TWO Hunter sisters pursuing a $4 million estate have expanded legal action against an executor to include lawyers involved with a 2015 settlement the women allege was “constructed on a background of deceit and misrepresentation”.
Gail Hutchinson and Karen Bermingham are seeking damages from Newcastle firm Mason Lawyers, Newcastle solicitor Paul Mitchell and Sydney firm GHS Legal after amending a claim against Leonard Timmins, the executor and major beneficiary of their stepfather Kevin Fox’s estate after Mr Fox’s death in 2016.
The amended claim naming the legal firms and Mr Mitchell as defendants was filed in the NSW Supreme Court last week. It followed a decision in July by Justice Michael Slattery which noted Mr Mitchell and Mason Lawyers would be “strongly criticised” in proceedings about how Mrs Hutchinson and Mrs Bermingham received nothing from their stepfather’s estate.
This was despite a promise by Mr Fox in 2011 to his wife of 38 years, Joyce – Mrs Hutchinson’s and Mrs Bermingham’s mother – that he would “look after the girls” in his will.
Although Mr Fox prepared a will in 2011 with his stepdaughters as beneficiaries he made a new will in 2014, just weeks before his wife’s death from Alzheimer’s disease, leaving his estate to his business partner Mr Timmins and a number of charities.
Mrs Fox’s 2011 will, Mr Fox’s 2011 will and subsequent changes were overseen by Mr Mitchell, who sold his sole practice to Mason Lawyers in late 2011 and began working with the firm.
In their amended statement of claim the women allege Kevin Fox spoke to Mrs Bermingham three months after her mother’s death and said Joyce Fox’s estate was valued at $8.64.
This was despite Mrs Fox owning a Cessnock property when she married Mr Fox, joint ownership of two properties and a death benefit of nearly $1 million payable by a trust in her name.
Mrs Bermingham alleges Mr Fox offered her a cheque for $12,000 during the meeting which he said was to be a full and final payment of any claim she had over her mother’s estate.
The following year Mrs Bermingham and Mrs Hutchinson signed an agreement and accepted $230,000 as full payment from their mother’s estate after advice from GHS Legal and with the involvement of Mason Lawyers.
In July Justice Slattery noted that 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”.
“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.”
Justice Slattery found Mr Timmins 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.
In their amended statement of claim the two women seek a declaration from the court that “because of the breach of promise by Kevin Fox, Leonard Timmins holds the whole estate on constructive trust for the two girls”.
Mason Lawyers director Ross Mason said the women’s claims against the firm and Mr Mitchell would be “strenuously defended”.
“We are confident that the firm’s position, and that of Mr Mitchell, will be vindicated after a full and proper hearing of all the facts at a final hearing,” Mr Mason said.
GHS Legal director Greg Smith said he was “extremely disappointed” that the claims had been made against his firm and denied “any failure of my duty to my former clients”.
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