LEGAL PROFESSION COMPLAINTS COMMITTEE and WELLS
[2014] WASAT 112
•2 SEPTEMBER 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and WELLS [2014] WASAT 112
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS F CHILD (MEMBER)
MR M HARFORD (SENIOR SESSIONAL MEMBER)
HEARD: 19 AND 20 MAY 2014
DELIVERED : 2 SEPTEMBER 2014
FILE NO/S: VR 176 of 2013
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
GAVIN GEORGE WELLS
Respondent
Catchwords:
Reckless conduct Preparation and execution of will and enduring power of attorney Capacity Proffered medical advice
Legislation:
Legal Profession Act 2008 (WA), s 438(1)
Result:
Practitioner guilty of unprofessional conduct
Summary of Tribunal's decision:
The practitioner received instructions from an interested beneficiary of a will and donee of an enduring power of attorney to attend at a hospice. When the practitioner attended the hospice the patient's lack of capacity was obvious and he had doubts about the patient's capacity. The practitioner declined an offer from a doctor to answer questions about the patient's condition. He purported to take instructions from, and then supervise, the witnessing of the will and enduring power of attorney despite his doubts as to capacity.
The practitioner disregarded the basic obligations of a practitioner where there is a doubt as to a patient's capacity.
The practitioner was found to have engaged in professional misconduct.
Category: B
Representation:
Counsel:
Applicant: Mr AJ Musikanth and Ms P Le Miere
Respondent: In Person
Solicitors:
Applicant: Law Complaints Officer
Respondent: N/A
Case(s) referred to in decision(s):
Banks v Goodfellow (1870) LR S QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336
Dellios v Dellios [2012] NSWSC 868
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Kyle v Legal Practitioners Complaints Committee (1999) 21 WASCA 115; (1999) 21 WAR 56
Medical Board of Western Australia and Bham [2006] WASAT 190
Medical Board of Western Australia and Wright [2010] WASAT 48
Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87
Szozda v Szozda [2010] NSWSC 804
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
David Coe died at the St John of God Murdoch Hospice (the Hospice) on 5 June 2013, aged 76.
Mr Coe was admitted to the Hospice from Rockingham Hospital on 23 May 2013. He was terminally ill and required palliative care. Prior to his admission to the Hospice, Mr Coe had been diagnosed at Fremantle Hospital with liver cancer and a stroke. The stroke caused him to suffer from expressive dysphasia (difficulty in expressing himself) and mild receptive dysphasia (difficulty in understanding what was said to him).
On 25 May 2013, Mr Gavin George Wells (Mr Wells), a legal practitioner, attended at the Hospice with Mr Wayne McKenzie and his mother, Mrs Florence McKenzie. While at the hospice, Mr Wells arranged for the execution of a 'will' (the will) and an 'enduring power of attorney' (the EPA) by Mr Coe. He witnessed the will with Mrs McKenzie. The sole beneficiary of the will and the donee of the enduring power of attorney was Mr McKenzie.
Mr Wells effectively took his instructions for the preparation of the will and the EPA from Mr McKenzie and Mrs McKenzie on the evening of 24 May 2013.
In these circumstances, the Legal Profession Complaints Committee (the Committee or LPCC) alleges that Mr Wells engaged in professional misconduct on three grounds.
The Committee's grounds
The three grounds as set out by the Committee in its application are:
GROUND 1
That the practitioner, GAVIN GEORGE WELLS (the practitioner), on or about 25 May 2013, engaged in professional misconduct, within the meaning of Sections 403 and 438 of the Legal Profession Act 2008 (WA) (the Act), when he purported to take instructions for and purported to prepare a Will (Will) and an Enduring Power of Attorney (EPA) for Mr David Lionel Coe (Mr Coe), with reckless disregard as to whether Mr Coe, a terminally ill patient:
(a)had capacity to make a will or an enduring power of attorney; and/or
(b)was able to provide any, or any proper or adequate, instructions to the practitioner to make a will or an enduring power of attorney; and/or
(c)was able to provide any, or any proper or adequate, instructions to the practitioner, in the manner in which the practitioner purported to obtain instructions from him, to make a will or grant an enduring power of attorney
in circumstances where the practitioner knew or ought to have known that there was a real doubt as to Mr Coe's capacity to provide instructions.
GROUND 2
That the practitioner, on or about 25 May 2013, engaged in professional misconduct, within the meaning of Sections 403 and 438 of the Act, by arranging the execution of, and witnessing, the Will and EPA, in reckless disregard as to whether Mr Coe:
(a)had capacity to make the Will and the EPA:
(b)had been able to provide any, or any proper or adequate, instructions to the practitioner, in the manner in which the practitioner purported to obtain instructions from him, to make the Will and the EPA;
(c)had understood and approved the contents of the Will and the EPA:
(d)had independently signed the Will and the EPA
in circumstances where the practitioner knew or ought to have known that there was a real doubt as to Mr Coe's capacity to make the Will or grant the EPA.
GROUND 3
That the practitioner, on or about 25 May 2013, engaged in professional misconduct, within the meaning of Sections 403 and 438 of the Act, by engaging in conduct that fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, and which involved a substantial failure to reach or maintain a reasonable standard of competence and diligence, when he purported to take instructions for, prepared, arranged execution of, and witnessed, the Will and EPA for Mr Coe in that:
(a)prior to taking instructions for the will, preparing, arranging the execution of, and witnessing, the Will and the EPA, the practitioner did not obtain the opinion of Mr Coe's treating medical practitioner, or any other medical practitioner, as to whether, having regard to Mr Coe's medical condition, physical and mental state, and the medication he was taking, Mr Coe could provide any, or any adequate or proper, instructions to the practitioner for a will or an enduring power of attorney for Mr Coe, and if so, as to the manner in which Mr Coe could provide instructions to the practitioner for the Will and the EPA;
(b)the practitioner failed to obtain instructions from Mr Coe as to the nature and extent of Mr Coe's property, and failed to satisfy himself that Mr Coe understood the nature and extent of his property;
(c)the practitioner failed to obtain instructions from Mr Coe as to whether there were any family members or other persons who might be expected to be remembered in the Will and whether there were any persons who might have a claim in respect of Mr Coe's estate;
(d)the practitioner failed to read the Will to Mr Coe before Mr Coe purported to sign it;
(e)the practitioner purported to take instructions for the Will and the EPA whilst Wayne McKenzie (Mr McKenzie), who was a friend of Mr Coe, who was named in the Will as the sole executor and the sole beneficiary of Mr Coe's estate, and who was named in the EPA as the sole donee of the power, and his mother, Nina McKenzie (Mrs McKenzie), who, together with Mr McKenzie, had provided the practitioner with information as to what was to be included in the Will and the EPA, were present;
(f)the practitioner did not take any, or any adequate or proper, steps to satisfy himself that, in signing the Will, Mr Coe understood the contents of the Will and the consequences of signing the Will;
(g)the practitioner did not take any, or any adequate or proper, steps to satisfy himself that, in signing the EPA, Mr Coe understood the contents of the EPA and the consequences of signing the EPA;
(h)the practitioner failed to give any advice to Mr Coe as to the terms and effect of the EPA, the consequences of signing the EPA, and the options available for restricting the exercise of powers in the EPA;
(i)the practitioner failed to read the EPA to Mr Coe before Mr Coe purported to sign it;
(j)the practitioner failed to have any or due regard for Mr Coe's medical condition, physical and mental state, and the medication he was taking, and failed to ensure that, because of Mr Coe's medical condition, physical and mental state, and the medication he was taking, an independent party acted as a witness to Mr Coe purportedly signing the Will and the EPA;
(k)the practitioner failed to make any file note of the circumstances surrounding his attendance on Mr Coe, when he knew or ought to have known that an issue may arise as to Mr Coe's capacity and/or ability to provide instructions to prepare the Will and the EPA.
Unprofessional conduct
Unprofessional conduct is conduct which, to a substantial degree, falls short of the standards of professional conduct observed or approved by members of the profession of good repute and competence: Kyle v Legal Practitioners Complaints Committee (1999) 21 WASCA 115; (1999) 21 WAR 56 at [71] [72].
Onus and standard
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw(1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
A solicitor's obligations when taking instructions for and supervising the execution of a will
When taking instructions for a will and supervising the execution of a will, a solicitor has, at least, the following obligations:
a)to determine whether the testator has testamentary capacity;
b)if capacity is in doubt, to ask non-leading questions designed to properly probe that capacity;
c)if capacity is in doubt, to seek medical advice;
d)to be alert to possible conflicts of interest where the person instigating the will is a beneficiary, or associated with a beneficiary; and
e)to take proper notes.
Disputes about wills produce, or lay bare, disharmony in families. They also waste money, often that of the estate.
The test of whether a testator has the necessary capacity to make a will is set out by Santow J in Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87 (Pates):
The classic test from the nineteenth century of whether or not a person possesses such testamentary capacity is found in the judgment of Cockburn CJ in the leading case of Banks v Goodfellow (1870) LR S QB 549 at 565:
It is essential to the exercise of such a [testamentary] power that a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections pervert his sense of right or pervert the exercise of his natural faculties that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.
A solicitor who is taking instructions from an obviously ill testator:
… where capacity is potentially in doubt … [needs] to take particular care to gain reasonable assurance as to the testamentary capacity of the testator.
In general, a beneficiary and a donee should be excluded from the room while instructions are being taken or a will witnessed, at least where there is a doubt as to capacity:
… Any suggestion that someone, potentially interested, has instigated the will … should particularly place the solicitor concerned on the alert. At the least, a solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity[.] (Pates) (see also Dellios v Dellios [2012] NSWSC 868 (Dellios) at [44] [45]).
A practitioner should also avoid leading questions (Dellios at [51] [52].
In her useful paper, A Succession Lawyer's Toolkit, Susan Fielding, Special Counsel at Jackson McDonald, presented at a Law Society seminar on 28 September 2011, it explains the procedures a lawyer should follow when taking instructions for and preparing the witnessing of a will. We endorse the contents of that paper (Exhibit 1, pages 131 135).
A solicitor's obligations when taking instructions for and supervising the execution of an EPA
When taking instructions for an EPA and supervising the execution of a will, a solicitor has, at least, the following obligations:
a)to determine whether the donor has capacity;
b)if capacity is in doubt, to ask non-leading questions designed to properly probe that capacity;
c)if capacity is in doubt, to seek medical advice;
d)to be alert to possible conflicts of interest where the person instigating the EPA is a donee, or associated with a donee; and
e)to take proper notes.
In Szozda v Szozda [2010] NSWSC 804, Justice Barrett stated:
[33]The approach outlined by Hoffmann J in Re K [1988] Ch 310 and approved by the English Court of Appeal in Re W [2001] Ch 609 is, in my opinion, appropriate. Those cases were decided in a particular statutory context but the principle regarding the relevant capacity to understand was not, in my view, affected by that and is of general application. Hoffmann J said (at 313):
…
Counsel as amicus curiae helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power: first, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor's affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor's property which he himself could have done; third, that the authority will continue if the donor should be or become mentally incapable; fourth, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court.
[34]The central concept is thus one of complete and lasting delegation to a particular person, albeit with the ability to put an end to the delegation while capacity to do so remains. That concept of empowering another person to act generally in relation to one's affairs raises two basic questions. First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do … . Second, is it to my benefit and in my interests that all these things indeed, everything that I can myself lawfully do can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?
[35]The decision to create a general and enduring power of attorney differs from that involved in the making of a will but must be regarded as of a similar degree of complexity or even greater complexity. I quote, in that connection, a passage from the decision of the Queensland Guardianship and Administrative Tribunal in Re HAA [2007] QGAAT 6 at 34:
Expert medical opinion provided to (and which appears to have been accepted by) the Court in Adult Guardian (Re Enduring Power of Attorney of Vera Hagger) v Vera Hagger, Declan James Barry and Albert Craig Ray SC Qld No 1083 of 2001 (Unreported), was that an Enduring Power of Attorney was both more unfamiliar and more complex (for most members of the community) than a will. Accordingly, a higher cognitive ability and therefore standard of capacity would be required for an Enduring Power of Attorney.
Justice Barrett's reasons apply equally in Western Australia.
Mr Coe's medical history
Fremantle Hospital 5 May 2013 to 15 May 2013
Mr Coe attended Rockingham Hospital on 5 May 2013 with constant abdominal pain, nausea and aphasia (inability to express himself). He had been unable to speak for a day (Exhibit 1, page 1). He was transferred from Rockingham Hospital to Fremantle Hospital.
At Fremantle Hospital, Mr Coe was diagnosed with a malignancy in his liver and an embolic LMCA stroke (Exhibit 1, page 1).
At Fremantle Hospital, the doctors concluded that Mr Coe was not suitable for surgery and should undergo rehabilitation/palliative care. He was discharged from Fremantle Hospital on 15 May 2013 to Rockingham Hospital (Exhibit 1, pages 2 to 4).
Rockingham Hospital 15 May 2013 to 23 May 2013
Mr Coe was admitted to Rockingham Hospital on 15 May 2013. He remained there until 23 May 2013.
During the period between 15 May 2013 and 23 May 2013, it was noted that Mr Coe's aphasia had improved. Nonetheless, he continued to display severe expressive dysphasia and mild receptive dysphasia. He was discharged to St John of God Murdoch Hospice on 23 May 2013 (Exhibit 1, page 9).
The evidence of Mr Coe's medical condition at the Hospice
The medical evidence as to Mr Coe's condition at the Hospice was given by three doctors, each of whom gave a written witness statement and each of whom was crossexamined. Those doctors were: Dr Joanne McKeown, a highly experienced palliative care consultant (Exhibit 2); Dr Ellen Knight, a palliative care registrar (Exhibit 3); and, Dr Fiona Findlay, who had approximately five years of palliative care experience (Exhibit 4).
Mr Coe's medical condition on admission on 23 May 2013
Mr Coe was admitted to the Hospice by Dr McKeown and Dr Knight at 3.30 pm on Thursday, 23 May 2013.
Dr Knight's admission notes record that Mr Coe's symptoms included abdominal pain, nausea/vomiting and agitation (Exhibit 1, page 12).
On admission, Mr Coe was prescribed benzodiazepine, a sedative, and Hydromorphone, a drug similar to morphine. Hydromorphone can contribute to a patient's delirium (Exhibit 2, paragraphs 27 29).
Dr McKeown's evidence was that as part of the standard admission process a patient's cognitive ability is assessed (Exhibit 2, paragraph 7). She examined Mr Coe carefully (Exhibit 2, paragraphs 15 19).
On admission, Dr McKeown examined the medical notes from Fremantle Hospital and Rockingham Hospital (Exhibit 1, pages 1 to 20). They revealed that Mr Coe was diagnosed at Fremantle Hospital with an acute stroke and liver cancer.
Dr McKeown's evidence was that those medical notes revealed that:
f.While in the rehabilitation unit [at Rockingham Hospital], staff noted that the patient had severe expressive dysphasia (could not clearly express himself) and mild receptive dysphasia (had difficulty understanding what was said to him)[.]
Dr McKeown gave evidence that Mr Coe had been diagnosed with liver cancer and a large stroke affecting both the left frontal lobe and left occipital lobe, following which he was initially completely aphasic (unable to speak). Her evidence was that when Mr Coe suffered the stroke, the parts of the brain that had died were those parts that controlled the patient's ability to speak and to understand.
Dr McKeown's evidence was that, on admission, Mr Coe did not understand anything that was said to him (Exhibit 2, paragraphs 15 to 18). She further gave evidence that:
When the patient [Mr Coe] was admitted I considered that the patient had irreversible delirium as a result of his stroke and his liver cancer. It was clear he had no idea of what had happened to him. (Exhibit 2, paragraph 23)
Dr McKeown described delirium as:
[A] state of confusion and disorientation. Delirium affects how the brain works. Patients who suffer delirium may have misperceptions. For example, they may hear something on television and think that it was something that was told to them. (Exhibit 2, paragraph 24)
Delirium includes disorientation, hallucinations, lack of recognition of familiar faces and hearing people. Delirium does not necessarily include delusions (Dr McKeown, T:19).
Dr McKeown stated that:
Delirium is not a mental illness, it is an organic one triggered by the conditions the patient is suffering from and the medications the patient is taking. (Exhibit 2, paragraph 26)
Dr McKeown prepared a WA Liverpool Care Pathway for Mr Coe. She noted that he was agitated, in pain and nauseous. She noted that his communication was very limited due to dysphasia secondary to his recent stroke (Exhibit 1, pages 10 to 19).
Dr McKeown also gave evidence that:
83.Apart from the patient's [Mr Coe's] responses to me on Friday 24 May 2013 in the form of a very slurred and weak response that I understood could be a possible 'yes', the patient did not communicate with me or give me any verbal response on any other occasion that I saw him.
Dr McKeown's evidence as to Mr Coe's capacity
Dr McKeown had a good working knowledge of the legal test of testamentary capacity. She was well placed to determine whether Mr Coe had the necessary capacity:
[WELLS, MR:]… [A]nd the training that I received [working for the Guardianship and Administration Board in Tasmania], indicated to me that in order have capacity the patient needs to understand the question. So in the case of making a will they need to understand the extent of their assets. They need to understand the various options in relation to the question. So they need to understand what the options are in distributing those assets, for example, in the making of a will.
Yes? And they need to understand the consequences of making particular decisions and they also need to be able to effectively and reliably communicate those their understanding of those three things.
Now, in order for you to make an assessment of testamentary capacity for Mr Coe you would have had to attempt to ask him those questions, wouldn't you? I think that making an assessment of testamentary capacity in a patient who's largely unconscious and unable to speak asking them a question about what their assets are and what their belongings are, and who they would like to give them to clearly not going to provide any helpful information.
So you simply don't try to ask, is that what you're saying? No. We ask the patient questions to determine whether or not they are able to answer simple questions, and when simple questions are difficult for patients to answer due to delirium or aphasia, so injury to part of the brain that controls the understanding and production of speech then if the patient can't understand a simple sentence then it's highly unlikely that they will be able to understand a complex question. And in addition to that if the patient is unable to effectively speak it won't really matter what questions we ask them they won't be able to give us an answer.
…
No. But if you were to ask them questions progressively in a yes and no way, and so long as the answers and questions were asked in such a way that they could be reliably interpreted, you can get the same result by a different route, can't you? No, I don't think so. I think the problem is in patients like this we have a situation where if they can respond at all and and apparently sometimes this gentleman was able to respond to according to the notes that I've got in front of me asking a yes or no question is not always reliable and I think I've referred to this in my witness statement in that we asked the patient different questions with different answers to which he gave the same answer. 'Are you hungry?' for example. I'm not exactly sure of the questions that we asked this gentleman, but we can say 'Are you hungry?' and the person says 'Yes'. 'Do you want anything to eat?' The person says 'Yes'. 'Have you had enough food?' The person says 'Yes'. So yes and no doesn't really get us very far.
…
But certainly more reliable, wouldn't you think, than by asking him a complex question to which there's no yes or no answer? Again, a situation where somebody has aphasia or dysphasia, receptive aphasia or dysphasia, which means they can't understand what's being said to them, there's no guarantee that what they're saying is an answer to your question. And they make a verbal response, but that doesn't necessarily indicate that they understood what you asked them.
…
I think there's a misunderstanding with the basic meaning of aphasia. So in the case of Mr Coe he had suffered a brain injury as a result of a stroke that had affected specifically in the part of the brain that controls the understanding and expression of speech. So this is how he presented with his stroke. He became unable to speak and that's why the investigations were done. It's as a result of this specific damage to the part of the brain that controls speech that he was unable to communicate effectively.
(T:2025)
Dr Knight's evidence as to Mr Coe's capacity
Dr Knight's evidence was that:
5.… The patient [Mr Coe] had no testamentary capacity during his admission at the [H]ospice due to his underlying brain injury, being a stroke affecting parts of the brain controlling speech and understanding, the effects of his liver dysfunction and the medications he was taking.
Dr Findlays' evidence as to Mr Coe's capacity
Dr Findlay's evidence (Exhibit 4) was that she was aware from considering Mr Coe's notes that:
10.… the patient [Mr Coe] had suffered an acute stroke where the parts of the brain that had died were those parts that allowed the patient to express himself and to understand and process information.
She further gave evidence that:
12.I was aware that the patient [Mr Coe] also had a degree of liver failure which, in my opinion, would have affected his cognitive ability. Liver failure, when advanced, causes delirium as one of the symptoms which is a state of confusion and disorientation.
Dr Fiona Findlay made a ward round on 25 May 2013 at about 9:30 am. During the ward round, Dr Findlay did not conduct a formal assessment of Mr Coe's capacity because it was clear to her that he was semiconscious, not fully aware of his sensations and surroundings and not able to take part in a conversation.
Dr Findlay's evidence was that on 25 May 2013:
20.I considered that the patient [Mr Coe] did not have cognitive processing ability. Although he might respond to basic sensations such as pain, nauseasness and toilet urges, he could not communicate at a higher level in terms of understanding what was being said to him. In my opinion the patient did not have the cognitive functioning required to make decisions and give instructions for a legal document such as a will and power of attorney. (See also Exhibit 4, paragraphs 21 to 24)
Conclusions as to Mr Coe's medical condition based on the medical evidence
We accept the evidence of the doctors, each of whom was qualified, experienced and alert to the issue of capacity.
The medical evidence establishes, on the balance of probabilities, that Mr Coe was not able to understand what was said to him. Nor was he able to respond to other than basic sensations during the time that he was in the Hospice.
Mr Coe did not have cognitive processing ability to understand or execute a will or a power of attorney.
Mr McKenzie the beneficiary of the will and the donee of the power of attorney
Mr Coe and Mr McKenzie's relationship
Mr McKenzie had known Mr Coe since about 1997.
Mr McKenzie gave evidence by way of a witness statement (Exhibit 8) and crossexamination. He has been a disability pensioner since 1993. In 1997, he moved into the apartment complex where Mr Coe lived. They became friends around 1999.
Mr Coe's family
Mr McKenzie gave evidence that he was informed by Mr Coe that, other than a brother whom he did not like, Mr Coe did not have any family.
Mr Coe's testamentary 'intentions'
Mr McKenzie gave evidence that:
In recent years he [Mr Coe] had mentioned to me that he had wanted to make a Will leaving his savings to me for my daughter's education. He told me he owned nothing else of value. He only had an old car that was barely in running order and the contents of his flat which were not worth anything in saleable value. (Exhibit 8, paragraph 22)
Mr McKenzie at Fremantle Hospital
Mr McKenzie gave evidence that he went to visit Mr Coe when he was admitted to Fremantle Hospital. He was told that Mr Coe had suffered a stroke and could not talk:
He could and did grunt. I went up to David's bedside. He was lying face up in a semiupright position. I said: 'Dave mate, how are you?' He shook his head sideways, clearly indicating 'not good'. I said 'what am I going to do with you?' He shrugged his shoulders. He tried to speak but couldn't. His eyes were wide open. I said 'we couldn't find your keys'. He pointed to a cupboard. I went to the cupboard and found the keys in his pants pocket. David motioned to me to take his keys away. I said I wanted to stay longer. David indicated by a sweeping gesture with both hands that he wanted me to leave. I offered to take David's clothes back to his flat. David nodded 'yes'. Altogether I was with David for about 30 minutes. I took the clothes that Dave had when he entered the hospital to have the[m] laundered. (Exhibit 8, paragraph 26)
Mr McKenzie's oral evidence was that he regarded Mr Coe's hand gestures as an intention on the part of Mr Coe to gift him Mr Coe's vehicle (T:137). He gave evidence that Mr Coe was communicating with a pen and a notebook. He said that Mr Coe wrote a printed note to the effect that 'Zeedan. Must get money'. Mr Zeedan was Mr Coe's landlord's agent.
Mr McKenzie at Rockingham Hospital
Mr McKenzie gave evidence that:
David's [Mr Coe's] second stint at Rockingham Hospital lasted about 1 week. I visited David each day in the afternoon for about an hour. David's eyes were open but he could not speak except for one word every now and again. He indicated that the needed money. By a series of questions I got him to tell me he needed to withdraw money and that the bank passbook with some signed withdrawal slips was in a box under a clock in his flat. During one of these visits to Rockingham Hospital, David wrote in his notebook: 'New … my Will'. I asked him whether he wanted me to arrange for him to get a Will prepared. He nodded 'yes'. I left the ward to seek out the social worker. I couldn't find her as she was not on duty that day. (Exhibit 8, paragraph 31)
Mr McKenzie was made aware by a social worker of the need for Mr Coe to have a medical assessment before executing a will. He tried to locate a doctor to make an assessment while Mr Coe was at Rockingham Hospital (T:141142).
Mr McKenzie at the Hospice 24 May 2013
Mr McKenzie gave evidence that he attended the Hospice to see Mr Coe and that he spent most of 23 May 2013 at the Hospice with Mr Coe.
It is evident that Mr McKenzie could not have spent Thursday 23 May 2013 at the Hospice because Mr Coe was not admitted until 3.30 pm that afternoon (Exhibit 1, paragraph 12). In crossexamination Mr McKenzie conceded that his evidence concerning 23 May 2013 must have related to 24 May 2013 (T: 149).
The care notes record that Mr McKenzie attended the Hospice and spoke to Dr McKeown on 24 May 2013 at '11:00' (Exhibit 1, page 26). Prior to that he spoke to Dr Knight.
Dr Knight's evidence relating to that conversation was:
12.I do not recall the precise words but I remember telling Mr McKenzie that there was no way that the patient [Mr Coe] had the capacity to make a Will because of the fact that the patient had an underlying brain injury, was suffering the effect of his liver dysfunction and because of the medications the patient was taking.
(Exhibit 3)
Dr Knight then contacted Dr McKeown and asked if she would come and speak with Mr McKenzie. She gave evidence that she recalled Dr McKeown explaining to Mr McKenzie that the patient did not have the capacity to make a will (Exhibit 3, paragraph 16).
Dr McKeown's evidence was that she went to Mr Coe's room with Dr Knight. Mr McKenzie introduced himself.
Dr McKeown's evidence was:
39.I do not recall my exact words but I recall saying that Dr Knight had mentioned that Mr McKenzie had been worried about the patient [Mr Coe] making a Will. I explained to Mr McKenzie that the patient did not have the capacity to do a Will because of the patient's stroke and liver cancer.
…
44.[Mr McKenzie said] … words to the effect that the patient [Mr Coe] knew that he wanted to do and that the patient was going to leave money to Mr McKenzie's daughter and that was what the patient had wanted.
45.Whilst in the patient's room, I remember wanting to see whether the patient was able to communicate. I recall that I asked the patient specific questions being 'Are you in pain?', 'Are you comfortable?' and 'Do you need anything?' To each of these questions, the patient gave a very slurred and weak response which sounded to me like it would be a possible 'Yes'. It was in no way a definitive 'Yes' because the patient could not speak properly as a result of his stroke and I did not consider the responses reliable.
46.It was clear to me that by giving the same answer for each question, the patient did not understand what was being asked of him, particularly, although I am unable to recall all the questions that I asked the patient, I do recall that some of his answers were inconsistent.
…
52.I do not recall the specific words I used but I recall making it clear to Mr McKenzie that the patient [Mr Coe] did not have capacity to make a Will and that the Public Trustee would handle the issue.
Mr McKenzie's evidence was that Dr Knight introduced herself and told him that Mr Coe had liver cancer and had suffered a severe stroke. Mr McKenzie said that he had no discussion with Dr Knight or Dr McKeown about a will (Exhibit 8, paragraphs 39 to 44).
Mr McKenzie gave evidence that:
48.I returned to the [H]ospice the following day, which would have been Friday 24 May 2013. In the course of this visit I asked David [Mr Coe] whether he wanted to go ahead with a Will. David's eyes lit up. He nodded 'yes'. He also moved his arms in a pleading gesture.
…
51.David had his eyes open. He made himself understood by nodding up and down for 'yes' and sideways for 'no'.
(Exhibit 8)
We accept the evidence of Dr Knight and Dr McKeown in relation to the conversation with Mr McKenzie. Doctors Knight and McKeown are completely independent witnesses. Neither of them had any interest in whether a will or enduring power of attorney was validly executed. Their involvement was purely that of medical practitioners performing their duties. It follows that we reject Mr McKenzie's evidence. Mr McKenzie was plainly made aware that Mr Coe was unable to make a will.
Mr McKenzie's evidence that Mr Coe communicated to him on 24 May 2013 that he wanted to make a will is inconsistent with the medical evidence. At best, it was wishful thinking on Mr McKenzie's part. In that sense, it is on a par with Mr Coe 'gifting' the car to him.
The McKenzies contact Mr Wells on the evening of 24 May 2013
Mr McKenzie gave evidence that:
52.When I returned to my mother's [Mrs McKenzie's] home she rang Mr Wells. We both spoke to him. We told him that David [Mr Coe] was dying and was at Murdoch Hospice; that David had wanted a will made leaving everything to me; that David only had about $37,000.00 in savings and not much else; that David was a pensioner and had lived for many years alone in a small rental flat; that David had no known relatives or family, had never married or had any de facto relationship; had no children; was terminally ill with liver cancer and a stroke; was not affected by any dementia; was unable to speak but was able to grunt and make his thoughts known by gestures.
53.We told Mr Wells David [Mr Coe] also wanted a power of attorney drawn up appointing me sole attorney for the purpose of terminating his lease and paying his accumulated debts using his savings. (Exhibit 8)
Mr McKenzie and Mrs McKenzie agreed with Mr Wells that he would prepare a very simple will and an EPA. They agreed on a fee of $375.00 if Mr Wells was of the view that Mr Coe could sign the will and the EPA. Otherwise, the fee for Mr Wells' attendance at the Hospice would be $150.
The McKenzies used the loudspeaker on the phone to talk to Mr Wells (T:152).
Mr Wells' evidence, at paragraph 76 of Exhibit 5, is:
a.A David Lionel Coe (Mr Coe) was at Murdoch Hospice;
b.Mr Coe was dying from liver cancer and had also recently suffered a severe stroke;
c.Mr Coe was nevertheless conscious and able to speak;
d.Mr Coe was not affected by Alzheimer's or other dementia. He could think clearly.
e.Mr Coe had never married, had never lived in a de facto relationship and had no known children or next of kin;
f.Wayne [McKenzie] was Mr Coe's best friend;
g.Mr Coe wanted Wayne to get Mr Coe's estate on Mr Coe's death. The estate comprised personal belongings of no worth and about $23K in savings;
h.Mr Coe needed Wayne to be Mr Coe's attorney so that Wayne could terminate Mr Coe's residential tenancy and access Mr Coe's bank account to pay utility bills and draw funds for Mr Coe's funeral expenses;
i.Mr Coe had agreed with Wayne's suggestion that I prepare a Will and an EPA making Wayne sole executor and beneficiary under the Will and sole donee under the EPA[.]
Contrary to (c) and (d), the medical evidence of Doctors McKeown and Knight was that Mr Coe could not speak or think clearly during his time at the hospital.
Contrary to (e), Mr Coe had a brother who was a next of kin.
Contrary to (g), at least as relayed to Dr McKeown, Mr Coe wanted Mr McKenzie's daughter to receive the money and not Mr McKenzie.
Contrary to (g), (h) and (i), Mr Coe lacked the capacity to give those instructions.
It follows that the information conveyed to Mr Wells by Mr McKenzie was misleading in important respects.
Even a brief consideration of Mr McKenzie's instructions should have alerted Mr Wells to the fact that Mr McKenzie had a clear financial interest in the proposed will and that Mr Wells needed to be cautious about what Mr McKenzie said.
In the light of the McKenzies' instructions in (h), Mr Wells should have drafted a limited, rather than a plenary, enduring power of attorney.
Mr Wells drafted a will and an enduring power of attorney that evening after returning from a function (Exhibit 5, paragraph 86).
Mr Wells' state of knowledge before attending the Hospice
Mr Wells was familiar with the Banks v Goodfellow (1870) LR S QB 549 test for testamentary capacity (T:55).
Mr Wells had attended the Law Society seminar on 28 September 2011 (Exhibit 1, page 112) at which Susan Fielding's paper (Exhibit 1, pages 131 135) was presented.
Mr Wells knew that Mr Coe was in a hospice and that Mr Coe was dying from liver cancer and had recently suffered a severe stroke.
Mr Wells assumed that Mr Code was on painkillers and sedatives, including morphine. He was not aware of the precise medication he was on. Mr Wells was aware that there were side effects from the medications (T:77).
Mr Wells conceded that he was aware that strokes can cause brain damage and that this may cause an inability to speak (T:56).
Mr Wells believed that Mr Coe was conscious and able to speak.
Mr Wells' attendance at the Hospice
On Saturday 25 May 2013 at about 8.30 am, Dr Findlay spoke to Ms Beattie, the nurse in charge. Ms Beattie told her that she had been told by Mr McKenzie that Mr Coe would be signing a will that day. Dr Finlay asked Ms Beattie to call her when the lawyer arrived (Exhibit 4, paragraphs 6 to 8).
Mr Wells gave evidence that he arrived at the Hospice at about 10.30 am. He introduced himself at reception and said that he was at the Hospice to arrange a will and an EPA for Mr Coe (Exhibit 5, paragraphs 89 to 90):
92.Reception also advised me that Mr Coe's treating doctor was available to speak to if I needed to speak to her. I took that comment to mean no more than that the doctor could give me a summary of symptoms and a prognosis and likely life expectancy. As I already knew that Mr Coe was terminally ill with serious health issues and with little time left I considered there was nothing materially extra in that regard that the doctor could add. I also believed with good reason that the doctor would not be involved in assessments of testamentary capacity or the witnessing of documents.
93.When I arrived at Mr Coe's ward there was just Nina [McKenzie], Wayne [McKenzie] and Mr Coe, and now me. Mr Coe was the only patient in the ward. Mr Coe's bed was the only bed in the ward.
94.Mr Coe's condition had deteriorated overnight from what I had understood it had then been. He was conscious but his eyes were closed and he was unable to speak. He was moving in his bed in a state of agitation as if acting out a dream. Wayne had been keeping a constant vigil. Nina had only been there that morning. They said that Mr Coe could hear us and understand us. I was told he indicated this awareness by nodding sideways for 'no' and up/down for 'yes' as appropriate to a question.
Mr Wells confirmed that Mr Coe's condition, as set out in paragraph 94 above, continued throughout the entire 30 to 40 minutes that Mr Wells was in the room (T:79).
Mr Wells had been told by Mr McKenzie the previous evening that Mr Coe was conscious and able to speak. Mr Coe was unable to speak. Mr Wells described Mr Coe as 'in a state of agitation as if acting out a dream'. Even on Mr Wells' case there had been a significant deterioration in Mr Coe's condition overnight.
Mr Wells' own evidence of Mr Coe's condition raised obvious questions as to his capacity. Mr Wells stated that Mr Coe looked on the verge of death (T:98).
In crossexamination, Mr Wells accepted that he had doubts about Mr Coe's capacity (T:114).
The situation plainly cried out for a medical opinion on Mr Coe's capacity. Dr Findlay was available and willing to speak to Mr Wells.
Even on Mr Wells' case, he was informed by the receptionist that Mr Coe's treating doctor was available to speak to him if he needed to speak to her.
Even if Mr Wells thought Mr Coe was capable of communicating in some form as a result of what Mr McKenzie said to him (Exhibit 5, paragraphs 94 to 96), Mr McKenzie was not capable of expressing a medical view as to Mr Coe's capacity. It was entirely inappropriate to rely on Mr McKenzie.
Dr Findlay's conversation with Mr Wells prior to the execution of the will and the EPA
Dr Findlay continued her rounds. At approximately 10 am, a nurse came and told her that a lawyer was in Mr Coe's room. She went and introduced herself to Mr Wells and the McKenzies. She gave evidence that:
28.I recall saying to Mr Wells words to the effect that the patient [Mr Coe] was very sick and was not expected to live long, and then asked Mr Wells whether he required any medical information on the patient. If I were to have given any medical information, my intention would have been to make it clear to Mr Wells that the patient was semiconscious, not capable of talking and certainly not capable of signing any legal documents. I would have tried to make it clear that in my opinion, the patient did not have capacity to make legal decisions because he was semiconscious.
Dr Findlay went on to say:
30.I did not say anything else as given the patient's [Mr Coe's] obvious condition where he was semiconscious and could not engage in any conversation I was not expecting that a will and power of attorney would be made by the patient.
Mr Wells denied that Dr Findlay had a conversation with him prior to executing the will and EPA. He put to Dr Findlay that she had not made an entry in her case notes. We accept Dr Findlay's explanation that she would not always write an entry if 'there was nothing clinical or relevant to record in there' (T:45).
In fact, Mr Wells made the serious allegation that her evidence was false without any basis for that allegation (T:76). When Mr Wells was given the opportunity to clarify whether his case was that Dr Findlay's recollection was faulty or false, he maintained that it was false (T:124).
The McKenzies denied that Dr Findlay visited the room on this occasion (T:145, T:170).
We have no hesitation in accepting Dr Findlay's evidence. She was an independent medical practitioner performing her duties who had no interest in the validity of the will. She was aware that a will was to be executed and had specifically made herself available to answer questions from Mr Wells.
We reject Mr Wells' and the McKenzies' evidence.
Given Mr Wells' knowledge from statements made to him and his own observations, he should never have proceeded to taking instructions for the execution of the will and EPA without seeking Dr Findlay's advice about Mr Coe's capacity.
Taking instructions for and executing the will and EPA
Mr Wells' description of when he took instructions from Mr Coe and when he executed and witnessed the will and the EPA appear at paragraphs 107 to 121 of his statement (Exhibit 5).
107.At that stage I went up to Mr Coe.
108.I said I was a lawyer. I asked if he could hear me. He nodded 'yes'. I asked if he wanted a Will done. He nodded 'yes'. I asked if he wanted Wayne [McKenzie] to get his estate under the Will. He nodded 'yes'. I asked if his property consisted of just his furnishings and his savings. He answered 'yes'. I asked if he wanted anyone else to get any of his property, such as his family. He nodded 'no'. I asked if he had any family. He answered 'no'. I asked if he wanted Wayne to be his executor, to look after his affairs and property following his death. He nodded 'yes'. I asked if he wanted anyone else to be his executor. He nodded 'no'. I asked if he wanted Wayne to be his attorney. He nodded 'yes'. I asked if he wanted anyone else to be his attorney. He nodded 'no'. I told him I had prepared the docs on that basis.'
109.Wayne and his mother did not interfere with or intervene in this questioning process.
110.As it subsequently transpired, with just one exception, each and every answer Mr Coe provided me was not only in accord with what the McKenzie's had told me the previous day but was also absolutely factually correct.
111.The only answer that subsequently proved to be not wholly the case is that Mr Coe had advised Wayne 10 to 12 years earlier of a brother whom he did not name and he did not know the whereabouts of and whom he had no time for and who he did not then know was alive or dead.
112.All three essential elements of testamentary capacity were covered in that line of questioning. Consistent with the need to establish capacity to my reasonable satisfaction, I kept the questions and the questioning process as succinct as possible so as not to cause Mr Coe any more discomfort than was necessary.
113.As can be seen from the line of questioning my questions randomly required 'yes' and 'no' answers. At no time did Mr Coe provide an incorrect or inappropriate response.
114.At no stage of my interchange with Mr Coe did he convey the impression that he was delusional.
115.From the process described above I was satisfied that I was understood by Mr Coe and that he understood what he was doing.
116.I did not read the documents to Mr Coe verbatim because they were so brief and simple and because I had already told him everything essential about their content.
117.I asked Mr Coe if he was able to sign the documents if we helped him into a position for that purpose. He nodded 'yes'.
118.Until then, Mr Coe had been laying down half way to his right side. Wayne and Nina then elevated the bed-head bringing Mr Coe to a semi-reclining position and we all helped to get Mr Coe tilted gently to his left so that he directly faced us.
119.Because it was thought that Mr Coe's dominant right hand might be numbed by his body's earlier position, Wayne placed a biro in the fingers of Mr Coe's left hand but Mr Coe resisted taking the biro and shook his head to indicate 'no'.
120.Wayne then placed the biro between fingers in his right hand. On that occurring, Mr Coe gripped the biro and held onto it, twiddling it from time to time.
121.At my request Mr Coe then raised his right arm to sign the documents. He did this quaveringly and with difficulty and obvious effort, but did so without physical assistance from any of us. The pages requiring his signature were pushed up against the biro tip with a magazine behind the page to enable the biro to imprint. Mr Coe did this 4 times. Each time the exercise took greater toll on him. The signatures were successively fainter. All 4 signatures were recognisably signatures but different from each other.
122.After this I conferred with Nina & Wayne. I said I was satisfied on balance that Mr Coe had testamentary capacity but there was likely to be significant difficulties with getting the EPA recognised to operate Mr Coe's bank account. Likewise there would be difficulty getting probate of the Will because of its proximity in time to his impending death, place of death, the manner in which my instructions had been taken and the signature variations.
Mr McKenzie gave an additional explanation as to how Mr Coe responded to questions; namely, that he was able to lift his hand (T:133134). Mrs McKenzie gave similar evidence (T:171). Mr Wells told Dr McKeown this (Exhibit 2, paragraph 72) but he did not refer to it in his statement.
Mr Wells' recollection of what he asked Mr Coe was inconsistent between his witness statement (Exhibit 5), what he told Dr McKeown, his letter to the LPCC (Exhibit 1, page 108), and his oral evidence (T:8694). In effect, he gave three versions.
Mr Wells ultimately sought to rely on what was in his witness statement (T:93).
As a result of the inconsistencies revealed by Mr Musikanth in his crossexamination of Mr Wells, we are unable to say with any confidence what questions Mr Wells asked of Mr Coe.
Whichever version of Mr Wells' questions one proceeds on, the questioning was plainly inadequate to establish that Mr Coe had capacity in relation to the will.
The inadequacy of Mr Wells' questioning of Mr Coe is disclosed in the following exchange during crossexamination:
And the vast majority of the questions were predicated on the assumption that what had been told to you by the McKenzies was correct and he was getting him to confirm or deny certain things? Yes. But the can I answer more fully. There were matters that I expected him to say no to, such as 'Do you want somebody else to get the estate? Do you want somebody else to be the executor?' And the answers were no to those questions because I expected them to be no.
But they were all related to the function of the will and the EPA, weren't they? Yes, they were. Yes, they were. Yes.
So you didn't ask any questions at the beginning to establish some form of to satisfy yourself that this protocol was actually reliable to start with? No. I thought that the protocol I thought that the protocol adopted through the questioning process I applied was sufficient. That's what I thought.
You didn't think perhaps to ask him an inane question to test the reliability of answers, such as 'Does a dog bark?' for argument's sake? No. I didn't think to do that. I suppose if I ever had a chance to do this again, I would probably do a lot of things differently but that's I didn't think it necessary then and with hindsight, I still don't think it was fatal to the exercise I was doing.
You didn't ask him any questions to work out whether he was even orientated as to time or place, did you? No, I did not ask him any questions like that. No.
(T:9596).
Throughout his questioning of Mr Coe, Mr Wells proceeded on the assumption that Mr Coe was reliably able to answer yes/no questions (T:100).
Mr Coe did not open his eyes when he was 'signing' the will (T:112). Mr Coe was unable to read either document (T:110). Despite this, Mr Wells did not read the will or the EPA to Mr Coe.
The quality of the 'signature' was such that a Probate Registrar would have inevitably issued a requisition. Mr Wells was aware that a requisition was likely to issue (Exhibit 5, paragraph 122).
Taking notes
It was essential for Mr Wells to take notes at the signing of the will (for example, Exhibit 7, page 2; Exhibit 1, page 134). Mr Wells did not make a file note of the execution of the will or the EPA. He relied on his memory (T:116117; 19.05.14).
Even after Dr Findlay telephoned Mr Wells on Monday 27 May and told Mr Wells that she would refer the matter to the Public Trustee (Exhibit 2, paragraph 75), Mr Wells still failed to take a note (T:119).
Mr Wells proceeded on the basis of what the McKenzies told him as to Mr Coe's level of understanding and his observations of Mr Coe (T:101).
Mr Wells accepted that he did not ask Mr Coe any questions about an EPA other than whether he wanted Mr McKenzie to be his attorney (T:108). Mr Wells conceded that he asked insufficient questions of Mr Coe about the EPA (T:109).
Mr Wells' questions relating to the EPA were manifestly inadequate.
Mr Wells' awareness of Mr Coe's condition and its impact on his capacity
The following exchange took place in crossexamination of Mr Wells (T:62):
The doctor was available to speak to you if you needed to? Yes. Yes.
All right. So that offer was there and you chose not to take the reception up on that invitation? On that invitation, that's correct. Yes.
All right. You accept that the doctor, had you taken up that invitation, might also have been able to tell you something about the medication that Mr Coe was on? Yes.
And you would assume that he would have been on some form of medication, painkillers and perhaps sedatives? Absolutely.
All right. And you knew that some sedatives might have an impact on the capacity of a stroke patient ? Yes, I will accept that.
to provide instructions for the purposes, at least, of making a will? Yes. That's correct. That's right.
Right. So you chose not to spoke to your doctor despite the fact that the doctor may have been able to tell you something about the medication he was on? That's right.
And that would have enabled you to assist you in forming a judgment as to whether or not he had capacity? It might have provided some assistance.
…
Time to time. And when you had gone to see people with serious terminally ill with serious health issues and with little time left, they've always had the same mental state? No. It varies from person to person.
…
So everyone's situation is different and the doctor here prepared to speak to you? Yes.
And yet on the basis only that he was terminally ill with serious health issues and little time left, you concluded that the doctor there was nothing materially extra in that regard that the doctor could add? Yes. You see, if I wanted
(T:70,71)
Dr Findlay's conversation after the execution of the will
While completing her rounds, Dr Findlay was approached by a nurse who said that Mr Wells wanted to speak with her. When Dr Findlay returned to Mr Coe's room she was informed by Mr Wells that the patient had signed a will and an EPA. Dr Findlay gave evidence that:
37.I do not recall my exact words, but I recall that I said that I had concerns about that and that the practitioner had not asked me to provide a capacity assessment. I said that although I had not formally assessed the patient [Mr Coe] I would have very real concerns about the patient's capacity to sign a Will.
Dr Findlay went on to say:
38.… The patient's [Mr Coe's] ability to communicate was almost nonexistent and was certainly not reliable. It consisted of minimal and unreliable guttural responses, moans or groans.
Mr Wells gave evidence that:
125.About 5 to 10 minutes after Nina returned, Mr Coe's treating physician, a doctor named Fiona, entered the ward. I now know her as Dr Findlay. She sat down with us. We had a friendly chat. She said that in the hospice's view Mr Coe lacked testamentary capacity and that the docs were being referred to the Public Trustee. I respectfully disagreed with her on the lack of capacity but acknowledged my own quandary trying to make my own assessment in a less than ideal situation. I acknowledged the hospice's right to notify the Public Trustee. She acknowledged everyone in the ward was acting in good faith and hoped the Public Trustee would apply common sense when realising Wayne's bona fides and the difficulty and expense of administering a very small estate where there were no known next of kin yet also no rival claimants.
Mr Wells acknowledged his own quandary as to Mr Coe's testamentary capacity. Mr Wells own words establish the need for advice from Dr Findlay as to Mr Coe's capacity. Even had we accepted Mr Wells' evidence that Dr Findlay attended on only one occasion, after the will and EPA were executed, he could have sought Dr Findlay's advice on that occasion as to Mr Coe's capacity. Mr Wells could then have made a file note as to Dr Findlay's views or accepted that advice and torn up the will and EPA.
Mr Wells accepted that where there was a potential problem with capacity, a doctor's opinion should be obtained as to testamentary capacity (T:107).
Mr Wells conceded that, 'with the benefit of hindsight', he 'should' have made every effort to see the doctor and 'get the doctor to be involved in the process' (T:73).
Making suitable inquiries that a person has the capacity to execute a valid will or EPA is an essential part of a lawyer's duty once there is a question as to that person's capacity. That was clearly the case in relation to Mr Coe, and Mr Wells conceded as much (T:74).
Mr Wells had attended a Law Society of Western Australia seminar on 28 September 2011, where it was stated that:
If there are doubts as to the client's capacity or if the client is very ill, it is always prudent to try and arrange for the client's doctor to be a witness.
(Exhibit 1, page 134)
At paragraph 124, Mr Wells said:
Nina left the ward. I thought at the time that she had gone to get the copying done and to provide a copy to reception. She later advised me she had simply gone to the toilet. While she was away I cautioned Wayne [McKenzie] not to do more using the EPA than what was said to me originally was its purpose.
As a result of the findings made in VR 229/2010 and VR 12/2011, consent orders were made by the Tribunal on 10 August 2011.
Among them were orders to the following effect:
(a)the practitioner's practising certificate and any practising certificate to be granted be subject to the following specified conditions 30 days from the making of the order and continuing;
(b)the practitioner not accept instructions that relate to or are or are likely to result in proceedings in the District Court of Western Australia, the Supreme Court of Western Australia (except in noncontentious probate matters), the Family Court of Australia and Western Australia (except those matters that relate to the making of consent orders) and the Federal Court of Australia;
(c)the practitioner not appear as counsel or instructing solicitor in proceedings in the District Court of Western Australia, the Supreme Court of Western Australia, the Family Court of Australia and Western Australia and the Federal Court of Australia;
(d)the practitioner be reprimanded;
(e)the practitioner pay fines to the Legal Practice Board in the sum of $1,000 in respect of each matter; and
(f)the practitioner pay the Committee's costs fixed in the sum of $5,000 in respect of each matter.
The orders made in both proceedings also record the following:
The purpose of penalty in disciplinary proceedings is to protect the public rather than punish the practitioner. The Committee is of the view that the public will be protected from a practitioner accepting work in an area in which he has shown incompetence by having that practitioner prohibited from accepting instructions to do work of a similar nature; and
The Committee considers and the practitioner has agreed that the practitioner should not be accepting instruction involving superior courts.
On 15 November 2012, the following further condition was added to Mr Wells' practising certificate by the Professional Affairs Committee of the Legal Practice Board:
The practitioner is not to institute, continue or defend any civil litigation in any jurisdiction other than uncontested applications for divorce and consent Form 11 issues.
Mr Wells, some two years ago, attended continuing professional development seminars with the contents of these seminars influencing his behaviour. His subsequent misconduct is serious. This suggests either a continued failure by the practitioner to appreciate the standards of conduct required by practitioners or a continuing unwillingness or an inability to meet those standards: Legal Practitioners Conduct Board v Kerin [2006] SASC 393 at [47] [49]; (2006) LSJS 271.
Mr Wells' previous disciplinary history demonstrates incompetence, delay and very poor judgment. This case demonstrates continuing incompetence and lack of judgment in a different area.
9. Whether or not Mr Wells understands the error of his ways, including an assessment of the any remorse and insight (or a lack thereof) shown by Mr Wells
The practitioner's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted. (A Legal Practitioner (S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108] - [109]).
In A Solicitor NSW, the New South Wales Court of Appeal stated at [80]:
4.In New South Wales Bar Association v Maddocks [1998] NSWCA 102 Court of Appeal, 23 August 1988, a case concerning a barrister’s alleged professional misconduct, Kirby P said that it was more likely that the Court would withhold disbarment or suspension where the practitioner had admitted guilt. His Honour said:
'This is not simply because such admission may save time and avoid unnecessary controversy. It is because a barrister is more likely to be accepted by judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of self insight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court.'
Lack of remorse should not, in the absence of aggravating factors, be the predominate factor leading to a heavy sanction if otherwise a lighter sanction would be applied; Re H (a Barrister) [1981] 1 WLR 1257. Mr Wells had the right to have the allegations made against him tested fully at a hearing about whether the conduct was unprofessional conduct as a legal practitioner.
If the defence advanced was scandalous, or without merit, there will be an aggravating factor to which more weight can be attached in determining the sanction to be applied; Re H (a Barrister) [1981] 1 WLR 1257, 1260 - 1261.
There are cost consequences of Mr Wells requiring the applicant to prove that his conduct was unprofessional, but they are separate from any sanction and cannot be used to reduce any appropriate sanction; Detata at [41]).
Mr Wells has not shown any remorse. Despite agreeing with the Tribunal's findings that:
a)Mr Coe's condition when Mr Wells saw him raised obvious questions as to his capacity (Wells at [89]).
b)Mr Wells had doubts about Mr Coe's capacity (Wells at [90])
c)The situation plainly cried out and for a medical opinion (Wells at [91]);
d)Mr Wells had been informed by reception [at the hospice] that Mr Coe's treating doctor was available (Wells at [92]);
Mr Wells still proceeded with the supervision of the execution and witnessing of a will and an EPA.
Those concessions alone would have been sufficient to find Mr Wells guilty of professional misconduct. He completely lacks any insight into his actions.
Rather than acknowledge his failings Mr Wells has sought to persist in his completely unwarranted attack on Dr Findlay.
Mr Wells did not need to submit that Dr Findlay had lied. It would have been sufficient to have argued that her recollection was faulty.
Our reasons noted that Mr Wells made the serious allegation that Dr Findlay's evidence was false without any basis for that allegation. Despite being given the opportunity to withdraw the allegation he persisted in it. The Tribunal also noted in the reasons that it had no hesitation in accepting Dr Findlay's evidence (see Legal Profession Complaints Committee and Wells [2014] WASAT 112 (Wells) at [97] and at [99]).
Statements made in courts and tribunals provide an absolute privilege against defamation proceedings. Coextensive with this right is the obligation on a practitioner not to advance allegations of perjury or other serious misconduct, unless there is a basis for the allegations, and such allegations are necessary for the conduct of the case. Mr Wells' allegations were without any basis and were not necessary for the conduct of his case.
In light of the Tribunal's findings, one might have expected Mr Wells to address the consequences of those findings in his submissions on penalty and costs. As the Tribunal has noted, Mr Wells concentrated his submissions not on penalty and costs, but on disputing the Tribunal's findings against him. In particular, following an analysis of Dr Findlay's evidence, Mr Wells submits:
131.Two sayings come to mind.
132.The first saying is from scripture '… For false christs and false prophets will rise and show great signs and wonders to deceive, if possible, even the elect. Matthew 34:24) (NKJV)
133.The second saying is 'a conman is a conman precisely because he doesn't look or sound like a conman'.
Further, Mr Wells' submissions state 'I have contested these proceedings because they are based on lies' (Mr Wells' submissions at [212]).
During oral submissions Mr Wells persisted in alleging perjury, even going so far as to state that the Legal Profession Complaints Committee and the Tribunal were complicit in perjury. As noted, Mr Wells only needed to contend that Dr Findlay was mistaken in her recollection. Why he persisted and persists in alleging perjury remains unexplained. This line of defence is scandalous.
Mr Wells lack of remorse indicates that, if he continues in practice, he will pose a risk to the public.
10. Are there any special skills possessed of Mr Wells?
There is no evidence that Mr Wells has any special skills which would support his continuation in legal practice.
11. The practitioner's personal circumstances
Although Mr Wells referred to his own health and financial problems and the health problems of his wife in the penalty hearing, Mr Wells led no evidence as to his personal circumstances at the time of the conduct, nor at the penalty hearing, that the Tribunal could give any weight to or which might be considered mitigatory of his conduct.
12. Are there any other matters related to Mr Wells' fitness to practise?
Mr Wells led no evidence of any other matters related to his fitness to practise.
Costs
The Committee sought an order for the payment by the practitioner of counsel's fees and other disbursements incurred in the proceeding in the amount of $19,800. The Committee did not seek a costs order in relation to its solicitor's fees.
Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party.
The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35].
The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].
There is no reason why, in the circumstances of this case, the Tribunal should depart from its usual practice in relation to costs in vocational disciplinary proceedings. An order for costs in favour of the Committee should therefore be made.
The Committee presented a detailed schedule of disbursements and copies of accounts. The time incurred by Counsel for the Committee was reasonable and necessary to properly prepare and present the case, which occupied two hearing days, and the other disbursements incurred by the Committee are also reasonable. Assessed overall, counsel's fees sought by the Committee are reasonable and an order should be made for the payment by Mr Wells of the Committee's costs in the amount sought.
Conclusion
The Tribunal has carefully considered the Committee's submissions and Mr Wells' submissions, such as they were.
The Tribunal considered suspension but we are satisfied that Mr Wells' conduct demonstrates that he is permanently unfit to practise.
We have concluded that it is appropriate that a report be made to the Full Court of the Supreme Court of Western Australia.
Taking into account matters set out above, it is regrettable that after 43 years of practice, Mr Wells' career in law should come to this unfortunate end.
Orders
1.Pursuant to s 438(4)(b) the Tribunal makes and transmits a report on the findings of professional misconduct to the Supreme Court of Western Australia (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).
2.Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended 14 days from the date of this order until the determination of the Supreme Court (Full Bench).
3.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $19,800 by 27 February 2015.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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