Why it is never a good idea to hire a contentious probate lawyer

Dawson Davies, representing the Co-Executor, raised several legal challenges primarily aimed at undermining the Non-Resident Executor's position as a joint executor and asserting control over the estate administration, while the Non-Resident consistently countered these challenges with a focus on transparency, fairness, and adherence to legal procedures. These differing approaches, significantly influenced by the legal representation, had a profound impact on the probate process, leading to considerable delays, increased costs, and ultimately, court intervention.

Dawson Davies’ Legal Challenges:

1. Non-Residency and Surety Requirement: Dawson Davies consistently highlighted Executor’s residency in the United Kingdom as a major impediment to his role as an executor. They argued that as a non-resident, the Executor was required to provide a surety, a financial guarantee to protect the estate. This was presented as a standard practice for non-resident executors under Western Australian law, and they suggested that this requirement could be avoided if their firm were to administer the estate, thus implying that they needed to manage the estate in order to avoid the surety.

The Non-Resident’s Response: The Executor contested this assertion, stating that a surety is not typically required for named executors under the Administration Act, especially where they are also beneficiaries. He conducted his own research and cited legal precedents to support his position, demonstrating his understanding of probate law and his proactive approach to challenge misinformation. He argued that Dawson Davies' interpretation was outdated and did not reflect modern practices, particularly in light of available technology that allows for seamless international communication and collaboration. He viewed this as a tactic by Dawson Davies to create unnecessary hurdles and to exert control over the process.

1. Withdrawal of the Non-Resident's Application: Dawson Davies insisted that the Executor should withdraw his individual application for probate as a prerequisite for filing a joint application, and that a joint application could only be prepared by their firm. They argued that this was the only way to proceed correctly, and that the court would not allow the Co-Executor to simply "join" his existing application.

The Non-Resident's Response: the Executor disagreed, maintaining that his sister could join his existing application without requiring him to withdraw it and start the process again, citing precedents and procedural guidance from the Supreme Court to support his position. He argued that Dawson Davies' insistence on withdrawal was a strategy to delay the process, exert control, and increase their firm’s fees. The Non-Resident consistently offered to draft the amended motion for a joint application and share administrative responsibilities.

1. Control Over Estate Funds: Dawson Davies proposed managing the estate funds through their firm’s trust account rather than using a jointly controlled independent estate bank account. This was presented as a necessary step for smooth administration and to ensure compliance with legal requirements.

The Non-Resident’s Response: the Executor strongly resisted this, raising concerns about potential conflicts of interest, a lack of transparency, and unnecessary risks. He argued that as Dawson Davies were only representing his sister, it was inappropriate for them to manage all the estate funds. He also cited the provisions of Chapter 4, Part 4.2 of the Legal Profession Uniform Law (WA) 2022, highlighting his concern for compliance and transparency. He proposed using a jointly controlled estate bank account to ensure all transactions were transparent and both executors had equal control, rather than relinquishing sole control to a single party.

1. Scope of Dawson Davies' Involvement: Dawson Davies were vague and non-committal regarding their proposed role and responsibilities within a "joint application." They did not clarify the division of responsibilities or the extent of their involvement in administrative tasks and appeared to want to take on full control of the estate to administer, limiting the Non-Resident’s involvement. They also did not fully define their proposed role, which prevented a proper evaluation and acceptance of their proposals.

The Non-Resident’s Response: the Executor repeatedly sought clarification on the specifics of Dawson Davies’ role, expressing concerns that their approach would effectively sideline him and reduce his role to "merely signing some documents". He wanted a clear delineation of responsibilities, with defined roles and target dates for each activity. He was also concerned about their ability to handle complex cross-jurisdictional tax implications, especially concerning his non-resident status, and he was not prepared to proceed with any arrangement that exposed either party to risks stemming from Dawson Davies’ potential lack of expertise in this area.

1. Caveat as Leverage: Dawson Davies facilitated the filing of a caveat by the Co-Executor, which initially prevented the Non-Resident's probate application from proceeding. This caveat was later used as leverage, with its withdrawal being conditional upon the Non-Resident withdrawing his application and submitting to their representation.

The Non-Resident’s Response: the Executor viewed the caveat as an obstructive tactic rather than a legitimate legal challenge, because the Co-Executor took no action to substantiate its claims or challenge the will. He believed that the primary purpose of the caveat was to frustrate the process and pressure him into submission. He sought to have the caveat removed, but was met with resistance and attempts to use it to gain control of the process.

Impact of Legal Representation:

• Escalation of Conflict: Dawson Davies' actions and their representation of the Co-Executor significantly escalated the conflict between the siblings. Their focus on control, their lack of transparency, and their misrepresentations of legal requirements created an adversarial environment, which made a collaborative resolution impossible.
• Undermining Collaboration: The legal representation directly undermined any attempts at collaboration. Dawson Davies consistently rejected the Non-Resident's offers to engage in open dialogue and resolve points of contention, and instead used delaying tactics and coercive behaviour. They dismissed the Non-Resident’s concerns and continued to present their proposals with no explanation, rationale, or justification. They failed to respond to the Non-Resident’s requests for information and clarifications in a timely manner and only provided the information after threats of legal action.
• Influence on the Co-Executor's Behaviour: Dawson Davies' approach likely influenced the Co-Executor's behaviour, reinforcing her distrust of the Non-Resident and her unwillingness to cooperate. The Co-Executor's lack of engagement and repeated failure to complete agreed-upon tasks further exacerbated the situation. Her communication was consistently unprofessional and hostile, and often and without provocation, abusive towards the Non-Resident.
• The Non-Resident’s Independent Stance: the Executor, on the other hand, demonstrated a strong understanding of the complexities of the probate process, as well as his rights and obligations as an executor. His approach was marked by his focus on transparency, fairness, and the need for all parties to act in the best interests of the estate. He sought to clarify and address the legal issues raised by Dawson Davies. He did not accept their misrepresentations or manipulative tactics. He maintained a consistent and level-headed approach throughout the process, always focusing on moving the probate application forward.
• Focus on transparency and clear process: The Non-Resident focused on ensuring a fair and transparent process, repeatedly requesting clarification from Dawson Davies on their proposed approach, seeking a clear understanding of the division of responsibilities. He was meticulous in his approach, drafting detailed documentation and outlining the necessary steps for the probate process. He also demonstrated flexibility, revising his plans to accommodate the Co-Executor’s preferences.

Consequences of Differing Approaches:

• Prolonged Delays: The differing approaches resulted in significant delays in the probate process. The initial caveat, the subsequent disputes over the joint application, and the repeated failures to collaborate led to an extensive and protracted legal battle. It took 436 days from the passing of their mother to the point that the court intervened.
• Increased Costs: The legal wrangling and delays led to increased costs for the estate. The engagement of multiple legal firms, along with the time spent on correspondence, research, and court appearances, resulted in significant expenditure.
• Court Intervention: The ongoing conflict and lack of progress ultimately led to the intervention of the Supreme Court. The judge mandated the appointment of a neutral and independent solicitor to oversee the administration of the estate, which is what the Non-Resident had requested from Dawson Davies in response to their proposal to administer the estate, rather than Dawson Davies managing the estate through their trust account.
• Appointment of a Third Party Solicitor: The Court intervened to grant probate to both executors, but only on the basis that both the Non-Resident and the Co-Executor agreed to appoint a neutral and independent solicitor to administer the estate. This was a direct result of the lack of cooperation and trust between the two executors and the obstruction of Dawson Davies, taking only 41 days to sign the agreement to formalise the engagement.

In conclusion, the legal challenges raised by Dawson Davies, and the Non-Resident's responses, highlighted a stark contrast in approaches towards the administration of their mother's estate. Dawson Davies’ tactics, focusing on exerting control and prioritising their client’s interests, clashed with the Non-Resident's collaborative, transparent, and legally sound methods striving for an equitable, fair and inclusive approach. The impact of legal representation was significant, as it reinforced the conflict and hindered attempts at resolution, leading to extensive delays, increased costs, and ultimately, court intervention.

And at the time of this analysis 510 days since our mother passed - probate remains outstanding. with Dawson Davies and the Co-Executor successfully delaying the process by another 41 days on this occasion. This raises the total number of days caused by their obstructions and inaction to 368 or 72% of the time.

The Non-Resident's total days increased to a total of 22 days of probate being dependent on his actions alone. 18 of which were encountered at the end of last year during which he completed the impossible search and selection process to appoint a neutral local legal practitioner to undertake the administrative activities that he had already prepared in readiness.