The Supreme Court of Western Australia recently had to consider whether a solicitor should be restrained from continuing to act in Probate proceedings. In essence, one set of people wanted the Court to restrain the other set of peoples' solicitor from continuing to act on the basis that the solicitor would be required to give evidence that was material to the issues to be determined. That approach was resisted so the Court was required to determine (on this part of the application):
would the solicitor be required to give evidence that was material to the determination of issues before the Court?
if the answer to that question is yes, would it prejudice the administration of justice if the solicitor did continue to act?
The Court considered that the Will that the solicitor had drafted, but not signed, provided the provenance of the Will that was signed and which one set of people sought to propound. As such, the Court found that the solicitor was a material witness as to the instructions that she took from the deceased and his testamentary intentions at the time he signed the later Will (which was largely based on the unsigned draft Will).
Having found that the solicitor was a material witness, it then considered whether the administration of justice would be prejudiced if the solicitor continued to act. The Court emphasised that there was no suggestion of impropriety on the part of the solicitor but found that a fair minded, reasonably informed member of the public would conclude that the administration of justice required the solicitor not to continue to act.
The Court acknowledged the inconvenience, cost and impracticality that the clients may suffer as a result of the solicitor being restrained from acting but found that those issues could be alleviated by allowing another solicitor in the firm, in which the now restrained solicitor worked, to continue to act in the proceeding (that solicitor previously having been involved in the drafting of affidavit evidence.)
The case is 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.
