Fine, reprimand for probate dawdle

A Caboolture principal will be publicly reprimanded and must pay a $2000 fine after being found to have engaged in unsatisfactory professional conduct.

In a Queensland Civil and Administrative Tribunal (QCAT) decision delivered yesterday, Justice Mellifont said the tribunal was satisfied two charges brought by the Legal Services Commissioner (LSC) – of failing to act with competence and diligence; and failing to act with competence, diligence and promptness – in relation to a will matter in 2020, were proved.

The practitioner admitted she failed to conduct probate searches and to lodge a probate caveat or probate revocation by deadline, which resulted in the grant of probate and the distribution of a deceased estate contrary to her client’s wishes.

She did not dispute the facts presented by the LSC, nor the sanctions sought.

In respect of the first charge, the LSC submitted the practitioner was in breach of rule 7.1 of the Australian Solicitors Conduct Rules, in circumstances where searches on the Queensland Supreme Court eCourts website and the Queensland Law Report Public Notices were free and easily accessible, irrespective of a client’s instructions.

“The LSC submit that a reasonably competent and diligent solicitor would undertake a search regarding the status of probate for a will and had (the practitioner) undertaken those searches, either at the initial meeting or afterwards, the urgency of taking a step to preserve the complainants’ position ought to have become apparent, given that (the probate applicant) had filed her application for probate more than a month prior to the initial meeting,” Justice Mellifont said.


“The LSC submit that a reasonably competent and diligent solicitor would have considered and advised their client on options to prevent probate from being granted, including the availability under rules 623-628 of the Uniform Civil Procedure Rules 1999 (Qld) to obtain a probate caveat.”

In respect of the second charge, the LSC submitted the agreed facts showed the practitioner was in breach of rule 4.1.2 of the Australian Solicitors Conduct Rules.

“The LSC submits that (the practitioner’s) inexplicable delay in first filing the (probate revocation) application, despite having instructions to do so, and then, second, following up the status of the application, departs from the standard of competence, diligence and promptness,” Justice Mellifont said.

“The LSC submits that this was especially so considering that the consequence of the delay was that (the deceased)’s estate was distributed with very little recourse for the complainants to challenge that.”

The practitioner was also ordered to pay the LSC’s court costs.

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