LAWYERS OR GRAVE ROBBERS?

There is an imaginary place in our minds where goblins live deep in the bowels of the earth and guard pots of gold. In these dark and gloomy places they work their evil. Whilst the dead spirits of our ancestors look on in helpless horror, powerlessly entombed by death. The pots of gold have been robbed by this heartless gang of barbarians and nobody can ever relieve them of their ill gotten treasure. They have built their fortress over the past thousand years and those that attempt to enter it will only find that they, like the dead, will be forced to contribute to the contraband.

When one enters the world of inheritance, and the legal profession become involved, it soon becomes apparent that this place is as real as the rain that falls from the sky, the sun that gives us life and the wind that brings us fresh air every day.

The goblins become the lawyers. The pots of gold are their fees and the fortress one finds has been built up by an elite group of unaccountable, untouchable humans, who justify their existence though the rule of privilege. They are what we term the judiciary (the keepers of the law).

Unlike most other professions the legal fraternity when acting as paid professional executors remain largely unaccountable and can only be judged by their peers. A consumer of their services is not provided with any quality standards or guidelines as to how lawyer/executors behave. If one has concerns about inefficient and costly procedures, they are impossible to pin down. They are a law unto themselves. In jurisdictions of criminal, business and financial disputes, it is possible to argue that there is a need for adversarialism. In the event of a parent's death and the passing on of the centuries of accumulated family wealth to the distressed and grieving relative's different skills are essential. Skills of conciliation, negotiation, mediation and selflessness upon which the beneficiaries of deceased estates can rely.

Currently the legal fraternity do not require specialised training in order to become professional, paid executors of their client's deceased estates. There are no standards on how they should treat the beneficiaries of the estate. The beneficiaries, unless they hold executorship are not considered by the law to be worthy as the lawyer/executor's clients. They have no recourse in regards to the procedures used by the lawyer/executor in the management of the estate. There is no disciplinary body available to evaluate whether or not the lawyer/executor is behaving in a combatative manner in order to benefit himself by racking up fees and charges on the estate. There are no formal venues available in which to mediate these types of concerns by the beneficiaries, apart from an application to the Supreme Court. This type of application is extremely expensive and substantially reduces the values of deceased estates as a result of the obscene legal fees.

The lawyer/executor is most likely the constructor of the will. A will becomes a contract between the deceased and the living. The executor takes on the role of the person who has died. A lawyer/executor who has written this contract with the input of the testator is not obliged to show the beneficiaries or a deceased estate the mechanisms of the will's construct even when a dispute arises between all of the beneficiaries and the lawyer/executor. The lawyer/executor is not accountable for their professional input into the construct of the contract. If an engineer constructed a bridge and it fell down he would be obliged to show in detail the mechanisms by which the bridge was constructed.

Under the current laws in Victoria a lawyer/executor is protected from being accountable for his workmanship by client/lawyer confidentiality. This assists some members of the legal profession to provide a poor quality of service to the community. A legal service which is not required to provide historical information as to the mechanisms used to create a will, is unable to be subjected to critical analysis. Critical analysis is the process by which the provision of quality is continually improved. In other words we learn by our mistakes, admit to them and put in standards to help us avoid making the same error again.

In the case of my own story the lawyer/executor refused to provide critical information. Information required to enable a proper analysis of my mothers will. Without this information it is impossible to assess the risks of a positive outcome in litigation against the lawyer.

This is a story about a highly combatative lawyer, who is the senior partner in a medium sized legal firm and the mechanisms that were used whilst dealing with a deceased estate. These mechanisms have wreaked havoc upon a grieving family. It is a story about how despite complaints being made about the lawyer's self interest, the bodies that have been created to protect normal every-day families, are powerless to do so. It is a story that identifies the need to change the jurisdiction of our ascendancy laws and to place them into the family law area where mediation, conciliation and negotiation are the foundation stones for positive resolution. I write this book as a warning to all those people who at one time in their lives contemplate the writing of their will. I offer the following advice. Do not under any circumstances in your will appoint a lawyer as the executor to your estate. If you do not have an option, give all of your possessions away prior to your death, but do not appoint a lawyer as executor, especially the lawyer who wrote the will. At least you will know you have made someone better off and they will be grateful of your generosity. The lawyer can squander the lot on exorbitant fees and leave your family shattered. There are no quality standards for lawyer/executors, they are a law unto themselves and controlled by an oligarchy of families that have emerged over the past two hundred years in our fair country; Australia.