Professional misconduct; Swearing on an affidavit knowing or ought to have known to be false.
The respondent committed substantial breaches of her professional duties by issuing a will, an application of a grant of probate and a written response to a fellow legal practitioner knowing these to be false. Primary orders included a reprimand and supervisory order along with orders for further education.
In 2010, the respondent was engaged by KC and her son, DC to draft their individual wills. In NSW, two witnesses were required for a valid will. The respondent was the sole witness to both KC and DC’s wills. DC and KC passed away in 2015 and 2016 respectively.
The respondent met with the surviving children of KC and provided them with copies of her will and certified these copies as being true and correct. A second witness’ attestation had been added to the document. This addition was known to the respondent.
The respondent then acted for the executor of KC’s estate and obtained probate using the altered will without informing the Court of the fact that the second witness was not present when KC signed the will as attested.
The respondent provided a certified copy of the Grant of Probate to one of the beneficiary’s legal representative, RB who noticed and queried the discrepancy between the will with one witness signature and the will with two witness signatures. The respondent falsely responded to RB regarding the two witnesses.
The respondent admitted that she had prepared and witnessed an affidavit that was false, attempted to mislead the Supreme Court of New South Wales by filing documents she knew were false and attempted to mislead RB by her response to his query over the two wills. Did the respondent’s admitted conduct amount to professional misconduct and what orders should be made?
The Tribunal found that the respondent had engaged in professional misconduct with respect to each of the allegations.
The Tribunal assessed the respondent’s present fitness to practise, and considered that an order for removal should not be made unless the Tribunal was persuaded of the respondent’s “probable permanent unfitness” for practice. The Tribunal formed the view that the respondent was unlikely to err in the same manner again and she expressed remorse throughout the proceedings for her failure to observe professional standards. The Tribunal took into consideration the respondent’s experience and the fact that she did not have prior history of any improper conduct and the fact that the respondent had continued to practise at her firm, and was not suspended by the Law Society. The Tribunal considered a number of character references provided by respected members of the community to be significant.
The Tribunal was satisfied that the respondent was not a continuing risk to the profession, nor regarded as being permanently unfit to practise. The respondent was reprimanded and prohibited from engaging in legal practice except as an employed solicitor supervised by a solicitor with an unrestricted practising certificate. The respondent was also required to undergo certain “courses of education” in both wills and probate and legal ethics.
As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics and Practice Centre
 Council of the Law Society of New South Wales v Renfrew  NSWCATOD 63, .