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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22809
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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We would like to know if we have grounds to make a

Customer Question

We would like to know if we have grounds to make a complaint.My father passed away last October. He had made a will leaving his estate to my sister and I. He stated in his will that he would list any items in a notebook that he wanted to give to anyone else. My father had been in a relationship with his partner for 13 years. In 2005 he and his partner signed a Contracting Out Agreement (prepared by the firm that we have concerns with). The Contracting Out Agreement states that each party's property would remain their own and neither would have any claim on the other’s. My father named a close friend to both himself and his partner as Executor.My father made no mention of his partner in his will. He also did not list any gifts to her in his notebook.Probate was granted over 6 months ago. We were advised that we could collect items from my father’s partner’s residence. No claim had been made against the will.With no discussion, my father’s partner has decided to keep a number of items that belonged to my father and may have given away some of his belongings.We met with the solicitor for the estate on another matter and asked if my father’s partner was able to retain items from the estate. The solicitor told us that as they were Solicitors for Dad’s partner, they could not give us any advice.The Executor has refused to assist us in settling this matter and has clearly sided with Dad’s partner and has become verbally abusive. He has also indicated that the Solicitor for the estate has taken Dad’s partner’s side and advised him that the Contracting Out Agreement was invalid as it had not been updated. He also made it clear that the estate would be charged for a meeting between himself and the Solicitor for the estate (over $700).We have received a letter from the solicitor asking us to make a list of items that we would like to remove from the property.We believe that there is a conflict of interest. Do we have grounds for making a complaint.
Submitted: 12 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 12 months ago.

From your description there does appear to be a conflict of interest. The solicitors cannot act for the estate and also for the partner who survived him, if there is any issue in relation to a conflict of interest between the two. The contracting out agreement will stand because there is no expiry date. Your father's partner may however have a claim against the estate subject to the contracting out agreement. This again illustrates why there is a conflict of interest. You can make a complaint to the lawyers complaint service and you can find the link for doing so here:-

Customer: replied 12 months ago.
thank you. I asked the solicitor if they were still acting on behalf of dad's partner as stated in the meeting. They replied that they were not in this matter. To me it's still a conflict of interest. Is that correct?
Expert:  Chris The Lawyer replied 12 months ago.

If they acted for the estate, I am not sure they ever were able to act for your father's partner. The best practice in this situation would be to send away both the estate files and the partners files to alternative lawyers. If they acted for both together initially there would be grounds for a complaint. Sending the partners file away is the correct course, although your reply implies that the firm may act for her on other matters, other than any potential claim against the estate.

Expert:  Chris The Lawyer replied 12 months ago.

The executor may also have a problem although removal of an executor of an estate is a more difficult exercise. He must act impartially whatever his views on the situation, but he cannot charge as an executor for the time he spends on this, unless there is a specific clause in the will which entitles him to charge.

Customer: replied 12 months ago.
she has been their client for a number of years I believe. She has not made a claim against the estate formally. She is refusing to hand over items that are listed in the contracting out agreement. Even though there is no formal claim, it still feels like a conflict of interest.
Expert:  Chris The Lawyer replied 12 months ago.

It is a conflict of interest if she is acting contrary to the specific wishes of your father

Customer: replied 12 months ago.
the executor is not charging for his time, the solicitor is apparently charging the estate for time spent in meetings with the executor
Expert:  Chris The Lawyer replied 12 months ago.

I would have thought that an issue like this is clear since your father made his wishes expressly known. The executor should be getting on with the distribution of the specific items and administration of the estate rather than getting into the issues of whether the contracting out agreement is up-to-date. So you may want to suggest to the estate solicitors that you will be looking at their bill of costs very carefully to ensure that only estate administration is charged, and that issues where the executor feels personally involved, are billed to him direct. The lawyers bill of costs can be revised by the Law Society if necessary

Customer: replied 12 months ago.
Thank you
Expert:  Chris The Lawyer replied 12 months ago.

Glad to help, you can rate when you are ready

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