AUSTRALIA: Lawyer Fined Over 100-year-old's Will

PERTH (Western Australia POST), September 1, 2006: A Nedlands solicitor has been found guilty of unsatisfactory conduct after he wrote himself and his wife into an elderly woman's will for $50,000. The woman, now aged 100, signed the amended will, leaving the money to the solicitor and his wife. Albert Ernest (Nobby) Clark was fined $7000 and ordered to pay $29,400 costs after a hearing in the State Administrative Tribunal. The tribunal found that Mr Clark did not ensure the woman, who also lives in Nedlands, received independent legal advice. Mr Clark, a former Nedlands councillor aged in his 70s, defended the action by the Legal Practition-ers' Complaints Committee. In his defence he said he had satisfied himself that the woman understood what she was doing. He said the elderly woman was insistent that Mr Clark and his wife accept an $80,000 bequest, but they refused. After she continued to insist, they said they would accept $50,000. The SAT decision said Mr Clark's unwillingness to accept that this was a "substantial sum" was unrealistic. His client signed the codicil to her will in a Wembley doctor's surgery after the doctor conducted a mini-test to satisfy herself that the elderly woman understood what she was signing. The doctor and her receptionist witnessed the amendment, which gave Mr Clark and his wife priority over some other beneficiaries. But Justice Michael Barker and SAT members Neil McKerracher QC ruled that Mr Clark's opinion of his client's capacity to understand her will was not relevant. In any case, Mr Clark was well aware of a clear majority of contrary opinions by other doctors and psychiatrists. It had been alleged that the woman was vulnerable, but the SAT said it was unnecessary for it to make a finding on her vulnerability and testamentary capacity. The SAT said that Mr Clark accepted he was clearly in a position of a conflict of interest. Mr Clark had arranged for another solicitor to advise the elderly woman once she had decided to make the bequest, but this solicitor, Mr Sutherland, had withdrawn. Mr Clark had shown he was aware of the need for the woman to be fully informed by independent legal advice by instructing Mr Sutherland. Mr Sutherland withdrew his services when Mr Clark advised him that the Public Trustee had lodged a complaint against Mr Clark with the Complaints Committee. At the time Mr Sutherland withdrew, he had not advised the elderly woman of all aspects of her rights. "There was no occasion on which he (Mr Clark) knew any advice was given," the SAT decision said. The SAT said that Mr Sutherland had acted properly. Once Mr Clark had realised Mr Sutherland had not advised the woman, he should not simply have pursued the signing of the codicil himself, the SAT members said. It was his responsibility to ensure that this client was fully independently advised. Mr Clark and his wife were frequent visitors to the woman's Nedlands home. She had said she wanted to make gifts to people who had helped her in her later years, the SAT was told. She was described as remarkably cogent for her age, but there was evidence before the SAT that she had made conflicting statements to various people about her relationship with Mr Clark and his wife. The woman had contacted Mr Clark when she was an involuntary patient in Selby Lodge and he helped her to return home. Copyright © 1999 - 2006 Post Newspapers Pty Ltd.