JOYCE Fox had one request of her husband of 38 years in the period before dementia rendered her mute and claimed her life on June 29, 2014.
She just wanted to know Kevin Fox would look after her daughters Gail and Karen - Kevin’s step-daughters – if she died before him.
And so Kevin did. In April, 2011 he signed a will leaving his estate, eventually worth $4 million, to them, after Joyce accepted his assurances and rejected legal advice to secure assets for her daughters in her will.
What happened next is playing out in the NSW Supreme Court where Justice Michael Slattery recently noted that the conduct of lawyer Paul Mitchell and Newcastle legal firm Mason Lawyers “will be strongly criticised in the proceedings”.
The Deed was an instrument drafted to formalise an agreement that had been constructed on a background of deceit and misrepresentation.Two Hunter women in court case over stepfather's will.
Mason Lawyers director Ross Mason said he expected Mr Mitchell and his firm “will be vindicated” after a “full and proper hearing of all the facts”.
The court will hear how Kevin drew up a number of further wills after 2011, including one less than two weeks before Joyce’s death that wiped Gail and Karen as beneficiaries, and another in June, 2015 that left his business partner Leonard Timmins with half the estate after Mr Fox died on May 19, 2016. The remainder was distributed to charities in $400,000 chunks.
Justice Slattery in July found Mr Timmins, appointed executor to Mr Fox’s estate, had a case to answer after Gail Hutchinson and Karen Bermingham alleged he engaged in “fraud and misleading and deceptive conduct”. It is an allegation that Mr Timmins “clearly denies”, the judge said.
The two women want a 2015 settlement with Mr Fox set aside after they accepted $230,000, and agreed not to make any claim against Mr Fox’s estate, despite the settlement agreement noting Karen and Gail claimed Kevin was bound by his promise to their mother to leave the estate to them, and Mr Fox’s denial of that promise.
The two women allege Mr Fox’s denial “was known by Mason Lawyers to be false”, after documents obtained under subpoena showed Joyce Fox told Paul Mitchell in February, 2011 that her husband would change his will to provide for her daughters. They also show she rejected his advice to secure her assets for them in another way.
Mr Mitchell drew up Mr Fox’s April, 2011 will leaving his entire estate to Gail and Karen, sold his legal firm to Mason Lawyers later that year, and drew up further wills for Mr Fox in June, 2014 and June, 2015 that dropped the two women.
Documents obtained under subpoena show Mr Mitchell also advised Mason Lawyers staff not to send correspondence about the 2014 will change to Mr Fox’s home because he “does not want his family to know he is coming in”.
Mr Mitchell’s notes from 2014 include advice from Mr Fox that his wife had “advanced Alzheimers. Going off fairly quickly”, as they prepared the new will removing Joyce Fox’s daughters.
Mrs Hutchinson and Mrs Bermingham “allege that their stepfather procured the release of their rights by misleading and deceptive and unconscionable conduct and non-disclosure of material facts”, Justice Slattery noted in a decision on July 27.
The 2015 settlement deed that left them with $230,000 was “an instrument drafted to formalise an agreement that had been constructed on a background of deceit and misrepresentation”, the women alleged.
They were not informed of the true nature of Joyce’s estate or Kevin’s assets and “were not aware that Kevin had reneged on his promise to Joyce one week prior to her death, at a time when Joyce did not have capacity to change her will”, they said.
Justice Slattery noted it was “clearly a weakness” in the women’s case that they were independently legally advised when they signed the settlement deed.
Justice Slattery restrained Mason Lawyers from representing Mr Timmins at the full hearing of the women’s claim after they argued the firm would need to defend its actions “as their employees’ conduct and integrity will be seriously challenged”.
While Mr Timmins argued “there will be no case for Mason Lawyers to meet and defend”, Justice Slattery said it was “highly probable” that Mr Mitchell’s personal performance “is going to come under close scrutiny and criticism”.
“The Court is concerned about the extent of the criticism of his conduct that is likely to arise and that may ultimately flow over to the firm Mason Lawyers defending its own reputation, whilst he and the firm attempt to defend his reputation,” Justice Slattery said.
Serious allegations against Mr Mitchell as an employee of Mason Lawyers included that “he is said to have acted unconscionably in 2014 to assist Kevin Fox’s unconscionable conduct in altering his will” and engaging in “misleading and deceptive conduct in the negotiations for the settlement deed in September, 2015”, Justice Slattery said.
Once Mr Mitchell acted for Kevin Fox to change his will, “he and Mason Lawyers retained all of Mr Mitchell’s knowledge right through until the settlement deed in September 2015 as they acted for Kevin Fox”, the judge said.
“Whatever be the more finely tuned causes of action arising out of these fundamental facts, in my view, they are sufficient to thoroughly embroil Mason Lawyers’ reputation through Mr Mitchell’s relationship with the firm as an employee.
“In my view, his conduct and integrity and that of the firm are under attack and he and the firm have a personal stake in the proceedings.”
Mr Timmins’ motion to have the women’s case struck out has been temporarily stayed while the women reformulate their pleadings. While Justice Slattery restrained Mason Lawyers from representing Mr Timmins in a full hearing of the women’s case, he allowed the firm to represent Mr Timmins in any strike-out proceedings.
Mr Mason said Mr Timmins was fully aware of the July 27 judgment and Mr Timmins believed the claims pressed by the women “are without foundation”.
Mason Lawyers and Mr Mitchell are not presently parties in the proceedings, but “in the event of claims being brought against this firm and/or Mr Mitchell, those claims will be strenuously defended”, Mr Mason said.
He said Mr Mitchell retired from practice on September 7, 2016 after a career of more than 40 years.
Mrs Hutchinson and Mrs Bermingham’s solicitor Craig Olsen, of AMC Lawyers, declined to comment.