Australian probate disputes

Call for probate overhaul
Mark Russell
September 25, 2005
theage.com.au
http://www.theage.com.au/news/national/call-for-probate-overhaul/2005/09/24/1126982270134.html
WHEN a senior Melbourne magistrate heard the case of how the frustrated son of a deceased dentist had attacked the solicitor who drew up his father’s will, he called on the State Government to change the laws for disputed wills.

But that was five years ago and magistrate Robert Tuppen, who retired from the bench on Tuesday, is still waiting for authorities to act.

Mr Tuppen raised his concerns when told the estate of dentist David Austin White had been estimated at $550,000, until a family dispute over the will ended up before the Supreme Court.

White’s son, Mark, his two siblings and their mother had become embroiled in the dispute, which included her $300,000 winning Tattslotto ticket.

The subsequent legal fees spent trying to resolve the issue reduced the estate’s value to just $90,000, and tensions boiled over during a mediation hearing.

An angry and disillusioned Mark White pushed the solicitor, Keswick Steel, into a wall and then bloodied his head and nose in a scuffle. White pleaded guilty to recklessly causing injury and was fined $750.

At the end of the case, Mr Tuppen called for changes to allow some will disputes to be heard in lesser jurisdictions so people were not “deprived of everything”.

The law in Victoria currently requires any disputes involving deceased estates valued at more than $15,000 to be heard in the Supreme Court, with cases often costing tens of thousands of dollars in legal fees.

A bipartisan parliamentary committee headed by Labor MP Rob Hudson was set up two years ago to investigate the issue but was put on hold while attempts were made to set up a uniform national model to administer deceased estates, wills, family provisions and intestacy.

The national review, initiated by the Standing Committee of Attorneys-General, is being co-ordinated by the Law Reform Commission of Queensland, but critics claim it is taking too long.

The Victorian Parliament Law Reform Committee’s executive officer, Merrin Mason, said the national review was expected to be completed some years ago but the two final reports on deceased estates and the distribution of property when a person dies intestate would not be released until the end of the year.

“It’s just one of those situations where it wouldn’t be sensible to start developing a state system when we know there’s all of this work being done to try and get consistency across jurisdictions,” Ms Mason told The Sunday Age.

A spokeswoman for state Attorney-General Rob Hulls said the Administration and Probate Act dated back to 1958 and needed to be updated.

Victorian Legal Ombudsman Kate Hammond said the number of complaints against lawyers over wills, estates and probate was the third highest behind family and de facto issues and conveyancing.

Ms Hammond said her office had received 526 complaints against lawyers over family and de facto issues in 2004-05, 333 over conveyancing and 249 over wills, estates and probate.

When the Victorian parliamentary inquiry into wills and deceased estates finally begins some time next year, it will examine:

■The desirability of new legislation and procedures to deal with the administration of a deceased estate.

■Whether the Administration and Probate Act should be amended to provide alternative mechanisms for the resolution of disputes that involve small estates.

■Whether the Magistrates Court and County Court should also be given jurisdiction to deal with grants of probate and administration, and deal with disputes relating to wills.

■And whether amendments are necessary in relation to the charges and commissions of lawyers who also act as executors.

One critic who believes the system is in urgent need of an overhaul is Collingwood businessman Diarmuid Hannigan, who has been involved in a dispute with lawyer Ian Bult, from law firm Russell Kennedy, over his mother’s estate. He claims Mr Bult, the co-executor of Elizabeth Hannigan’s estate, is unfairly withholding his inheritance. Mr Bult has denied the claim.

Complaints by Mr Hannigan to the Legal Ombudsman, Attorney-General and the Victorian Law Institute’s professional standards body have proved futile.

Institute lawyer Penny Antonov said Mr Hannigan had no legal rights to file a financial loss claim against Mr Bult because he was not Mr Hannigan’s lawyer, so there was no solicitor-client relationship.

CHARGING UP, IN MINUTE DETAIL Ian Bult, a senior partner with the Melbourne law firm Russell Kennedy, charges $425 an hour for his services, plus GST. His senior associate, Arthur Bolkas, charges $330 an hour. They billed the estate of Elizabeth Hannigan, who died last year, more than $32,000 in legal fees following a dispute with her eldest son, Diarmuid, over the will. The list of charges includes:

■$99 for 18 minutes perusing and checking holding statements (Bolkas).

■$99 for 18 minutes working on file note (Bolkas).

■$42.50 for six-minute phone call.

■$66 for 12 minutes reviewing file (Bolkas)

■$255 for 36 minutes drafting two letters (Bult).

■$264 for 48 minutes preparing statements to beneficiaries (Bolkas).

■$340 for 48 minutes briefing counsel (Bult).

■$127.50 for 18 minutes working on letter (Bult).

■$382.50 for 54 minutes perusing medical records (Bult).

■$429 for one hour and 18 minutes on letter to beneficiaries (Bolkas).

The list of charges to the estate goes on. And on …

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    I dream of it costing tens of thousands. The costs associated with my father’s estate is over $100,000, and we didn’t even go to court!