Attwood Marshall Lawyers Estate Litigation Senior Associate, Martin Mallon and Commercial Litigation Senior Associate, Jade Carlson discuss a recent case where a Queensland lawyer was reprimanded for not properly advising her clients about contesting the validity of a Will and filing Court proceedings within the required time limit.
In the complex and often emotionally charged world of estate litigation, the stakes are incredibly high, and the margin for error is slim. When a loved one passes away, and questions arise about the validity of their Will or the adequacy of its provisions, time is of the essence should anyone want to challenge or contest it. There are strict time limits in all states and territories in Australia with respect to contesting the validity of a Will and it is very important that family members or executors in an estate obtain prompt legal advice from lawyers experienced in this complex area of law.
Seeking the right legal advice from lawyers who specialise in estate administration and estate litigation is crucial when there are issues regarding the validity of the Will. It’s very important to ‘go on the front foot’ and file a Caveat to prevent the issue of a grant of probate by the Court. Online Court searches can usually determine the status of a grant of probate very quickly. The recent case involving Natalie McDonald, a principal lawyer who was reprimanded for unsatisfactory professional conduct, underscores the importance of this.
McDonald’s failure to act with the required diligence and competence not only jeopardised her client’s position but also served as a stark reminder of what can happen when a lawyer is not well-versed in the intricacies of the law, they are serving their clients or do not practice exclusively in an area of law.
At Attwood Marshall Lawyers, this is just one of the reasons why we have specialist legal teams who practice exclusively in their chosen area of law.
Estate litigation matters are inherently complex, with strict time limitations that can make or break a case. As seen in the McDonald case, a simple oversight, such as failing to conduct standard searches to see if probate had been granted and to lodge a Caveat, can lead to irreversible or uncertain and expensive consequences.
Case in focus: Natalie McDonald Law
Natalie McDonald, the principal of Natalie McDonald Law, was recently reprimanded by the Queensland Civil and Administrative Tribunal (QCAT) for unsatisfactory professional conduct.
Ms McDonald was ordered to pay a $2,000 fine for her failure to act with competence and diligence while representing two men who were concerned about the validity of a Will. The clients first met with McDonald in her office, in Queensland in January 2020 to discuss whether they had been adequately provided for in the Will. The men were appointed as joint alternative executors along with their half-sister.
The tribunal heard after this initial meeting, McDonald failed to follow standard procedure to search the Supreme Court of Queensland’s eCourts file and the Queensland Reports Probate Notice Database to see whether anyone, including the half-sister, had applied for, or been granted probate, (the Supreme Court’s recognition that a Will is legally valid).
The Legal Services Commissioner (LSC) said if McDonald had conducted those searches, either during the meeting or afterwards, “the urgency of taking steps to preserve the complainants’ position ought to have become apparent, given [the half-sister] had filed her application”.
“The LSC submits that McDonald’s inexplicable delay in first filing the application, despite having instructions to do so, and then, second, following up on the status of the application, departs from the standard of competence, diligence and promptness.”
Legal Services Commissioner
In addition to a failure to conduct this search efficiently, McDonald did not advise the clients about applying for a caveat against a grant of probate, (a notice filed in the Supreme Court of Queensland that there are concerns as to the validity of a Will).
In March 2020, McDonald learned that her clients’ half-sister had applied for and been granted probate. However, it wasn’t until one month later that McDonald sent an application by mail to the Supreme Court to have the grant of probate set aside. The following day, McDonald received a letter from the half-sister’s solicitors that stated the estate would be distributed if the application was not received within a fortnight.
When the deadline arrived, another letter arrived informing McDonald that the estate had been distributed. Two cheques addressed to each of the clients were included in the second letter, thus depriving her clients of the opportunity to contest the validity of the Will.
McDonald called the court’s registry to find out the status of the application, only to learn that it had not arrived and was still pending. In a submission to the tribunal, McDonald admitted she “did not act in a professional manner.”
“We have encountered situations like this before, where the lawyer failed to start legal proceedings within the time limit or lodge a Caveat to safeguard their client’s interests. The key takeaway is that when hiring a lawyer, it’s crucial to consider the lawyer’s expertise. The best recommendation is to seek advice from a lawyer who specialises in that specific area of law.”
Attwood Marshall Lawyers Estate Litigation Senior Associate, Martin Mallon
Your potential claim for damages for losses caused by professional negligence
If you believe that you have not received the professional service expected from your lawyer and think there may be grounds for a negligence claim, it’s crucial to establish whether a duty of care existed.
A solicitor specialising in professional negligence can help you determine if such a duty was present, what the expected standard of that duty was, whether the solicitor breached it by providing incorrect or inadequate advice. Additionally, the solicitor will assess whether you provided full and frank instructions or if any information was withheld, which could impact the validity of your claim.
After establishing negligence, it’s a matter of calculating what your financial loss is as a result.
“There has to be a causal link between the actual negligence, that is the breach of the duty, and the actual loss that is suffered.”
Commercial Litigation Senior Associate, Jade Carlson
Attwood Marshall Lawyers – providing you advice you can depend on and helping you protect your best interests
As an all-services law firm, we are proud to have highly experienced teams in all areas of law, including estate litigation and commercial litigation.
If you are involved in a dispute of any nature, it is important to get advice from an experienced lawyer at the earliest opportunity to understand the next steps to take. Trusting an experienced lawyer often means they can help carry the burden and reduce conflicts as much as possible.
To discuss your specific matter or for more information, please contact our Litigation Department Manager Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or call 1800 621 071 any time.
Our team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
