Professional Negligence

Solicitors Owe a Duty of Care to Beneficiaries when Drafting Wills


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Solicitors Owe a Duty of Care to Beneficiaries when Drafting Wills

The recent decision of Calvert v Badenach handed down in the Full Court of the Supreme Court of Tasmania in 2015 highlights the requisite level of care owed by solicitors when drafting wills. It highlights that solicitors ought to be particularly careful when drafting wills which appear at first instance simplistic.

The Facts

The case concerned the preparation of a will by Mr Badenach for Mr Doddridge, who wished to leave his entire estate to Mr Calvert. Mr Doddridge’s property consisted primarily of an interest as tenants in common of two properties with Mr Calvert. While the firm had drafted previous wills as instructed by Mr Doddridge, one of which had contained a small gift for his daughter, the present will was executed by the firm of solicitors and on Mr Doddridge’s instructions contained no mention of Mr Doddridge’s daughter.

Following Mr Doddridge’s death, a claim was lodged by his daughter under the Testators Family Maintenance Act 1912 (‘TFM Act’). Her claim was successful and she was awarded a significant portion of the estate, which resulted in a significant reduction in the net value of the estate which was awarded to Mr Calvert. A dispute then arose between Mr Calvert (the Appellant) and Mr Badenach and his firm of solicitors (the Respondents) on the basis that the Respondents had breached the duty of care owed to him as the sole beneficiary.

The Case at First Instance

The Appellant brought a claim against the Respondents in the Supreme Court of Tasmania for a breach of the duty of care owed to him as the sole beneficiary of the estate on the basis the Respondents failed to give effect to the testator’s wishes. Mr Calvert argued at trial that the Respondents had acted negligently in preparing the will, specifically in their failure to advise the testator of:

  • the possibility and likelihood of Mr Doddridge’s daughter bringing a claim under the TFM Act upon his death; and
  • the options available to Mr Doddridge in order to prevent any claims being made which would interfere with his wishes. Specifically, the applicant referred to the Respondents’ failure to advise Mr Doddridge of the possibility and benefits of creating joint tenancies over the property owned as tenants in common with Mr Calvert.

The Respondents denied that any duty of care was owed to the Appellant, denied any breach if a duty was found and argued that no loss was suffered by the appellant. The Judge in the case at first instance found that a testator’s solicitor could owe a duty of care to a beneficiary. However, his Honour went on to qualify this by expressing that the scope of this duty is dependent upon the client’s retainer. In analysing the scope of Mr Doddridge’s retainer in the present case the Judge noted that the case of Hill v Hill outlines that a solicitor does owe an intended beneficiary under a will a duty to take reasonable care to give effect to the client’s wishes.

His Honour noted that the situation in the applicant’s case was unique and held that while the solicitor had owed a duty of care to the testator to warn of any possible claim under the TFM Act, he was not satisfied on the balance of probabilities that had this duty been discharged the testator would have taken the relevant action to frustrate any potential claims. Therefore on the basis that the applicant could not, on the balance of probabilities, establish causation of loss, the Judge found there was no need to decide whether the solicitor owed the plaintiff a duty to advise the testator as to the risks of any potential claims under the TFM Act or any steps which ought to have been taken to reduce such risks.

The Appeal

In the appeal the appellant (the beneficiary) submitted that the trial judge erred in his findings as he failed to appropriately consider their assertion of the testator’s actions had the Respondents fulfilled their duty and warned the testator of potential claims under the TFM Act.

In coming to their findings the court noted that in executing Mr Doddridge’s prior wills (one of which contained a small gift to his daughter) the firm had knowledge of the existence of his daughter, thus they should have warned him of a potential claim arising under the TFM Act. Additionally, the court noted that the firm held conveyancing files which identified the testator’s properties were held as tenants in common. Thus, the firm contained the requisite knowledge to identify the ability to alter title of the properties to reflect ownership as joint tenants, which would have avoided the claims which subsequently arose and which were adverse to his testamentary wishes.

The Decision

Mr Badenach and the firm of solicitors were found to have breached their duty to the appellant. This was found on the basis that a practitioner has a duty to advise their client of possible claims which may arise in respect of their estate. The court additionally found that practitioners are under a duty to advise a testator of mechanisms which may be employed in order to ensure his or her testamentary intentions are fulfilled. The court did note however that solicitors are under no duty to ensure that such advice is accepted or acted upon. In this case it was held the solicitors should have warned Mr Doddridge that holding the properties as joint tenants as opposed to tenants in common would have better protected his testamentary wishes.

The Effect of the Decision

The case draws attention to the wide-ranging duties owed by solicitors to both testators and beneficiaries when drafting wills. While the scope of the duty will vary dependant on the facts at hand and the solicitors knowledge of the client’s circumstances, the decision emphasises the required level of care which ought to be employed by solicitors when drafting what may appear to be a simplistic will. Further, it highlights the importance of clients making fully informed decisions and stresses that solicitors need to be aware of and advise clients of all available options to ensure their testamentary wishes are fulfilled.

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