Injunction to restrain solicitor

By Heirsandsuccesses on November 21, 2024

The Court’s jurisdiction to grant an injunction preventing a solicitor from acting is based on safeguarding the legal practitioner’s duties to the Court. As explained by Heenan J in Holborow v Macdonald Rudder [2002] WASC 265, A lawyer may face restrictions on representing a client if their previous involvement, conduct, or potential conflict of interest raises doubts about their ability to remain independent and impartial.

Such intervention becomes necessary when there is a tangible risk of conflicting obligations between the lawyer’s responsibilities to the court and their duties to the client.

For instance, a lawyer may encounter a conflict if they are required to testify in a case they are working on or if they have a significant personal interest in the outcome of the litigation, such as being a partner in a firm that is involved in the case or holding substantial shares in one of the parties involved in the dispute.

Rule 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA):

Rule 27.1: A solicitor who is required to give material evidence in a case cannot act as an advocate for their client during the hearing.
Rule 27.2: A solicitor, their associate, or their law practice must cease acting for the client if continuing to do so would prejudice the administration of justice.

When determining whether a solicitor’s continued involvement would harm the administration of justice, the critical test is whether a fair-minded, reasonably informed member of the public would believe that the integrity of the judicial process and the appearance of justice prevents the solicitor from acting.

However, a Court will not automatically restrain a solicitor from acting simply because they may need to give evidence. For such an injunction to be warranted, the circumstances must present a genuine risk to the integrity of the judicial process.

If the solicitor’s evidence pertains only to a formal or minor issue, the court is unlikely to issue an injunction to prevent them from continuing to represent their client. Courts are reluctant to interfere with a litigant’s choice of legal representation. Restraining a solicitor from acting in a proceeding is an exceptional measure, only exercised in clear and extraordinary circumstances.

Background

Henry John Regan (the deceased) died on 29 September 2021. His wife, Helen Rose Regan, predeceased him on 30 August 2019. At the time of his death, the deceased resided at the family home at 78 Elvira Street, Palmyra, with Bryn, also named the seventh defendant. The deceased and Helen had ten children, all parties to this proceeding.

In FRANCES LOUISE CRONAN as executrix of the will of HENRY JOHN REGAN -v- CHERYL ANN COATES as universal beneficiary under the will of HENRY JOHN REGAN [2024] WASC 61 the plaintiffs, Frances Louise Cronan and Bryn Edward Regan, are the executors and trustees named under an informal will signed by Henry on 12 September 2021 (“2021 Will”). Frances and Bryn are seeking a court order to affirm the validity of the 2021 Will.

The first to fourth defendants are Henry and Helen’s other children, while the fifth is Henry’s brother. Several defendants—Cheryl Ann Coates, John Henry Regan, Mark James Regan, Kaye Suzanne Regan, Roxanne May Kerr, and Kevin George Regan (the “active defendants”)—assert that Henry lacked testamentary capacity when signing the 2021 Will and did not approve its contents. Cheryl, John, and Mark have filed a counterclaim seeking the court’s validation of a separate informal will dated 1 May 2010 (“2010 Will”).

Application

1. On 16 November 2023, the active defendants filed an application requesting that Cassandra Michelle Guy a solicitor provide affidavit evidence and that she be restrained from acting in the proceedings.
2. The application contends that Ms. Guy is a material witness and should be disqualified from representing Frances and Bryn.
3. The active defendants submitted the following in support of their application:
Two affidavits sworn by Cameron Victor Eastwood on 28 August 2023 and 1 November 2023.
Written submissions dated 18 December 2023.
4. Frances and Bryn oppose the application, relying on an affidavit sworn by Luke Jarrad Bone on 19 January 2024 and their written submissions dated 23 January 2024.

Disputed Wills

Two wills are central to the dispute:

2010 Will: Signed by Henry on 1 May 2010, witnessed by Thelma Joy Faulds and Donald Reese Faulds. Although Henry did not sign the second page, the Faulds did. Its key provisions include appointing Helen, Frances, and Mark as executors, gifting the entire estate to Helen (provided she survived Henry by 14 days), and alternative arrangements for distributing the estate among the children if Helen predeceased Henry.
2021 Will: Allegedly signed by Henry on 12 September 2021, with Frances and Bryn claiming it was signed in the presence of Bryn and Robert Hunter, while another witness, Matthew Whitford-Smith, attested outside Henry’s presence. The Will appointed Frances and Bryn as executors, granting Bryn the right to reside in the family home and distributing the estate among Henry’s children and brother with specific proportions.

Frances and Bryn submit that Henry gave instructions for the 2021 Will in July or August 2021, understood its terms, and signed it after Bryn read it aloud in the presence of witnesses. The 2021 Will reflects Henry’s testamentary intentions at the date of his death, even though it was not executed in accordance with the formal requirements contained in the Wills Act1970 (WA)

The Active Defendants submit that the 2021 Will was drafted without Henry’s instructions, that he refused to engage with its terms, and that he lacked the capacity to understand or approve its terms due to health issues and medication. They also dispute the presence of Ms Guy at a dinner where the family allegedly discussed the Will and deny that Bryn adequately explained the document to Henry.

On May 1, 2010, Henry signed a document (2010 Will) Thelma and Donald Reese Faulds witnessed, although there was no signature on the second page. The key provisions outlined in the document state that Henry appointed Helen, Frances, and Mark as the executors of his estate. Helen will inherit the entire estate if she survives Henry by at least 14 days. However, if she does not survive that duration, the Will distributes the estate to Bryn and the ten children.

The 2021 Will has allegedly been signed by Henry on every page and witnessed by Bryn and Robert Hunter, with an additional witness, Matthew, present, though not in the same room. There are disputes surrounding Henry’s signature’s validity and understanding of the 2021 Will’s contents.

Key provisions of the 2021 Will include revoking all prior wills and establishing Bryn and Frances as executors. Additionally, Bryn was granted a lifetime right of residence in the family home, provided specific conditions are met. The family home is to be shared equally among multiple heirs, while shares in Poulet Pty Ltd are allocated to Bryn, along with horses designated for co-owners. The 2021 Will distributes the residual estate among Henry’s children and brother, with particular allocations specified for each.

Summary of Pleadings

Frances and Bryn claim that Henry instructed Frances mid-2021 to draft a new will, which she prepared and discussed with him. They state that Henry understood, approved, and signed the 2021 Will on 12 September 2021 in the presence of Bryn and Mr. Hunter, who attested to the execution. They argue that the 2021 Will represents Henry’s testamentary intentions despite not meeting formal requirements under the Wills Act 1970 (WA).

In February 2021, during a family dinner at Frances’ home, Ms. Guy presented Henry with a new draft of the 2021 Will, which he declined to review. The executors counter that the 2021 Will originated from a 2020 draft prepared by Ms. Guy without Henry’s instructions.

They allege Henry could not comprehend or approve the Will’s contents due to hearing impairments, medical conditions, and a lack of proper explanation. They further assert that any approval Henry gave lacked an appropriate understanding of the Will’s terms or the extent of his estate. Frances and Bryn deny Ms Guy’s involvement at a family dinner concerning the Will.

Issues arising in the Application

The Court must address the following issues arise for determination on the Application:

1) Will Ms Guy be required to give evidence to determine contested issues before the court? The Court must consider the likely contested matters in the action to answer this.
2) if the answer to (1) is yes, then would it prejudice the administration of justice if Ms Guy continues to act for Frances and Bryn?
3) should Ms Guy be ordered to provide evidence on an affidavit?

To validate the 2021 Will, Frances and Bryn must prove that Henry intended the document to serve as his will. They bear the onus of satisfying the court that:

1. There is a document.
2. The document reflects Henry’s testamentary wishes.
3. Henry, through words or actions, demonstrated that he intended the document to operate as his will without further action on his part.

Frances and Bryn assert that Henry understood and approved the 2021 Will’s contents, including a clause granting Bryn a life interest in the family home. This clause is central to the dispute, as it did not appear in Henry’s earlier Wills and significantly affects other beneficiaries. Key issues include whether Henry understood the effect of this clause, approved its inclusion, and that it reflected his testamentary intentions.

Frances and Bryn argue a central issue in the case: Henry and Ms Guy discussed including a clause in the 2021 Will granting Bryn a life interest in the family home. Evidence suggests that while Tom asked Ms Guy to prepare a Will similar to the 2020 draft, her discussions with Henry likely informed the inclusion of the life interest clause. The clause appears in identical terms in the 2021 Will, except for one removed subparagraph.

Although Frances and Bryn claim that the preparation of the 2021 Will by Frances following Henry’s instructions and executed 18 months after Ms Guy’s involvement, the Court finds her role significant as a draft Will Ms Guy prepared, following partial instructions from Henry, likely influenced the 2021 Will.

Following the principles in Hatsatouris v Hatsatouris [2001] NSWCA 408. The Court concluded that Ms Guy’s evidence was material for resolving contested issues, particularly concerning Henry’s testamentary intentions.

Frances and Bryn argue that the Court should not restrain Ms Guy from acting for them, even if she is a material witness. They further contend, citing Kallinicos v Hunt(2005) 64 NSWLR 561, that the late timing of the application makes it impractical, costly, and inconvenient to remove her at this stage of the proceedings.

However, the Court held that Ms Guy shouldn’t continue representing Frances and Bryn despite no suggestion of impropriety on her part. As a material witness concerning instructions from Henry for the draft that formed the basis of the 2021 Will, her dual role could lead to a conflict between her duties to the Court and her obligations to her clients.

The decision

The Court found that Ms Guy is a material witness. It concluded that her continued representation of Frances and Bryn concludes that a fair-minded observer would consider her removal necessary to ensure the proper administration of justice. Consequently, an injunction is granted restraining her from acting for them.

The Court also determines that Ms Guy should provide an affidavit detailing the circumstances under which she prepared Henry’s draft Will, as her testimony is essential to resolving contested issues fairly, timely, and cost-effectively.

The Court directed the parties to confer and attempt to agree on consent orders reflecting these reasons. They must file competing minutes of proposed orders if no agreement is reached within seven days.

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