, or staggered payments funded by future farm income.

[34] These solutions aim to preserve the farm’s legacy within the family while striving for fairness.

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

[35] It is precisely the context described, that provides the foundation for Ms KU’s complaints.

[36] She is concerned that a Deed of Family Agreement entered into with purpose to address circumstances similar to those described above, was compromised by amendments that had been made to her mother’s will, some years after the Deed of arrangement had been entered into.

[37] The point at which matters of estate planning and estate administration, intersect with professional conduct issues, is the argument advanced by Ms KU that Mr CI had breached professional obligations and duties, by assisting Mrs DU in amending her will. It is Ms KU’s contention that Mr CI had breached professional obligations and duties owed to her (and her siblings), by allowing her mother to make changes to her will.

[38] Ms KU frames her objection to Mr CI’s conduct, as argument that Mr CI was conflicted and could not, in the circumstances, act for her mother.

[39] A lawyer’s primary duty is to act in the best interests of their client, avoiding conflicts of interest that could impair their ability to provide independent and impartial advice. A conflict of interest may arise if the lawyer’s duties to one client (or former client) are materially adverse to the interests of another client (or former client) in the same or a substantially related matter.

[40] Mr CI had represented both the husband and wife in setting up the Deed of Family Arrangement. The joint representation of the couple suggests that their interests were aligned at the time, and the lawyer’s role was to facilitate an agreement that reflected their mutual intentions for their children.

[41] On the death of either husband or wife, the lawyer’s ongoing duty to the surviving spouse (as a continuing client) would typically allow him to take instructions from the survivor concerning estate planning and testamentary matters.

[42] Mrs DU took steps to change her will several years after the Deed of Family Agreement had been entered into.

[43] Ms KU’s complaints are grounded in argument that once the Deed of Family Arrangement had been entered into, her mother could take no steps which could impact the purposes and intention of the Deed at the date of its execution.

[44] The desirability of requirement for agreements to be kept to is understood, but if Mrs DU determined that she wished to make changes to her will, and instructed Mr CI to attend to those instructions, he was obliged and required to follow those instructions.

[45] It was not Mr CI’s responsibility to act as the gatekeeper or “enforcer” for the agreement previously entered into.

[46] If Mrs DU was committed (as she clearly was) to varying her will and Mr CI had refused to assist her, Mrs DU could have simply instructed another solicitor to implement the changes she required.

[47] It is understood that Ms KU was concerned that changes had been made that affected the distribution contemplated by the Deed of Family Agreement, but it was her mother’s decision that precipitated the unexpected further bequests to her brothers that she took objection to.

[48] In circumstances such as these, it would be usual for a lawyer instructed to alert their client to possibility that the changes proposed may cause disruption in the family.

[49] I cannot speculate as to what instructions Mrs DU may have provided to Mr CI at the time he was asked to implement changes to the will. Those instructions were, and remain, confidential to Mr CI. He has an ongoing duty to preserve that confidentiality. He is not able, as requested by Ms KU, to provide evidence of the instructions received.

[50] I agree with the Standards Committee that Mr CI would have put himself at risk of breaching duties and obligations owed to his long-standing client if he had failed to follow instructions.

[51] Ms KU makes complaint that there had been undue delay in progressing the administration of the estate.

[52] It is important to understand the dual roles undertaken by Mr CI.

[53] In his capacity as an executor, Mr CI assumed a fiduciary role, and was responsible for carrying out the wishes of the deceased. He is required to act in the best interest of the beneficiaries while ensuring all legal and financial responsibilities are met.

[54] In his capacity as the lawyer acting for the executors, Mr CI had a number of responsibilities including but not limited to, obtaining probate, advising the executors on the interpretation of the will, identifying and securing assets, ensuring that outstanding debts and expenses of the estate were identified and paid prior to distribution, advising on estate tax obligations, assisting in managing disputes or disagreements amongst

beneficiaries, communicating with the beneficiaries, and ultimately, attending to distribution of the estate’s assets.

[55] One of the issues raised by Ms KU on review cannot be addressed. She complains that Mr CI had frustrated “efforts to have allocation of an [Government agency] payment settled in an appropriate way”.

[56] This issue was a matter that fell to be managed by the executors.

[57] If co-executors find themselves at an impasse on an estate administration matter, regrettably the intervention of the court may be required.

[58] But the fact that Mr CI may have disagreed with Ms KU (both in his role as an executor and in his capacity as the lawyer for the estate) as to how a particular matter should be resolved, does not raise any professional conduct issues.

[59] Ms KU does not provide evidence to support argument that Mr CI had provided advice that was deficient.

[60] There was disagreement amongst the beneficiaries as to how the [Government agency] payment received by their late mother had been applied. Mr CI took the view that costs involved in litigating or contesting a disagreement over the [Government agency] payment would be an unnecessary drain on the assets of the estate.

[61] He was entitled to advance that position in his role as executor, and similarly entitled in his capacity as lawyer for the estate, to caution the executors that continuing disagreement on a particular issue could prove costly for the estate.

[62] Ms KU strongly maintains that the delay in completing the settlement of the estate, along with the accumulation of unnecessary costs, stemmed from Mr CI’s failure to advise Mrs DU that modifications to her will were not permitted.

[63] This is relitigating the argument addressed above.

[64] Mr CI attributes delay in progressing the estate to dissension amongst the beneficiaries and executors, a reluctance on the part of Ms KU and her sister to respond to communications, and a particularly uncooperative approach adopted by Ms KU.

[65] Ms KU provides little evidence to support her contention that Mr CI had caused delay.

[66] It is clear that a number of contentious issues contributed to, and frustrated, the administration of the estate proceeding as smoothly as it may have.

[67] Having carefully examined Mr CI’s time records and invoices, and considered the issues engaged in the administration of this estate, I find myself in agreement with the Standards Committee that there is no evidence to support conclusion that Mr CI had been responsible for undue delay in progressing the administration of the estate.

[68] Ms KU submits on review, that Mr CI had failed to respond promptly to requests to draft an agreement recording a settlement that had been reached. She says that the agreement when prepared, was incomplete.

[69] This issue was not identified by Ms KU as an issue of complaint when initially filing her complaints with the Complaints Service.

[70] A Review Officer cannot address fresh matters of complaint on review.

[71] That leaves the question of fees.

[72] I have examined the fees charged by Mr CI with reference to:

• (a) time records,
  
• (b) invoices,
  

(c) the rule 9, 9.1 factors.

[73] I consider Mr CI’s hourly rate of $450 to be reasonable for a practitioner of Mr CI’s background and experience.

[74] Mr CI has been in practice since [redacted].

[75] The rule 9.1 factors of particular application here are:

• (a) 9.1(a) – time and labour expended; and
  
• (b) 9.1(b) – the skill, specialised knowledge and responsibility required to perform the services properly; and
  
• (c) 9.1(f) – the complexity of the matter and the difficulty or novelty of the questions involved; and
  
• (d) 9.1(g) – the experience, reputation, and ability of the lawyer.
  

[76] Ms KU’s concerns in respect of the fees (and these are understood) stem primarily from her firm and genuinely held conviction that Mr CI should not have assisted her mother in changing her will. The administration of the estate would, in Ms KU’s view,

have been smoothly and expeditiously resolved, but for Mr CI’s failure to dissuade her mother from making changes to her will, this prompting the disagreements that were a significant factor in contributing to delay. This fundamental error was compounded, argues Ms KU, by Mr CI’s obstinate refusal to cooperate in settling areas of disagreement that could and should have been capable of prompt resolution.

[77] Ms KU does not simply suggest that Mr CI was unhelpful and uncooperative. She criticises him for being arrogant and abusive in his dealings.

[78] For his part, Mr CI complains that Ms KU was uncooperative and obstructive.

[79] It is not possible on the evidence available to reach a firm view as to which of the parties, in attributing blame for delay to the other, provides the most accurate account of the events that shaped the progress of the administration of the estate.

[80] I am then inevitably drawn back to an examination of the issues engaged in the administration, and an examination of the work undertaken as reflected in the time records and invoices.

[81] That examination draws me to conclusion that fees charged were fair and reasonable.

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

Anonymised publication

[83] Pursuant 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.

Decision

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Standards Committee is confirmed.

DATED this 09TH day of April 2025

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:

Ms KU as the Applicant Mr CI as the Respondent Ms LI as a Related Party

[Area] Standards Committee [X] New Zealand Law Society