A Melbourne lawyer urged an elderly former client to sign a will while in hospital that made him the beneficiary of 15% of her estate and later made threats of physical violence to the state’s Legal Services Commissioner, a tribunal has found.
John O’Brien, obtained more than $250,000 in 2019 from the estate of a 91-year-old widow who had a cognitive impairment when she signed the will drafted by her former lawyer, findings handed down in the Victorian civil and administrative tribunal (Vcat) last week found. The woman, referred to as “M”, died in October 2017 after being admitted to hospital months before.
In a finding handed down last week, the senior Vcat member Elisabeth Wentworth found 22 charges out of 34, comprising professional misconduct and common law misconduct against O’Brien, were proved in part or in full.
These included making false statements on a Vcat guardianship application.
O’Brien, who had previously acted for M – who had no living children or siblings – and said they then struck up a friendship, made a guardianship application for her after she was hospitalised in May 2017, the Vcat findings said.
After receiving a phone call from a hospital social worker, informing him of M being in hospital and $26,000 cash found in her handbag, O’Brien made the application in
his capacity as a solicitor.
He chose “dementia” as the disability, and referred to “early dementia” in the notes.
The next month, without taking instructions from M, he drafted a will which appointed himself as executor and trustee of her estate.
On 6 June 2017, O’Brien took the will to the hospital and M signed the document, with O’Brien and his then wife as witnesses.
But a neuropsychological assessment report concluded that while M was able to express her wishes, she had a cognitive impairment which affected her decision-making ability and did not meet the legal threshold to make or change a will.
O’Brien appeared for M at a guardianship hearing at Vcat, without her instructions or knowledge.
Vcat was satisfied M had a disability and could not make judgments about her estate and a member appointed for the State Trustees Limited as an administrator of the will and ordered the Office of the Public Advocate (OPA) to determine her wishes. Vcat later appointed the OPA as M’s limited guardian.
On 11 July, an OPA investigator visited M and “found her reported wishes were to refuse to have anyone appointed and that it was a ‘damned cheek’ of Mr O’Brien to make the application”.
O’Brien drafted a codicil – a supplement to M’s will – in August 2017 which specified two beneficiaries – himself and her nephew – would each receive 20% of the estate. M then signed the codicil at O’Brien’s request.
O’Brien’s conduct led to M’s nephew making a complaint to the Victorian Legal Services Commissioner in December 2017 which later launched disciplinary proceedings against the lawyer.
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O’Brien rejected the commissioner’s allegation his conduct was dishonest but Wentworth found he knowingly made false statements, including in his guardianship application to Vcat.
Wentworth said O’Brien’s emails with State Trustees Limited (STL) between 2017 and 2018, and to the commissioner between 2017 and 2021, included “disgraceful” communication.
In an email to the commissioner, O’Brien wrote that “the gatekeepers controlling entry to my profession have failed to keep out the trash and they should, each and every one, be shot, ideally with a small calibre pistol to the back of the head”.
In response to the charges, O’Brien agreed his correspondence was inappropriate and he was ashamed of what he wrote, the findings said.
But he maintained his only aim was to carry out his friend M’s wishes and said he was adamant she had the mental capacity to make decisions about her estate.
A probate application O’Brien made in 2018 was discontinued in May 2019, after the deputy registrar of probates raised concerns about it. The Victorian supreme court granted her nephew the power to distribute M’s assets.
In January 2019, O’Brien wrote to M’s interstate relatives proposing a deed, without instructions to do so, where he received 15% of the estate. The deed was executed “after allegedly inappropriate pressure” from O’Brien on family members, the Vcat findings said.
The value of the estate was over $2m and O’Brien’s share was in excess of $250,000. He also charged legal costs to M’s estate.
Wentworth will make orders for penalties at a later date.