An important element of practicing law is navigating conflicts of interest. It is broadly understood that if there is a conflict between a client’s interests and a lawyer’s interests, that lawyer will be barred from acting for the client. The commentary accompanying the Law Society of Ontario’s Rules of Professional Conduct explains that “[a] lawyer’s own interests can impair client representation and loyalty.”
However, it is also important to remember that conflicts of interest may arise under other circumstances – for example, when a lawyer’s interests conflict with their duty to the court. This duty arises from a lawyer’s “status as a professional who serves, not only clients, but also the public interest,” plus the “high degree of autonomy that lawyers experience from external controls other than those imposed by self-regulation”: see Robert Bell and Carolina Abela’s paper, “A Lawyer’s Duty to the Court”.
To avoid conflicts of interest between their own interests and their duty to the court, lawyers ought to refrain from representing clients in proceedings if counsel has a financial interest in the outcome of those proceedings. Not only may there be professional ramifications if counsel represents a client under such circumstances, but the client’s case may also be impacted detrimentally, as demonstrated by the New South Wales Supreme Court’s recent decision in Peek v Wheatley, [2025] NSWSC 554.
The Case: An iPhone Will and a $13.6 Million Estate
In Peek, a will document was found in the Notes app on the deceased’s iPhonea few days after he died. It was discovered by the deceased’s long-time counsel and a friend who was named executor in the note and was also the beneficiary of a bequest worth $10.3 million. The executor applied to the New South Wales Supreme Court to validate the iPhone note as a will. Unlike Ontario’s Succession Law Reform Act, which does not permit electronic wills to be cured, section 8 of New South Wales’ Succession Act 2006 permits the courts to validate informal electronic wills.
The application was opposed by the deceased’s surviving brother, who stood to inherit the entire $13.6 million estate on intestacy. The question before the court was whether the note reflected the deceased’s final testamentary intention or was merely a preparatory step towards the making of a will.
The Conflict
In the proceedings, the applicant was represented by the deceased’s counsel, who was also named in the note as a beneficiary of the estate. If the court validated the note, the lawyer would receive a bequest worth over $308,000, apart from any professional fees.
Recognizing the lawyer’s financial interest in the note’s validity as a will, Justice Richmond observed that the solicitor’s personal stake compromised his professional independence and integrity, and breached his professional duties under the NSW Conduct Rules. The lawyer was also in a conflict of interest because he was a primary witness in the proceedings, given his friendship with the deceased and the fact that he was in contact with the deceased around the time that the note was created. However, the court expressed greater concern about the fact that counsel stood to benefit directly from the disputed document, quoting other case law where the court held that under such circumstances, a lawyer ought to be restrained from continuing to act.
While Justice Richmond held that it was not appropriate for the court to “express a view on whether [counsel] engaged in professional misconduct,” the court was able to take the conflict into consideration when considering the probative value of the evidence put forward by the applicant, as his counsel had prepared all of the affidavit evidence. While counsel’s evidence was that he was “careful not to suggest anything to the witnesses” about the will, the probative value of the evidence was undermined by the conflict of interest. The executor’s testimony was also tainted by overlap and discussion with counsel, which raised concerns about the independence of their recollections.
Ultimately, the court found that the deceased did not intend the note to operate as his will. Accordingly, the deceased was held to have died intestate, and his brother inherited the estate in full.
The Takeaway for Estate Litigators
In the end, the court’s decision in Peek v Wheatley serves as a reminder that conflicts do more than create ethical risk – they can erode the very probative value of the evidence before the court, thereby undermining the administration of justice.
A simple principle can be extracted from this case – if a lawyer has a direct financial interest in an estate that is the subject of estate litigation, that lawyer should refrain from representing any party in the litigation.
Thank you for reading, and enjoy the rest of your day!
Ian.