LWZ211 - The Case of Suellen's Errand - Law Assignment Help

Assignment Task

Research Assignment

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Assignment Task

In accordance with the requirements of these specifications, write your response in respect of the matters raised by the assignment facts and tasks specified below. Do so in the form of a review and analysis of, including your opinion and guidance on, all issues raised by those facts and tasks.

Take care to craft the report in accordance with the requirements and spirit of the assignment terms of reference specified below.

Assignment Facts

The Case of Suellen's Errand???????

On 15 March 2007, Suellen Morgan (nee Crenshaw) was granted probate of the will of her late mother Harriet Crenshaw who died on 28 December 2006 and had been the widow of Mr Lancelot Crenshaw (Suellen’s father whom everybody called Lance). Suellen was also named in that will as the sole beneficiary of the deceased.

For the process of proving her late mother’s will in the probate application and generally, Suellen had engaged and consulted Eunice Shriver who is the senior partner of the law firm in which you are employed. When they conferred Suellen had told Eunice that her late mother didn’t own anything other than a few personal effects. Eunice had counselled Suellen to be cautious before proceeding on that assumption.

The senior partner explained to Suellen that she should make a diligent search of all her late mother’s records and contacts (for example banks, accountants and similar entities and persons) to make certain that there were not some unknown assets. Pointedly, Eunice remarked that, as sole beneficiary, Suellen was the person who would benefit from any such search if it turned up some assets of which she was not yet aware. Suellen replied that she would not know where to start.

Eunice answered, “Tell me about your family and I’ll come up with some suggestions.” Suellen answered, “I’ve got three brothers; sorry – no – two brothers; one died. Yes, there was George, Richard and Harry. It was George, the eldest, who died. He died in January 2004. Richard was in charge of George’s affairs after his death and he got everything over to George’s kids. They are Katrina and Lindsay – my niece and nephew. They are grown up now.”

Eunice noted this information down. Then she looked up and said, “Thanks. I’ve got that. Now tell me about your parents.” Suellen replied, “Dad, Lance Crenshaw, was a bit of a mystery to us all. He spent such a lot of time away from home that none of us knew him particularly well. He was a freelance mining prospector and was virtually always in the bush doing something along those lines. None of us ever really got any details. From what little I knew, I always had the suspicion that he and Mum had had a bust up, but she never said a word against him. Then again, she never said anything much about him at all.”

Eunice asked, “Is he still alive?” Suellen smiled and said, “No. He died in 1981.” Eunice continued, “Did he leave anything to the family?” Suellen replied, “Just the home unit at Muirhead where he and Mum lived (when he was around). Well, now that I think about it, he didn’t really. The unit actually belonged to George, but Dad and Mum lived there until he died and after that she stayed on there until 1994 when she moved in with me. I’m not too sure what the arrangements were. I was very young then and nobody offered me any information; but I’m assuming that George was pretty generous and provided the home for Mum and Dad because Dad didn’t have a regular source of income. Prospecting is a pretty patchy business.”

Eunice continued writing. Without looking up she asked, “What happened with the unit after your mother moved in with you?” Suellen answered, “George rented it out until December 1996, when he sold it. That’s all I know. He’s dead now so I can’t check with him. Is it important?” Thoughtfully Eunice answered, “Probably not; but look, give me the address of the unit and I’ll get a search done while we’re talking. Just to verify that there wasn’t anything unusual happening there. In the meantime, just to be sure, I’m going to ask you to go home and go through all your mother’s papers – anything you can find – and speak to your remaining brothers.”

Suellen looked at Eunice with a dismissive expression. She said, “Richard and Harry won’t know anything. They never came near their mother.” Eunice responded, “Sure. But they might have some of her old papers or your father’s papers. It can’t do any harm to ask them. Now you just relax for a moment. I’m going to get on the phone and ask the staff to bring you a cup of tea while I get one of my people to go online and do a title search on the unit.” Suellen remained patiently quiet whilst Eunice got through to one of her staff on the telephone.

Soon, a cup of tea was served and as Suellen was taking her first few sips a staff member arrived with a printout of an online title search that she had done. Eunice reviewed the search and then said to Suellen, “Yes. Probably nothing to see here. The unit was purchased in George's name as sole registered proprietor for $25,000 in 1976. In December 1996 he sold it for $290,000. But look, it won’t take much for me to check what happened on his death in 2004. I can get a probate asset search done and tell you about it at our next meeting but maybe I don’t need to. Perhaps you might be able to trace some records yourself. Let’s see.”

Soberly Suellen asked, “Mum’s records? I don’t think there will be any.” Eunice replied, “Any family member’s records may help. Anything that you can lay your hands on. Your Mum, your Dad and George if possible. Whatever you can find.” Suellen said, “But why? What good can it do? It’s just ancient history now isn’t it?” Eunice looked Suellen in the eye and said thoughtfully, “You never know. What about if you find out that your father loaned George the money to buy the unit and he hasn’t paid it back. That’s money that your mother should have received which would flow on to you under her will.” Finishing her tea, in a resigned tone Suellen said, “Alright; OK. I’ll do it.”

After the usual courtesies, Suellen made her way out of Eunice’s office and went home. From there she telephoned her brother Richard and talked her errand over with him. When she told him what she had been asked to look for, he answered, “Sue sweetheart, I have got nothing of Mum’s. You would know that. But when George died in 2004, I was his executor and I’ve still got a box full of all his old letters and junk with some of Dad’s stuff. He was Dad’s executor remember. I don’t think there’s anything important there, but you’re welcome to go through it. Come over tomorrow after work and I’ll give you the box. You can take it home and go through it. Whatever makes you happy. And, do me a favour will you? Ask your solicitor when I can throw it all out.” Suellen replied, “Thanks Ric; but I wouldn’t have a clue what to look for.

Could I take the box to my solicitors and get them to go through it? What do you think?” Her brother replied, “No problem at all.”

One week later Eunice, the senior partner of your firm, called you into her office. Motioning toward a substantial cardboard box, obviously brimming with papers, she said to you, “I want you to go through this bundle of papers for me please.” You answered, “Sure; what am I looking for?” Eunice told you the substance of her conversations with Suellen. After a little thought you said to your supervisor, “So anything with a financial link between the father and the mother, or between the son and the mother, that might flow some benefit through to your client the daughter?” Eunice replied, “Yes, that’s the idea but not just a financial link. Any kind of link! Anything that might give us a basis for tracking some asset benefits through to the daughter. I think you’ve got the idea.” You picked up the box and replied, “Roger that. I’ll start immediately.”

For two weeks, in whatever time you could devote to the job, you went through the contents of the box. As you did so, you segregated out papers that you felt might repay further investigation. At the end of the process you had identified a number of records that you thought might be of interest to your senior partner. These were:

1.A handwritten letter dated 15 March 1976, from Lance Crenshaw to his son George Crenshaw. You knew, from the title search, that date was eight days before settlement of the purchase of the Muirhead home unit. The letter read:

“Dear George, Purchase of the Muirhead unit is to finalise next week. Enclosed is a CTB cheque to you for $18,000 making my contribution $20,500 in total. I am now short $5,000. As discussed per phone, can you put it in for me. I expect to have that money soon from the sale of an option on one of my tenements. Ric gave me $7,500 for a new refrigerator and furniture. I have already phoned our solicitor Mrs Ballard and confirmed that the home unit is to register in your name without caveat of my interests, to avoid death duty. The money in the unit is for Harriet’s needs after I go. She is better off living with one of you at that stage. After she's gone give the remainder of the money to Lily Harding in Alice Springs. You already know her address. Hope all is well, and your wife’s health is improving. Love Dad.”

2. A letter dated 8 April 1976, from the solicitors who acted on the purchase of the unit, addressed to George. Its heading read "Re: Purchase for Lancelot and Harriet Crenshaw [with the address of the Muirhead home unit]”. At the foot of the letter there was a notation that read "c.c. Mr Lance Crenshaw". The first paragraph of the letter read: “We wish to confirm that settlement of this purchase took place in Sydney on 23 March 1976 and that your father took possession of the relevant keys, combinations and other relevant papers on that date.”

3. Attached to the solicitor's letter of 8 April 1976 was a settlement sheet which said that the $20,500 of the purchase money was provided by Lance Crenshaw made up of a deposit of $2,500 and the cheque for $18,000 enclosed with his letter of 15 March 1976.

4. A letter dated 5 May 1976, from the solicitors who acted on the purchase of the unit, addressed to Lancelot Crenshaw (George's father) with the heading "Purchase unit" which enclosed an insurance policy on the Muirhead unit stating that it was sent "as requested".

5. A letter dated 30 June 1976, from the solicitors who acted on the purchase of the unit, addressed to George by which the solicitors sent him the documents of title which were said to be in George's name.

6. A second letter dated 10 October 1978 from Lancelot Crenshaw to George Crenshaw which read:

“I think that you have a need for money to build a new house. You gave me a gift of $5,000 when I bought my home unit in 1976, so if there is a need I can return the $5,000. I have ended the relationship with Lily, and I have already closed my account in the Centralian bank. Over many years, I gave her enough, a home in Alice Springs and $1000 every month. Now she's marrying her boss at work, so she'll be OK without me from here. My son, Roy Grant, is finishing school and wants to do more specialist study. My spirit will rest when you and the family accept him. I cannot expect that from Mum, but can you please take care of his needs. He is very clever. For years I have sent him a minimum of $500 every month to my account at the Westpac bank at Kalgoorlie. Roy has my authority to withdraw any money in that account. Email him on roygrant1982@gmail.com. and show him some friendship. He's your half-brother. My ways have offended and upset Mum. Look after her after I am gone. It is better that she live with one of you than by herself. Use the money from the home unit for her. If there is any left over after she is gone, use it for Roy if he still needs it.”

7. A court order showing that on 12 June 1981 George had been confirmed as executor of the will of Lancelot Crenshaw who died on 10 April 1981. That will named Harriet Crenshaw as sole beneficiary of the entire estate of her late husband.

8. Divorce papers which indicated that George had been divorced in 1984.

9. A copy of an affidavit dated 14 May 1984, sworn by George for his divorce property settlement proceedings. It included these words:

“I do not have any beneficial interest in the Muirhead unit. I am its registered proprietor, but I hold the property on trust for my mother and I do not hold any beneficial interest in the property. It was purchased in 1976 for $25,000 for my father (since deceased) and my mother. My father provided approximately $10,000 of the purchase money, I provided approximately $5,000 and each of my brothers Harry Crenshaw and Richard Crenshaw provided approximately $5,000 each by way of gift to our parents. I believe that the current market value of the unit is to the order of $65,000.”

10. A court order showing that on 2 September 2004 Richard Crenshaw had been confirmed as executor of the will of George Crenshaw who had died on 11 July 2004. Katrina Crenshaw and Lindsay Crenshaw were named in that will as sole beneficiaries, in equal shares, of the entire estate of the deceased.

11. A sealed duplicate of an affidavit sworn on 13 February 2005 by Richard Crenshaw, in his capacity as executor of the will of George Crenshaw deceased, and filed in the probate jurisdiction of the court. The affidavit certified that all of the assets of the deceased, of a total value of $832,000, had been converted to money and equally distributed to Katrina Crenshaw and Lindsay Crenshaw as sole beneficiaries.

At the end of this process you concluded that it was unlikely that you would find any other records which justified consideration. As a result, you sent a message to Ms Shriver and arranged an appointment to see her. In advance of the meeting, you sent her copies of the 11 items that you had identified for consideration. When you arrived, it was evident that she had read and considered those items. She said, “I think you might be on to something. There’s no point in reinventing the wheel. You know more about this area of the court’s jurisdiction than I do; so why don’t I get you to set the running in this matter. I’m asking you to write me a report to enable me to fully advise Suellen Morgan on the lay of the land. Can you do that for me?”

You were very pleased to be offered the opportunity to do some real work instead of the usual donkey work that junior lawyers get stuck with. Thinking to yourself, ‘She’s giving me an opportunity to outline a litigation plan. That means that she might let me handle the case all the way’, you said to your senior partner, “Do you mean like an opinion?” Eunice shook her head from side to side and said, “No; I want you to go a bit further than that. It’s only fair to our client that she be given a full opportunity to make an informed decision as to whether to go to battle on what I think your research might justify.”

Smiling, Eunice handed you her copy of the papers that you had sent her and, said, “No; what I am looking for is more like a report that covers all of the possibilities – the upsides and the downsides – which identifies all the possible issues and the arguments for and against them. Mind you, not just a pure theory. I want something that takes into account practical issues like how we go about proving anything that you may suggest is a possibility.” You looked at your supervisor uncomfortably but bravely said, in a not particularly convincing voice, “Yes Ms Shriver. I’ll get right onto that.” She smiled and said, “I’ll do my bit too. I’ll send you some task points so that you have a better idea of what I’m wanting from you.”

When you came to work on the next morning, there was an email from Ms Shriver waiting for you. It contained the material which follows these facts, under the next heading.

Your Tasks
Write a report for the senior partner’s consideration, in which you:

1. Specify which of the remaining descendants of the late Lance Crenshaw have a stake, or real interest, either as proponent or opponent, in the questions of entitlement to the benefit of the Muirhead home unit, its rental income and or the proceeds of its sale. Explain the reasons for your choices of the potential parties.

2. Separately specify each and all of the possible issues of fact, law, doctrine or principle that might potentially be raised and propounded by each and all of those parties, on the basis of these facts. Without arguing the merits of those issues which you nominate, briefly explain the foundation of your choice of those issues.

3. Of those potential issues, choose the one or more that you consider to be the most meritorious and argue the case for it or them. In so doing, provide a legally supportable explanation of your views citing any authority on which you rely. Where possible, specify and clarify the nature, content and public policy objectives (if any) of the laws, doctrines and principles which you consider to be determinative (or persuasive) in respect of those issues and give your critical observations on them.

4. Similarly, argue the case against the other potential issues, which you do not consider to be meritorious. In so doing, provide a legally supportable explanation of your views citing any authority on which you rely. Where possible, specify and clarify the nature, content and public policy objectives (if any) of the laws, doctrines and principles which you consider to be determinative (or persuasive) in respect of those issues and give your critical observations on them.

Note: In the forgoing Marking Values allocations there is a built in 10% component (of each allocation) attributable to clarity of professional communication, elegance of expression and presentation, conformity to the conventions of referencing, precision of vocabulary, spelling and grammar.

Assignment Terms of Reference
Your report must be crafted on the hypothetical basis of the following assumptions:

Your role in the firm is as a member of a team of lawyers who work together on contentious cases. You have been chosen by the senior partner because you are regarded as the team-member who is most proficient in the field of trusts, and she believes that the trusts aspects of the case are most likely to assist with the client’s inquiries. Your advice is also to be reviewed by all of the other members of the team, who have expertise in other fields, as part of the process of assembling an agreed advice for the client.

For that reason, there no need for you to venture into other fields such as family law, taxation law, corporations law, employment law, consumer law, the laws of contract, property, partnership, crime, tort and similar. To the extent that such matters are relevant, they will be dealt with by other members of the team. The exception to this specification is that you may rely on statutes or rules of law if they are directly or incidentally examined in your study of the trusts unit at Charles Darwin University including the cases referred to in that study.

Also, take into account that the senior partner does not practise in the trusts field (nor do the other team members) and she has specifically instructed you not to assume any background knowledge on her, or their, part and to give definitive authority for any propositions that you assert in case they may wish to verify what you say.

Supporting Authority
Cite only cases and statutes. 

Do not rely on secondary authority. Examples of secondary authority include text books, CDU resource papers, journal articles, websites, advisory notes, handbooks, or any other non-judicial or non-legislative sources. Lawyers must work off real law. The judiciary (and those who seek to persuade the judiciary) work off cases and statutes - not the views of scholars, university lecturers, text writers, commentators and or people who write content for websites.

The only exception to the exclusion of secondary authority is that it is permissible to refer to, or quote, scholarly literature which discusses cases and statutes if doing so clarifies your analysis but do not make the error of relying on that secondary source. If it is the fact that there is no case or statute that is relevant to the point you wish to make, you must say so then give your reasons as to why you might (or might not) contend that the secondary source is persuasive (or otherwise).

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