When acting in litigation, it is essential to take detailed instructions about any circumstances that weaken your client’s case in addition to those that support the case.
In one claim, the practitioner acted for a claimant in a claim under Part IV of the Administration and Probate Act 1958 (Vic) against the estate of her deceased de facto partner. The deceased had an infant child from a previous marriage.
During the dispute, the de facto asserted a constructive trust interest in land belonging to the deceased and an interest as purchaser under a contract of sale signed by the deceased.
The practitioner knew there had been some litigation between the deceased and the de facto but did not investigate further. That litigation had in fact been resolved on the basis the de facto relinquished any claim on the land. The defence filed by the deceased’s estate in the Part IV proceeding supported this. It should also have been clear to the practitioner the de facto’s interest as purchaser was illusory as she had no means to complete the contract.
The parties eventually reached settlement and returned to the court for approval of the compromise. However, the judge was concerned that after costs were paid out of the estate to the parties’ legal representatives, little would be left for the infant and ordered the parties to renegotiate the settlement. Under the new settlement, the practitioner agreed to pay the costs incurred by the estate because of allegations that the proceeding was unnecessarily drawn out or had no proper basis.
If the practitioner had fully investigated the history of dealings between the de facto and the deceased, and properly considered the de facto’s ability to rely on the contract of sale, he would have realised how weak the de facto’s claim was much earlier.