The recent case of Kavanagh v Londy [2024] QCA 140 highlights the value solicitors bring to estate planning – and the importance of good file notes.
In what will hopefully be the final chapter in a long-running estate matter, the diligence and competence of the solicitor drafting the will prevented an injustice – and not for the first time.
The first act in this almost Shakespearean saga took place in 2017 and was covered in Proctor here, when a disgruntled relative, Mr Kavanagh challenged a will.
In that case, the long-term involvement of the solicitor – and their scrupulous discharge of the duty to the client – saved the day.
The meticulous file notes and attention to detail when drafting a will for an elderly lady cutting out an overbearing relative meant that the challenge failed; the court found that he had bullied his way into the earlier wills, and the intervention of the solicitor remedied that.
That was not the end of the matter, however; Mr Kavanagh sought to enforce an agreement he had brokered with the testatrix, to the effect that he was gifted (in a roundabout way) one property and promised that another would be left to him in the will.
In return, he would not sue for historical wrongs he believed had been perpetrated against his family, by the testatrix’s family.
While the first property was gifted, he was not left the second one in the will; subsequently, Mr Kavanagh brought proceedings in the District Court.
The District Court dismissed Mr Kavanagh’s claim, finding that:
- The agreement was not supported by sufficient consideration. Mr Kavanagh’s forbearance in suing for historical wrongs was not enough, and indeed amounted to little more than not pursuing an alleged moral obligation;
- Mr Kavanagh had not suffered detriment in relying on the agreement;
- The agreement had been the result of undue influence, the pressure from Mr Kavanagh overbearing the testatrix’s will, and thus the agreement was voidable;
- The agreement was also voidable due to unconscionable conduct on the part of Mr Kavanagh, in that he took advantage of the age and frailty of the testatrix, and the fact that her only close family, her siblings, had passed away.
In coming to this conclusion, the court was faced with competing case theories – either the testatrix was bullied and coerced into the agreement; or that the agreement was entered into to right alleged wrongdoings of the past, that had been passed down to Mr Kavanagh as family folklore. Those tales proved no match for the diligence of the solicitor and the comprehensive notes he took while advising the testatrix.
The affidavit of the testatrix, prepared by the solicitor (Mr Pender), was pivotal in the court determining the testatrix’s state of mind and the circumstances surrounding the agreement (and its termination).
It revealed that the testatrix believed that she had been coerced into signing the agreement, by Mr Kavanagh’s harassment and manipulation, and that she had not received legal advice on the implications of the agreement.
Mr Pender’s evidence also included a view that Mr Kavanagh was ‘determined’ and ‘overbearing’, observations which the trial judge accepted as being consistent with her honour’s own observations.
The trial judge went on to note that she would not rely on anything Mr Kavanagh said unless there was independent documentary proof. That conclusion was buttressed by Mr Pender’s evidence and meticulous file notes, as well as the comprehensive contemporaneous notes he made.
Mr Kavanagh appealed to the Queensland Court of Appeal, arguing that:
- His evidence should not have been rejected;
- Certain inferences were not open on the evidence;
- The testatrix’s statements should not have been given much probative value;
- There was sufficient consideration;
- There was no undue influence;
- There was no unconscionable conduct;
- By carrying out the agreement, the Testatrix was estopped from rescinding or voiding it.
The Court of Appeal rejected these arguments and the appeal was dismissed with costs. The Court of Appeal, like the judge at first instance, placed reliance on the affidavit and evidence given by Mr Pender. In addition, the fact that the Testatrix had used Mr Pender for her estate planning in general, and not just the drafting of a will, allowed him to give a fuller picture of the matter than might otherwise be the case.
The lessons from this case are clear – taking comprehensive, contemporaneous file notes of not only the client’s instructions but her clear and cogent reasons of why she was changing her will (doing more than just drafting a will), can prevent injustice and ensure a will-maker’s wishes are realised.
Further, clients should be made aware of cautionary tales such as this, especially if they are thinking of using will kits or other do-it-yourself-type options.
Share this article