Introduction

In Hall v Hall [2023] WASC 342, Christopher Hall brought proceedings against his brother Michael Hall in Michael's capacity as executor of their mother Alwyn's estate, and in Michael's personal capacity.

An issue arose as to whether the firm acting for Michael in both capacities, Taylor Smart, owed potentially conflicting duties to him in those different capacities.

Facts

Michael was appointed executor of Alwyn's estate, which was valued at over $9 million ([31]).

Christopher sought various orders requiring Michael as executor to take action against Michael personally relating to loans, property improvements and unpaid rent ([35]-[37]).

Michael opposed the orders sought ([39]).

Taylor Smart (lawyers) acted for Michael as executor and personally, filing affidavits and submissions without distinguishing his capacities ([65]).

The court noted Taylor Smart had prepared Alwyn's will and power of attorney ([65]), and there was no evidence Michael as executor had independent advice about potential claims against Michael personally ([68]-[69]).

Analysis

In Hall v Hall, Howard J considered Taylor Smart's representation of Michael in his personal and executor capacities gave rise to a potential conflict of duties ([66]).

His Honour stated it was "imprudent, at the least" for Taylor Smart to act for Michael in these potentially conflicting capacities without distinguishing between them ([70]).

The court has a supervisory role over its officers to ensure the administration of justice, which includes ensuring solicitors avoid acting where there are conflicting duties.

Michael as executor was entitled to be advised independently about potential claims against Michael personally ([68]-[69]).

Michael ought to consider his positions and obligations as executor and personally, and obtain independent advice, given the potential conflict ([74]).

The court refrained from making any order at that time, but considered it sufficient to raise the obvious matter ([75]).