Siblings – brother and sister – retained Melbourne Lawyers & Mediators (MLM) in mid-2019 after discovering their elderly 84-year-old father had passed away, his funeral and burial completed without their knowledge two weeks after the fact. Prior to his passing, their father resided in his home with their older brother and the older brother’s family. Both clients were alienated from the father by the older brother; they were shut out of their father’s home, phone numbers blocked from the father’s phone and allegations made against them so that intervention orders could be taken out. One of the siblings decided to take matters into his own hands and went to the father’s home to demand he see him. The older brother told them their father was in hospital due to sickness. Thus began their search for their father. They called almost every hospital in Victoria until they were able to speak to the palliative care unit at the Northern Hospital where they received the grave news that their father had passed two weeks prior.

The deceased left an estate with a net value of approximately $704,297.91. Following their discovery of his death, they had also been notified that they were left a modest legacy in their father’s last Will as follows:

  1. $5,000 legacy to the sister;
  1. $20,00 legacy to the younger brother, together with a legacy of $20,000 from another deceased child which was left to the younger son on their death; and

The residue of the estate was left to their older brother who was still residing in the father’s home.

When MLM were engaged to act, the older brother, listed as an executor under the Will, had advertised his intention to apply for a grant of Probate of the Will of the deceased. A Title search also revealed that a few months prior to the father’s passing, the brother had engaged solicitors together with the father, to transfer the father’s home to his and the father’s name as Joint Proprietors. No consideration was given to the father for this Transfer. The solicitors who acted were the same solicitors who acted on behalf of the deceased in relation to his Estate Planning matters. They had previously drafted 6 other Wills on behalf of the deceased prior to the Final Will. At no stage during their 6-year engagement with the deceased, had they ever asked for a capacity statement from the deceased’s General Practitioner despite his age and vulnerability, nor did it seem any alarm bells rang when the deceased gave conflicting instructions that he would not transfer his property to his son in fear that he would be kicked out of his own home. These facts were revealed in Subpoena material requested by MLM. The Subpoena material also revealed that the son was present in the room when the deceased gave instructions for the last Will. In that same consultation, they jointly gave instructions that the transfer occur “to decrease any challenges to the Will”. The effect of such a transfer of the property meant that upon the father’s death, the older brother would automatically inherit the property as the surviving proprietor. The transfer seemed to entirely benefit the older brother without any benefit for the father.

In early 2020, MLM commenced proceedings in the County Court of Victoria seeking to reverse and set aside the transfer and return the property to the estate, claiming unconscionability and undue influence. The clients both also had foreshadowed claims against the deceased’s estate for further provision for their proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1958, respectively.

During the process, matters became complicated as both executors renounced probate of the Will. As there were no executors left, the sister, applied for Administration of the Estate with the Will annexed. Unfortunately, further undue delay was caused by the older brother’s previous solicitors as they wrongly claimed they had a lien over the Will due to outstanding and significant invoices to the older brother. MLM sent letters of demand referring to case law Hawkins v Clayton [1989] HCA 15; 164 CLR 539, and in particular the judgement of Brennan J who said:

A solicitor to whom a testator entrusts the custody of his will is a bailee of the will during the lifetime of the testator. The solicitor is bound to deliver it to the testator at any time during his life – for the testator may wish to alter it – and the solicitor can claim no lien upon it… From the time when the ecclesiastical courts enjoyed exclusive jurisdiction in probate matters, the custodian of a will of a deceased testator has been compellable to produce it to the court. The law did not recognize a solicitor’s lien affecting that obligation.”[1]

The sister was successful in her application for the Grant of Administration with the Will annexed, and following same, was able to continue to proceed with the County Court proceedings. The Court then made procedural orders for a mediation to occur prior to the Trial that was scheduled to take place in June 2023. The parties attended mediation in February 2023 where they agreed to administer the estate of the deceased and settle the Proceeding to avoid further expenses and the inconvenience of litigation.

The matter was a difficult case in terms of the legal perspective. It was allusive due to the difficulty in predicting how the Courts would apply the law. It is also challenging for the parties themselves as it involves parties all part of the same family with facts and issues relating to their father. The evidence at Trial would consist of personal matters to the family; facts that were personally and emotionally sensitive. The assets at stake, although significant for those involved, in the context of legal fees, were not very significant.

MLM’s main goal with this matter was to ensure that there would be a complete resolution for everyone involved so that they could then move on with their lives and grieve the loss of their father without any looming cases. All parties made genuine efforts during the mediation to present offers of settlement. The matter settled with a commercially pragmatic resolution. The parties were delighted with the outcome and grateful that they would no longer be in the Court system. MLM considers this to be a commercial success for all parties involved.

By Nilufer Okur
March 2023

[1] Hawkins v Clayton [1989] HCA 15; 164 CLR 539