Tracey Anne Smith, lawyer, overbilled about $60,000 when executing will after client died

Tens of thousands of dollars overbilled from a deceased estate by a Gold Coast lawyer went on living expenses, school fees and even to the ATO, a court has heard.

A GOLD Coast solicitor who overbilled an estate she was managing about $60,000 has escaped spending time in custody.

Tracey Anne Smith used the cash for living expenses, to pay her home loan, school fees and the Australian Taxation Office.

Tracey Anne Smith (right) leaves court with her lawyer Cameron Browne, of Potts Lawyers. Picture: Lea Emery

She pleaded guilty in the Southport Magistrates Court on Thursday to one count of fraud.

Smith, an accredited specialist in succession law, made herself executor and trustee for Lydia Juss in April 2016 when compiling Ms Juss’s will.

When Ms Juss died in April 2017, Smith billed herself more than $64,000 between June-December 2017 to execute the will.

She was only entitled to about $4000 in fees.

Smith, who was admitted as a solicitor under the name Tracey Anne Brewer in 1994, was running her firm Smith Legal Services in Broadbeach at the time she took the money.

She handed in her practising certificate in August 2018 when the fraud was discovered.

It also led to the discovery of other professional misconduct, which resulted this week in Smith being struck off as a solicitor.

Magistrate John McInnes sentenced Smith to three years’ prison to be wholly suspended for three years.

“The offending looked at in isolation is serious because it involves the taking of money that was subject to a trust (account) by a person who has professional obligations,” he said.

“That made that breach of trust particularly serious.”

The money was paid back to the estate by the Queensland Law Society Fidelity Fund.

Defence lawyer Cameron Browne, of Potts Lawyers, said Smith was suffering from mental health issues, including post-traumatic stress disorder, at the time as a result of domestic violence.

Mr Browne said Smith expressed a “significant amount of insight”, which included “shame that extended to self-loathing”.

He told the court that, as a result of the offending, Smith was unable to practice law again and would not be allowed to work in any law firm or legal office.

The court was told Smith was living with her parents and undertaking casual work.

The Queensland Civil and Administrative Tribunal (QCAT) ruled on Monday that Smith be struck off the legal roll in both Queensland and New South Wales.

That means she will not be able to practice law in either state.

In QCAT, the Legal Services Commission brought a total of 12 charges against Smith, including:

* Three charges of dishonestly obtaining a total of $41,360 and attempting dishonestly obtain $3280;

* Six charges relating to estate or power of attorney matters in which she engaged in misconduct, including failing to respond to matters or take appropriate action;

* Three charges relating to receiving money into her general account rather than trust account and transferring money from the trust account without authorisation.

In nine of the charges Smith appointed herself as the executor or power of attorney and then overbilled herself for “work”.

In one case she overbilled by more than 90 per cent.

QCAT member Justice Duncan McMeekin said: “(Smith) has lost her practice, her home, faces criminal charges and bears the shame of losing her previous good name.

“To her credit the respondent has accepted responsibility for her conduct and shown great respect for the disciplinary process.

“Through her solicitor she has apologised to her victims and the profession.”

Justice McMeekin also ordered Smith pay costs related to the QCAT matter.

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Originally published as Tracey Anne Smith, lawyer, overbilled about $60,000 when executing will after client died