In a case that has sent ripples through the legal community, a Melbourne lawyer has been found to have taken advantage of a cognitively impaired 91-year-old widow, resulting in him obtaining over $250,000 from her estate.

The Victorian Civil and Administrative Tribunal (VCAT) has uncovered disturbing details about how John O'Brien, the lawyer in question, manipulated the situation for his financial benefit.

The elderly woman, referred to as M in the tribunal findings, was in a vulnerable state when O'Brien, her former lawyer and self-proclaimed friend, urged her to sign a will while she was hospitalised in May 2017.

This will, drafted without her instructions, appointed O'Brien as executor and trustee, entitling him to a significant portion of her estate.

Melbourne lawyer John O’Brien took advantage of a cognitively impaired 91-year-old to obtain over $250,000 from her estate. Credit: Shutterstock

On 6 June 2017, O'Brien brought the will to the hospital, and M signed it with O'Brien and his then-wife as witnesses.

However, a neuropsychological assessment report later concluded that M's cognitive impairment affected her decision-making ability, and she did not meet the legal threshold to make or change a will.

Despite this, O'Brien proceeded to represent M at a VCAT guardianship hearing without her knowledge or consent, where the tribunal appointed State Trustees Limited as an administrator and the Office of the Public Advocate (OPA) as M's limited guardian.

The OPA's investigation revealed M's opposition to O'Brien's actions 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’.

Yet, O'Brien continued his pursuit and drafted a codicil in August 2017, which again benefited himself and M's nephew.

Under questionable circumstances, M signed this codicil at O'Brien's request.

M died in the hospital in October 2017.

The tribunal's senior member, Elisabeth Wentworth, found 22 out of 34 charges against O'Brien to be proved, including professional misconduct and common law misconduct.

These charges stemmed from O'Brien's false statements on a VCAT guardianship application and his dishonest conduct throughout the ordeal.

VCAT's findings revealed that O’Brien, acting as a solicitor, filed the application after a hospital social worker informed him about M's hospitalisation and the discovery of $26,000 in her bag.

O’Brien chose ‘dementia’ as the disability and mentioned ‘early dementia’ in the notes.

Wentworth described O'Brien's communication with State Trustees Limited and the Victorian Legal Services Commissioner as 'disgraceful’.

In one particularly shocking email to the commissioner, O'Brien expressed violent sentiments towards the gatekeepers of his profession.

‘The gatekeepers controlling entry to my profession have failed to keep out the rubbish, and they should, each and everyone, be shot, ideally with a small calibre pistol to the back of the head,’ O’Brien wrote.

Despite the tribunal's findings, O'Brien maintained that he was fulfilling M's wishes and insisted she had the mental capacity to make decisions about her estate.

However, his probate application was discontinued in 2019 after the deputy registrar of probates raised concerns.

M's nephew was subsequently granted the power to distribute her assets by the Victorian Supreme Court.

In a further twist, O'Brien wrote to M's interstate relatives in January 2019, proposing a deed where he would receive 15 per cent of the estate. This deed was executed after O'Brien ‘allegedly applied inappropriate pressure’ on family members.

The value of M's estate was over $2 million, and O'Brien's share exceeded $250,000, in addition to legal costs charged to the estate.

Penalties will be ordered at a later date by Wentworth.

Members, it’s essential to consult with lawyers and professionals for trusted and reliable legal advice, particularly regarding sensitive matters.

Key Takeaways

• A Melbourne lawyer named John O'Brien was found by a tribunal to have committed professional and common law misconduct by influencing an elderly, cognitively impaired client to sign a will in his favour.
• The lawyer became the beneficiary of 15 per cent of the client's estate, obtaining more than $250,000, and made threats to the Legal Services Commissioner.
• The tribunal found that O'Brien had made false statements in a guardianship application and drafted the will without proper instructions from his client, who could not legally make or change a will due to her cognitive impairment.
• While O'Brien maintained that his actions were in line with his client's wishes, the Victorian supreme court granted her nephew power over the estate, and penalties against O'Brien will be decided at a later date.

What do you think of this story, members? Share your thoughts in the comments below.

 

[marni]

And so often by their own relatives. Happened twice in my family. I did not fight it because in the end, the solicitors would get most of the estate in their fee