The Victorian Law Reform Commission
Contact Diarmuid Tel 0401416305 email email@example.com
The Victorian law reform commission conducted a review on our Succession Laws in 2013.
I raised concerns with the commission early in 2016 regarding the fact that certain important recommendations regarding the role of lawyers who act as executors had not been implemented.
In August of 2013 The Victorian Law Reform Commission completed its Succession Law Reform Report. Contained within this report are the following recommendations.
Recommendation 59 The Legal Services Commissioner should be given jurisdiction to resolve a civil dispute between a legal practitioner and a beneficiary under a will or trust where the dispute relates to services provided by the legal practitioner to the estate in the capacity of executor or trustee. The procedures for resolving such a dispute would be the same as those which currently apply to civil disputes under Part 4.2 of the Legal Profession Act 2004 (Vic).
Recommendation 61 The Law Institute of Victoria or other relevant body should make: (a) uniform rules under the new uniform law that clarify the duties of legal practitioners in providing executorial services and charging for those services. (b) in support of these rules, guidelines for legal practitioner executors on meeting their fiduciary responsibilities.
Recommendation 62 The Victoria Law Foundation should publish a guide, or series of guides, on making wills and the role of the executor. The information should encompass the following topics and be made available in community languages: (a) questions and issues to consider when making a will, focusing on helping will-makers avoid problems commonly identified in wills made without legal advice and providing guidance about selecting an executor. (b) practical information for non-professional executors about what they need to do in that position, focusing on resources that can help them in meeting their responsibilities and identifying where they may obtain professional assistance (c) practical information for bereaved family and friends about what happens to the assets of a person after they die, focusing on what the executor needs to do before the estate can be distributed and the basis on which the estate might be charged for their services.
Recommendations 59 to 62 ensure that the legal profession when performing the role of executor fall into line with The Trade Practices Act of 1974 and current Australian Consumer Law. This is because many lawyers who are performing the role of executor are appointed at the time of the will writing process and the person who needs their will written is in the lawyers office and the word executor comes up. A word many of them have never heard let alone understand the importance of understanding its meaning in relation to its power particularly over a berieved family. The lawyer asks who will be the executor, the person writing the will may not want to involve anyone within their own family as it may cause complications that they do not want to deal with so they nominate the lawyer as the executor thinking they are nominating a lawyer, a trusted member of the legal proffession who is governed by the Legal Proffessional Act of 2004 in the state of Victoria. Little do they know that this proffession is not to be trusted and when acting as an executor the Legal proffessional act of 2004 does not cover lawyers who are executors because they are executors and not lawyers.
The Fiduciary Obligation of Government
In years gone by when government served our community through a fiduciary relationship, prior to the erosive jurisprudence of financial self-interest, the Standing Committee of Attorney Generals (SCAG) realised that Australia`s Inheritance laws required a much needed and well overdue overhaul. In 1993 SCAG approved the formation of a committee headed by the Queensland Law Reform Commission to review our Succession laws with the view to unification across the nation, as the separate state jurisdictions were considered inefficient, costly and inappropriate for our modern society.
Much to the dismay of the naive citizens of Australia the committee comprised of lawyers spent the next sixteen years comprising a five volume report. With the passing of time the jurisprudence of the fiduciary commitment by government and its agencies has been all but dissolved through the pursuit of the mighty dollar and with it the vested interests of the legal fraternity have again been upheld.
A simple exercise that could easily have been completed in twelve months was drawn out for a period of sixteen years without producing many changes to the damaging, costly and inefficient mechanisms currently operated by the various state run supreme courts within Australia.
The simplest and most obvious solution, although not entirely a cure; would have been to place succession law into the jurisdiction of the Federal Court of Australia.
Along the way there would need to be many changes made to the way legal practitioners are required to behave in this area of the law. (It is called a quality control system)
This legal orgy of succession law reform continued after the five volumes were released and continued into each separate state.
Within this clog mire of legal diatribe there were two recommendations that actually helped the families of deceased persons in preventing some of the plunder of the dead by our legal fraternity.
The first recommendation made by the national committee was that beneficiaries of a deceased estate that is in the majority of instances, the children of the parent and the close relatives and friends, have a statutory right to gain access to the legal file, provided that all of the legal fees have been paid. This right has been ignored and is still not law within Australia.
The second recommendation, made by the Victorian Law Reform Commission came in two parts: Part one required that lawyers who act as executors are now deemed to be lawyers and complaints against them by beneficiaries can be investigated by the Victorian Legal Services Commission, Part two required The Law Institute of Victoria to write rules for how lawyers who are acting as executors are required to behave. Whether or not lawyers who act as executors are now regarded as lawyers has become part of the “how long is a piece of string argument” which is a very old lawyers trick for making money. The rules have not been written.
What this means for the Australian public is that they are still unprotected from financial abuse by a lawyer acting as an executor of a deceased estate. Since there are no rules on how these people should behave they are capable of lying hiding, crucial information and creating fictitious disputes within families in order to satisfy their unquenchable thirst for money at the expense of family unity.
I have attached a detailed summary and request you as an elected member of parliament to fulfill your fiduciary obligations to the citizens who you represent and work to substantially diminish the size of the feast that is currently available to the legal industry at the emotional and financial expense of Australian families.
Do the organisations that are responsible for the jurisprudence of inheritance law within Australia, have a fiduciary responsibility, with prescriptive obligations, to implement the recommendations of their twenty year study into Succession Law Reform where the recommendations will prescribe the obligations of lawyers who act as executors by creating written standards?
These organisations are.
The Queensland law Reform Committee into the unifying of Australia`s Inheritance Laws. The representatives of that committee were made up of representatives of the various state Law Institutes. No public representation. This Committee was set up by the Standing Committee of Attorney Generals and reported to Council of Australian Governments.
As a result the Victorian Attorney General requested the Victorian Law Reform Commission to conduct a study into Succession Law Reform. The Committee was made up of lawyers. No public representation. The Attorney General in his terms of reference asked that the report would meet public expectations, As this area of law is fundamental to family development and ties into the Victorian Charter of Human Rights and the role the family has in our society.
Hence one can state that the whole legal industry is the Fiduciary and because it is to act in a prescriptive manner and not a prescriptive manner as the issue is specific to lawyers acting as executors and as fiduciaries of deceased estates the industry as a whole is caught out.
I have a question. In Australia we have a process for reforming our laws. A study is taken comprising of a committee of government appointed experts. The committee takes submissions from all stake holders and through a process of review research and communication a report is written which contains the recommendations for change. The area of law reviewed pertained to the accountability of the legal profession to the public, but more specifically when a lawyer acts as an executor of a deceased estate. The recommendations of a review into Victoria`s (Australia) inheritance laws requested that the Law Institute of Victoria write guidelines for lawyers who are executors because lawyers who are executors were recommended to be treated as lawyers by the legal regulator, as was not previously the case. These guidelines have not been written after two years. Every member of the last Australian Federal Government and every member of the Victorian state parliament has been notified of the failure. The question I ask is do those elected members along with the attorney generals and the law reform commission and the Law Institute of Victoria have a Fiduciary responsibility to ensure the recommendation is implemented?
How exactly can it be argued that the relationship between a member of parliament and constituents is fiduciary in nature?
The first indicator in the Frame test is that the fiduciary has scope for the exercise of discretion or power.
The second indicator of fiduciary duty is that the fiduciary is able to unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
Finally, the beneficiary – the constituents in this case – must be peculiarly vulnerable or at the mercy of the fiduciary holding the discretion or power.
The relationship between public officials and the public has been described by scholars as fiduciary in nature.
Are Australian public officials and the institutions they represent standing by the fiduciary relationship entrusted to them by the public?
The following entities all of whom have a relationship or are a part of government have been or are directly or indirectly been involved in the process of Ascendancy, Succession, Inheritance law reform since its inception in 1994.
These entities are.
- The standing committee of Attorney Generals.
- Council of Australian Governments.
- The uniform Ascendancy law reform Committee.
- Queensland Law reform Commission
- The Federal Attorney General
- The Victorian Attorney General
- The Victorian Law reform Commission
- The Law Institute of Victoria
- The Victorian Legal Services Commissioner
- Consumer Affairs Victoria
Certain recommendations pertaining to inheritance law reform emanating from the Queensland Law reform Commissions report into Unifying Australia`s Ascendancy Laws and the Victorian Law Reform Commission`s report into Succession law reform that if implemented would make lawyers who perform the role of executor (A fiduciary relationship) more accountable to the beneficiaries of deceased estates.
The above entities are aware of the recommendations and the fact that they have not been acted upon. These entities have not acted to ensure the recommendations will be implemented, it appears as if the inaction by these responsible entities to act is motivated by a desire to protect the financial interests of the legal profession by allowing their members who take on the role of an executor of a deceased estate to remain unaccountable to the beneficiaries of the estate. This inaction will continue to allow lawyers who are executors to lie to the beneficiaries about their own parent`s wishes, to orchestrate an internal family dispute from which a lawyer executor makes financial gain, as did Ian Bult of The law Firm Russell Kennedy without fear of discipline.
Under changes to the COAG council system in December 2013, the LCCSC replaced two previously separate councils: the Standing Council on Law and Justice (SCLJ) (formerly the Standing Committee of Attorneys-General (SCAG)) and the Standing Council on Police and Emergency Management (SCPEM).
This was the response from the Victorian Law Reform Commission.
Dear Mr Hannigan
Thank you for your email of 5 December 2015.
Under the Victorian Law Reform Commission Act 2000, the Commission’s functions are to examine, report on and make recommendations on law reform matters referred to it by the Attorney-General. The Commission may also make recommendations to the Attorney-General on legal issues of limited size but of general community concern under its Community Law Reform program.
Once the Commission has delivered a report to the Attorney-General, it is for the government to decide which of the Commission’s recommendations will be adopted. It is not the function of the Commission to monitor implementation of recommendations made in our reports.
As your inquiry relates to implementation, we cannot assist you further. In addition I note that the Commission has not done any work in relation to stalking or its definition.
Response from The Law Institute of Victoria.
These are links to the two guides provided buy the Law Institute of Victoria.
A guide for Executors and a Guide for Beneficiaries, Note the rules for Lawyers who are working as executors are not provided and have not been written. There is a very big difference between Guides for Executors and Rules for Lawyers who are acting as Executors.
This twisted use of words and ofiscation of responsibility is systemic within the legal fraternity of Australia. The fact that they did not write rules for the lawyers who work as executors and have only provided guides for executors is of concern. Why have they not written the rules, perhaps it is because if they do write the rules it will leave the door open for a massive class action against all of those lawyers who acted as executors and were actually robbing families graves!
Letter from The Victorian Law Reform Commission.
Response to The Victorian Law Reform Commission.
Diarmuid Hannigan 236 Smith Street Collingwood. Victoria 3066 03 94195044 charada@mira,net Sunday 9th of September 2012
To The Honourable P D Cummings Chair The Victorian Law Commission
Thank you for responding to my submission on Inheritance Law Reform dated 14th August 2012.
In your response you refer to a number of issues that I have raised, which you interpret to be outside of the terms of reference given by the Attorney General.
You state these issues to be:
- Extending to the regulation of legal practitioners generally
- The breadth of human rights legislation
- The operation of the adversarial system of law.
I have no doubt that you and your associates, who make up the Victorian Law Reform Commission, are fully aware of the significance of our Inheritance Laws upon the wider workings of our community and also the significant revenue base this work provides to the legal industry.
From my own assessment I would estimate that approximately 50,000 Victorians die every year leaving an asset base of approximately $500,000 each. This amounts to a grand sum of $25 billion dollars per year.
The legal costs of processing this asset base are in the order of $1.5 billion per year, which is about 20% of the Victorian legal industries revenue base. I would suggest that two thirds of that sum, is currently being wasted through an inefficient and unaccountable system that serves the revenue base of the legal profession, at the expense of Victorian families. The cumulative cost of this waste over a ten year period is about $20,000 to $40,000 per Victorian family. This amount of money is significant to most Victorian families who are not on high incomes, unlike the incomes that the legal fraternity are accustomed to. This amount of money, when used in a crisis, whilst bringing up a child in an average Victorian family, can be the difference between lifelong dysfunctionality or a happy and fruitful life.
Considering the long term significance law reform on Inheritance can have on Victorian families I would like to draw your attention to the “make war on 1034 campaign” that was developed in the 1970s and its similarities to the reform of our Inheritance Laws.
In the 1970s we had a motor car system that was killing and injuring a large number of Victorians. We as a community decided to address the problem on a whole of system basis.
- We redesigned the internal workings of the motor cars, by introducing seat belts, internal padding, and better brakes and tyres.
- We changed our approach to how we treated the driver of the car. Through education and legislation we reduced the number of testosterone alcohol fuelled drivers upon our roads.
- We gave our regulators more tools so as to combat the road toll. Country speed limits were reduced, .05 testing of drivers and tools to catch speeding drivers were invented.
These approaches have worked, they have made our roads safer and have significantly reduced the number of Victorians who have died or who have been injured upon our roads. The results have made Victoria a world leader in road safety development and have contributed to making Melbourne one of the world’s most liveable cities in the world. By reducing road trauma we improved the wellbeing of all Victorian Families and saved ourselves a lot of money that is redistributed back into our communities.
Now let me return to Inheritance law reform.
Currently we have a situation in Victoria where everybody at some time encounters inheritance law, simply because we all at some stage will die or we will know a person who is close to us who will die and somewhere along the line the majority of us will inherit something. Most of us will either be a beneficiary or in the end a testator, some of us will be nominated as executors. One can compare testators and beneficiaries to motor car passengers for the purpose of this analogy and nonprofessional executors as learner drivers of what can be a very expensive motor vehicle driving along a dangerous road. The real drivers of the motor car are the professionals whether they are lawyers, accountants of professional trustees.
The journey this vehicle takes us upon is the journey of life, as inheritance when confined to the family, which is where the bulk of it remains, will affect the trajectory of the family for eternity. As it impacts not only upon the family`s material wealth but also upon the state of internal health between family members.
The way the inheritance vehicle is driven, the road and the road laws that guide the vehicle and the regulators that control the way the vehicle is driven will all have a bearing upon the final outcome for the vast majority of Australian families.
The breadth of human rights legislation
Hence if the driver of the Inheritance Vehicle is a lawyer, which in a large number of cases it is and if not, a lawyer will most likely be a trainer of the driver (executor). We need a lawyer who respects and understands the essence of human rights and can encompass the charter of human rights so as it has a bearing upon the trajectory of the inheritance vehicle. Therefore it is critical that lawyers who are in private practice are bound by the Charter Of Human Rights and Responsibilities when working in the area of inheritance as they are the drivers of the inheritance vehicle.
Extending to the regulation of legal practitioners generally
The review of inheritance law and tinkering with the Inheritance Act can only redesign the vehicle by adding safeguards, but unless the driver is responsible and accountable and is aware that a regulator has the tools to ensure he or she follows the rules, any change to the design of the vehicle will have very little impact upon the journey. The regulator must be independent of the driver (legal profession) and must not have a vested interest in protecting the driver, if the driver does not follow the rules. Hence the independence of the regulator (Legal Services Commissioner) is important because it is only human nature for some of us to break the rules and an independent regulator is far more difficult to corrupt than a self-regulator.
The operation of the adversarial system of law.
The way the vehicle is driven will have a significant bearing upon the state and condition of the inheritance vehicle at the end of the journey. The perfect outcome is to have the vehicle begin its journey in good shape and condition and to have it finish its journey in a similar state and condition. If the inheritance vehicle is driven using the adversarial system as against the inquisitorial system it will take longer to reach its destination it will cost more and it will more often than not get to a wrong destination. This process inevitably can lead to a significant devaluation of the inheritance that is available to the beneficiaries, more often than not the children of Australian families.
Please refer to Annett Marfording`s report. Civil Litigation in New South Wales: marfording report
As I said at the beginning of the letter in response to your letter, it is your interpretation of the terms of reference that excludes three significant components of my submission which if excluded will not ensure that Victorian law operates justly, and in accordance with community expectations in relation to the way property is dealt with after a person dies.
As a Victorian who has experienced the failing of our Inheritance law system, I maintain I am in a special position and a qualified person who can comment upon the importance to develop a system that will give Victorians the guarantee that the Victorian law operates justly, and in accordance with community expectations in relation to the way property is dealt with after a person dies.
I would at this stage take the liberty of describing my own families experience of Victoria`s Inheritance system, so as you can appreciate how I have formed my perspective of our legal system and its relationship to family inheritance, as it gives good cause for the Commission to adapt its interpretation of the terms of reference, so as to create an inheritance vehicle for all Australian families that is keeping with their needs and expectations.
In my own families situation my mother nominated my sister and the members of Russell Kennedy (at the time of her death) to be executors of her estate. Prior to probate being granted my mother’s family met with Ian Bult of Russell Kennedy to discuss the terms of my mother’s will.
Most significantly: The meeting occurred on the 19th of August 2004 at the offices of Russell Kennedy. Mr Ian Bult attended that meeting along with Arthur Bolkas, Russell Kennedy`s wills and estates expert, my brother Tim Hannigan, my sister and her husband ******** both practising psychologists and my sister *********, the family nominated executor and her husband ********** a medical practitioner. The purpose of the meeting was to discuss how the estate could be distributed equally, among my mother’s four children who were all in agreement as to this being my mother’s final wish and that this would be in the long term interests of our families’.
At this point in time as far as I can ascertain ********* was the only nominated executor to the will, along with all of the members of Russell Kennedy at the time of my mother`s death, as probate had not yet been granted and the actual member from Russell Kennedy who was to take up the role of executor, had not yet been decided. Ian Bult happened to be at that meeting because he had been involved in writing my mother’s will and had been the lawyer from Russell Kennedy to who my mother communicated with.
The facts are, that a meeting at the offices of Russell Kennedy Solicitors, at which one family member executor attends and one lawyer (Ian Bult) who is representing another 20 lawyers, one of whom could become the other executor and a lawyer Arthur Bolkas, employed by the law firm Russell Kennedy attends. The lawyer Ian Bult states that he has a letter in his possession written by my mother that he says, states that he cannot divide the estate equally between her four children, as it would be contrary to her wishes. This statement was not true and was a misrepresentation of the contents of the letter (which only came to light after six years). The lawyer Arthur Bolkas who was charging the estate for his presence at that meeting had at least two clients, one being my sister and another 20 clients that is the members of Russell Kennedy at the time of my mother’s death, who are referred to in the will and the probate documents. That lawyer (Arthur Bolkas) had a duty of care to my sister *********, to tell her that his other client (a representative of Russell Kennedy Ian Bult), was misleading her during the meeting.
Instead, when my sister requested a copy of the letter, Mr Ian Bult said he had possession of: stating to him. “My mother would never have wanted her children to be treated in an unequal manner after her death.” Mr Arthur Bolkus advised Mr Bult that he could not let Grainne see that letter as it was a privileged document.
Mr Gleeson the current lawyer who is dealing with this matter at Russell Kennedy has been asked who was representing who at this meeting on 19th August 2004. He has stated that Arthur Bolkas was primarily representing Ian Bult and that it had been adverted to ********* prior to this meeting that she required independent legal advice. Upon checking with ********* it has been found that Paul Gleeson is not telling the truth. At no time prior to the meeting of 19th August 2004 had she been informed by any member of Russell Kennedy that she required independent legal advice at that meeting. This means that Arthur Bolkas was representing **********as the family nominated executor of the estate and the other 21 members of the law firm Russell Kennedy at the time of my mother’s death as stated in her final will.
The Attorney General Robert Clark in his letter to my brother (Tim Hannigan) dated 27th of June 2012 which states; “The Commissioner can also investigate serious misconduct that occurs outside of legal practice that would justify a finding that the practitioner is not a fit and proper person to engage in legal practice or that would be reasonably regarded as disgraceful or dishonourable to the profession.”
The point of me telling you this story is as follows.
- Mr Bult and the members of Russell Kennedy were able to hide the truth of my mother`s wishes for seven years, by claiming the letter whose contents Ian Bult misrepresented, was bound by legal client privilege.
- This misrepresentation of the contents of the letter by Ian Bult led to my sister, the family nominated executor and the person who I maintain was the only real executor prior to the granting of probate to have a disagreement with Ian Bult.
- Mr Bult then used the threat of exorbitant legal fees to sort out the problem. Stating it would cost the estate in excess of $200,000 in legal fees. He then wrote a letter to my sister strongly recommending that she not partake in probate. As a result of the bullying, intimidating and dishonest tactics used by Ian Bult without intervention by Arthur Bolkas the paid employee of Russell Kennedy along with the other 20 members of Russell Kennedy at the time of my mother`s death, my sister who also cares for a special needs child had a nervous breakdown and left the running of the estate to the members of Russell Kennedy.
- Ian Bult became the executor.
- I received 50% of my inheritance and Ian Bult invested the rest on the stock market where he lost about $80,000 during the G F C when accrued interest is taken into account.
- Russell Kennedy were able to amount $75,000 in legal fees against the estate. There were more fees for running a trust that they set up that was based upon a lie.
- The result of the actions by Russell Kennedy have destroyed the inter family relationships because of the uneven distribution of the inheritance between my mother’s children.
- Despite three complaints to the Legal Services Commissioner and a complaint to The Victorian Ombudsman which were well documented and have provided conclusive evidence that Ian Bult and Arthur Bolkus and the members of Russell Kennedy behaved in a disgraceful manner that involved:
- Working for their own financial gain
- Abusing the Inheritance, family and human rights of my mother’s family
- Mismanaging the estate whilst in control of it.
There has never been a proper investigation carried out by the regulator about this matter.
The Legal Services Commissioner has continually stated that Mr Ian Bult was acting as an executor and not a lawyer and that the matters that I am concerned about are a matter for the Supreme Court. I find this to be very surprising particularly when you become aware of a case of professional misconduct that is currently being bought against a Mr Harold James Johnson by Mr Michael McGarvie – The Legal Services Commissioner. VCAT Ref J124/2011
Mr Johnson is charged with writing intemperate language in three affidavits to the courts whilst he was acting as a self-represented non litigant in a family law matter. In this case the legal services commissioner is prepared to go all out against Mr Johnson on the basis that even though he was not acting as a lawyer in his self-representing role he had communicated in a way that lawyers are not permitted to do and in so doing had behaved in a disgraceful manner and should be barred from practicing law for five years. None of what Mr Johnson has stated in his affidavit material has been disproved.
And yet we have about 300 complaints arriving at the Legal Services Commissioners desk many involving lawyer who are acting as executors whom the legal services commissioner does not see fit to investigate and refers the complaint back to the complainant often suggesting that they take the matter to the supreme court so as they can incur more legal fees and charges.
- We have at least one case that I know of where a lawyer who may or may not have been an executor who clearly behaved in a dishonest manner to gain control of my mother’s deceased estate whose behaviour is disgraceful, is not investigated by the Legal Services Commissioner. Hence the issue pertaining to extending the regulation of legal practitioners generally.
- Despite frank and forthright communication to Mr Paul Gleeson and all of the members of Russell Kennedy who are still at Russell Kennedy my mother’s family have been refused permission to examine the estate file. A file that has been fully paid for by my mother`s estate and which I maintain is the property of my mother`s family.
I can assure you that none of the above indicates that Victorian law operates justly, and in accordance with community expectations in relation to the way property is dealt with after a person dies and all of which indicates that to shift the Victorian law to a position than ensures that Victorian law operates justly, and in accordance with community expectations in relation to the way property is dealt with after a person dies will require the law reform commission to consider and incorporate
- Extending to the regulation of legal practitioners generally
- The breadth of human rights legislation
- The operation of the adversarial system of law.
in to its interpretation of the terms of reference so as to achieve the desired outcome. An outcome that would reduce the cost of running the Inheritance transfer system by one billion dollars per year which would then be redistributed back to Victorian families. As with the flow on benefits Victoria has gained by its war upon 1034 we can use the same method to impart a positive contribution when we reform our Inheritance Laws.
I welcome commission`s practice of publishing submissions and have no objections to you publishing my submission. I can understand the need to remove any names from submissions as to not do so would create an unworkable environment. I am saddened to hear you will not be publishing my book (Lawyers or Grave Robbers?) on your web site, but I did not send you a copy of Lawyers or Grave Robbers? so as it would appear on your web site, however I did send you a copy of Lawyers or Grave Robbers? for a reason, as there is information contained within the book that will assist the commission and a documented story that is true. The perspective of a person who is outside of the legal profession will shed a different light upon a subject that although not in the forefront of day to day events at this point in time it will have a beneficial impact upon the workings of most of the people who live in Victoria.
I trust that you will take my comments on board and I live in anticipation of seeing fairer and more equitable Inheritance Laws and a system that administers them emanating from the Victorian Law Reform Commission`s review of these laws.
If I can be of any further assistance please contact me.
CC The Attorney General Robert Clark, Richard Wynne Shadow Minister for a fairer Victoria
Dr Ian Hardingham
Succession Law Reform Terms Of Reference.
Review of the final report on Succession law reform by the Victorian Law Reform Commission.
Letter to Richard Wynne MP.
The review of our succession laws report has now been completed by a panel comprised wholly and solely of lawyers, not one person to represent families or our community with so much wealth at stake. I wonder why? It should be noted that one of the members of this panel was a past president of The Law Institute of Victoria, (The lawyers union) and another member Richard Boaden, barrister from “Jarndyce Chambers.” The significance is referred to a bit later.
The terms of reference clearly state that the objective of the review is to ensure the law operates justly and fairly and in accordance with community expectations in relation to the way property is dealt with after a person dies.
Our current laws have provided the legal profession with an enormous feeding ground that extracts money from vulnerable families and benefits the pockets of lawyers. In Victoria approximately 40,000 people die each year leaving an average estate worth at least $500,000; an amount of $20 billion per annum. The legal industry is entrusted to transfer this wealth from the dead to the living. The current process is inefficient, expensive, unaccountable, and full of deceptive procedures that allow lawyers to hide important information from family members. It is a system that has evolved through time that has been developed by the legal industry so as to obtain maximum benefit for themselves.
This review put out by The Victorian Law Reform Commission`s report on our Succession law Reform has the gall to state:
Views and conclusions
10.20 At the general level dealt with in this chapter, the Commission considers that costs rules in their application to succession proceedings are working satisfactorily and do not require legislative amendment. The Commission has received no submission expressing a contrary view.
I am not sure how the Law Reform Commission interpreted my submission
Where I have suggested that the review should realise the success of the campaign on make war on 1034 and interpret the process as the lawyer executor being the driver of the inheritance vehicle upon whom the deceased family rely upon to drive the inheritance vehicle safely and without damaging it both financially and emotionally. I would assume this means making sure the process did not erode the value of an estate which means looking at the cost of the whole system.
At a ten per cent processing cost by the legal profession this amounts to an annual contribution of at least $2 billion per annum in revenue to the legal profession. There are 16,000 lawyers in Victoria about half would be employed in areas that would not share in this feast. If we say 8000 lawyers share in $2 billion that calculates out to $125,000 per lawyer per year, a significant component of the legal industry.
The new laws should address this disgusting situation but unfortunately the recommendations from this report do nothing of the sort. To appease the worst case and most obvious aspects of these unfair laws the committee made up of lawyers has recommended that lawyers who are acting as executors should be incorporated into the legal professional act which would allow the Legal Services Commissioner to investigate complaints by beneficiaries against their behaviour, behaviour mind you that can involve theft and fraud. We should all now feel safe as The Legal Services Commissioner receives 7000 telephone enquires about bad lawyers every year. They are able to discourage 5000 of those complaints over the phone and only receive 2200 written complaints. Of the written complaints they find about 2000 complaints have no merit and only investigate or prosecute 200 complaints. In other words we are going to use a broken system to fix a very broken system. By the way the legal services Commissioner only deals with complaints up to an amount of $25,000 which can be an insignificant sum when dealing with a deceased estate.
This recommendation is a furphy as lawyers who are executors should have always been bound by the Legal Professional Act of 2004 because if they were not bound they would be contravening the Trade Practices Act of 1974 by advertising their services to customers as lawyers when knowing full well that when acting as executors they would not be bound or regulated by the lawyers rules, in other word’s misleading and deceptive advertising of their services to naive consumers.
7.10 It is therefore concerning that some legal practitioner executors have taken unfair advantage of their position by:
- charging the estate without the informed consent of the will-maker or beneficiaries
- claiming excessive amounts
- receiving both commission and professional fees for the same services.3
Should also be inserted.
By lying to the children of the deceased about their parents’ wishes and hiding relevant documents so as to be able to increase their fees and charges against the estate.
7.11 In this chapter, the Commission considers a number of measures to reduce the incidence of unethical and unlawful charging practices by legal practitioner executors. Its recommendations aim to improve compliance by legal practitioner executors with their ethical and legal obligations, and assist beneficiaries in understanding those obligations and enforcing them when necessary. They also recognise that some of the problems identified are not confined to the legal profession and need broader solutions.
There is no mention of criminal sanctions against this foul behaviour, there needs to be. It is hard for one lot of lawyers who protect the other lot to cll them criminals.
7.12 Decisions about whether specific rules for legal practitioners are necessary, and the form they should take if they are, need to be made in the context of the existing regulatory framework. The regulatory framework within which legal practitioner executors currently operate is described briefly in the next section. The discussion then turns to the rules that should apply.4
This is one of those legal gobbled de gook sentences that says we think that there is a need for some specific rules but we are not saying there is a need for them because we may be sued for our past negligence on the issue. It also says that if we do actually create some rules then they will be formed within the existing legal frame work which as we know already protects crooked lawyers.
The review has also recommended that the Law Institute of Victoria write the guidelines for these lawyers who are executors so as they can be incorporated into the legal professional act of 2004, a bit like asking Dracula to write the rules on how to manage the blood bank. At least they have admitted to their negligence.
There is nothing in this report about quality standards, making the process more efficient or incorporating the philosophy of human rights into the law. Family development and culture do not even rate a mention in this review, a review of our inheritance laws that will determine the way this nation develops. This review is indicative of a legal system that allows unaccountable lawyers to write the laws, and interpret and administer the laws for their benefit instead of for the development of our nation.
There is nothing in this review that mentions executors who are lawyer’s responsibilities to share important information with beneficiaries (family members) as is mentioned in the national review of unifying Australia`s Inheritance laws. Transparent communication between lawyer/ executor and family is an essential component for avoiding disagreement and reduces legal costs to the estate. This very important point is however mentioned in Volume 1 QLRF Report on the unification of our ascendancy laws. Ref Access to information — beneficiaries 11-11 to 18
There is nothing about capping the legal costs on a deceased estate. After all is not rocket science.
The Victorian Law Reform Commission`s report on our Succession law Reform suggests that the county court be responsible for administering small estates with a value of less than $500,000 leaving the major proportion by value of deceased estates to the administration by the far more expensive Supreme Court, Why has the value of a small estate been determined at this amount instead of say $2 million?
61 The Law Institute of Victoria or other relevant body should make:
(a) uniform rules under the new uniform law that clarify the duties of legal practitioners in providing executorial services and charging for those services
(b) in support of these rules, guidelines for legal practitioner executors on meeting their fiduciary responsibilities.
The Law Institute of Victoria should have done this years ago getting them to do it now is akin to getting Dracula to write the rules for running the blood bank. We only need one rule which already exists but the regulators do not enforce it and that is that they comply with Australian Consumer Law.
The law reform Commission in its review of Succession laws could quite simply have stated that all lawyers who act as executors are obligated to Australian Consumer Law and that beneficiaries of deceased estates are consumers of their services as should have always been the case after the Trade Practices Act of 1974 was enacted, instead of perverting the course of justice by running around the Legal Professional Act of 2004 which is just another smoke screen by the profession to avert their responsibilities to Australian Consumers of their services.
The report has stated the following with regards to the consumer rights of beneficiaries. Personally I would have expected such a well-resourced committee to have been able to make a determination.
7.32 Although the Legal Profession Act imposes obligations on legal practitioners when providing legal services, and avenues for resolving disputes and complaints, the Australian Consumer Law also applies to the legal services they provide.26 However, it is not clear that a beneficiary would have standing to make a complaint about legal costs charged to the estate, as the estate—not the beneficiaries—is liable to pay. In any event, it is likely that any conduct that contravenes the customer service guarantees under the Australian Consumer Law will be behaviour for which the legal practitioner can be disciplined under the Legal Profession Act as well.
I would consider it an act of neglect by the Commission not to have discussed or recommended how criminal provisions of the two acts that can apply to some lawyers who are executors in Victoria should be allocated the necessary resources for any investigations that may be required under the following criminal codes.
CRIMES ACT 1958 – SECT 86
Suppression etc. of documents
- 86(1)amended by Nos 9576 s. 11(1), 49/1991 s. 119(1)
(Sch. 2 item 33), 48/1997 s. 60(1)(Sch. 1item 64).
(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
- 86(2)amended by Nos 9576 s. 11(1), 49/1991 s. 119(1)
(Sch. 2 item 46), 48/1997
s. 60(1)(Sch. 1item 64).
(2) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception procures the execution of avaluable security is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) and this subsection shall apply in relation to the making, acceptance, indorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and in relation to the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security, as if that were the execution of a valuable security.
(3) For purposes of this section “deception” has the same meaning as in section 81, and “valuable security” means any document creating, transferring, surrendering or releasing any right to, in or over property, or authorizing the payment of money or delivery of any property, or evidencing the creation, transfer, surrender or release of any such right, or the payment of money or delivery of any property, or the satisfaction of any obligation.
Provisions in administration legislation
28.50 Unlike the other Australian jurisdictions, Victoria has an additional provision in its administration legislation under which ‘both criminal and civil penalties are prescribed’.337 The provision makes concealment of a will a criminal offence, but also creates a statutory cause of action by providing that a person who fraudulently deals with a will is liable in damages to a person who sustains any loss as a result of the concealment. Section 66 of the Administration and Probate Act 1958 (Vic) provides:338
66 Concealment of will a misdemeanour
(1) Every person who retains or conceals or endeavours to retain or conceal any will or codicil or aids or abets any person in such retention or concealment with intent to defraud any person interested under such will or codicil, shall be guilty of an indictable offence; and shall be liable to a fine of not more than 100 penalty units or to imprisonment for a term of not more than two years or to both fine and imprisonment; and shall also be liable to a proceeding for damages at the suit of the persons defrauded or those claiming under them for any loss sustained by them or any of them in consequence of such retention or concealment.
(2) No prosecution for any such offence shall be commenced without the sanction of a law officer; and no such sanction shall be given unless an officer directs has been given to the person for whose prosecution such sanction is sought. (emphasis added)
I can empathise with the members of the commission and realise it is not intentional as they are only familiar with the workings of a medieval structure that they believe in. Unfortunately because all members of the advisory committee were sourced from people with a legal background they believe that all lawyers are honest and therefore there is no need to create a system that catches and punishes the thieves’ amongst the profession. This leads to the one bad apple syndrome. Why were there not a strong contingent of representatives from the wider community placed on this very important committee. Unfortunately you cannot build a strong and sustainable product using medieval systems. It does not work. It appears as if the Law Reform Commission believes the system is working well according to community expectations and with a few tweaks and some minor modifications the community’s expectations will have been met and we can all get back on the horse and cart.
The reason this has occurred is because our legal system has grown from a convict settlement a settlement that was stripped of culture and had no recognition of family as the core and fundamental component of our society. Until the law reform process is changed and culture and families are given the positions of influence and power when law is constructed our nation will remain a prison that is controlled by greedy self-serving and unaccountable lawyers whose sole purpose in life is to feather their own nests.
At the beginning of this letter I mentioned two points about two members of the advisory committee. The first was that one of the members was an ex-president of the Law Institute of Victoria, The reason is obvious the legal profession needed one of their own to report back to its central committee to ensure that their income stream is well protected from any recommendations of law reform
The second related to Richard Boaden, barrister from “Jarndyce Chambers.”
Jarndyce vs Jardynce was the fictional name used by Dickens in Bleak House and is a description of the longest and most expensive wills case that ran for 120 years and eroded the whole estate in legal fees.
For any person who has been a victim of legal abuse in a deceased estate this is a pointer to the hubristic culture of the Victorian Legal Profession both by calling a barristers chambers by this name and worse still appointing a barrister from those chambers to sit on a review committee on succession law.
If as a responsible member of our community you do not believe in the she`l be right attitude (trust us) projected by our legal profession, stand up against this travesty and ensure that these recommendations by the review panel of Victoria’s Succession laws are seen for what they are, “She is wrong” and help influence the debate so as we do end up with succession laws that are representative of our community’s needs, expectations and culture, instead of meeting the needs of the legal profession, a profession who have become far too powerful and have proved time and again that they cannot be trusted with the shaping of our nation to benefit our culture and our families.
I have included links to my submissions to the Succession Law Reform Committee for your reference. It is also connected to the initial submission link. This is on the law reform commission web site link for submissions.
I trust you will see through the veneer of trust projected by the legal profession and use your influence to help protect the interests of Australian families.
We have a once in a hundred year opportunity to reshape our legal profession through Succession law reform and make them provide our community with a low cost efficient and accurate system that has a culture of collaboration, truth, transparency and trust incorporated into its structure, where culture and the input of community and family are very much participants in shaping our laws and where the legal system becomes accountable to Australian Consumers.
I have also included segments of the review on succession pertaining to the behaviour of lawyers who act as executors with my comments in italics for your benefit. I trust this information is helpful and look forward to your participation.