The High Court recently handed down a much anticipated decision in the matter of Robert Badenach & Anor v Roger Wayne Calvert  HCA 18 allowing an appeal from the decision of the Full Court of the Supreme Court of Tasmania. The Court held that a Solicitor acting for the will maker did not owe a duty of care to a beneficiary under the will, to advise the will maker of the options available to the will maker, to avoid Family maintenance claims.
A solicitor prepared a will for Mr Jeffrey Doddridge which left his entire estate to his defacto partner’s son, Mr Roger Calvert (the respondent). Mr Doddridge’s principal assets were 2 properties which he owned with the respondent as tenants in common. Mr Doddridge died leaving the fully executed will per his instructions. Mr Doddridge had a daughter to a previous marriage whom he had not been in contact with for over forty years.. Following Mr Doddridge’s death, his daughter brought a claim under the Testator’s Family Maintenance Act of Tasmania (TFM Act) and successfully obtained an order for a provision to be made for her from Mr Doddridge’s estate. The respondent brought proceedings against the solicitor after his share in the estate had substantially depleted.
Did the solicitor have a duty to advise Mr Doddridge of the possibility of his daughter making a claim under the TFM Act and to further advise what options were available to him to reduce or extinguish the estate to avoid the consequences of such a claim? The respondent alleged that the solicitor did have such a duty and the failure amounted to negligence.
Trial decision of the Supreme Court of Tasmania
The Supreme Court of Tasmania held that solicitor owed a duty to enquire into the existence of any family members, like his daughter, and the risk posed to his estate if they were to lodge a claim under the TFM Act. The primary judge however was not satisfied of a duty owed by the solicitor to advise the client of possible steps he should take to protect the respondent from such an adverse claim.
Decision of the Full Court of the Supreme Court of Tasmania
Members of the Full Court agreed that the solicitor did owe a duty to make inquiries as to the existence of any family members not included in the will and if there were; to inform the client of the potential risk that a successful claim under the TFM Act may have to his estate. Their Honours furthered the Supreme Court’s decision and held that the solicitor also had a duty to advise the client of the possible steps he could take avoid such a risk occurring regardless of the client making such an enquiry. The Court reasoned that the ‘duty owed by the solicitor to the respondent as the intended beneficiary cannot be less than that owed to the client under the terms of his retainer, or in tort.’ Therefore the duty owed to the respondent existed co-extensively to the duty owed to Mr Doddridge in executing the will.
Decision of the High Court
The High Court overturned the decision of the Full Court and held that the solicitor did not owe a co-extensive duty to the respondent to advise the client on steps that he could take to protect the interests of his intended beneficiary.
Scope of the duty owed to a testator
The Court discussed the decision of Hill v Van Erp (1997) 188 CLR 159 where the Court acknowledged a duty owed by the solicitors to make inquiries relating to other family members as was provided for in the retainer. However the Court distinguished this decision from the current circumstance as the original retainer did not extend to such an inquiry.
Their Honours further rejected the respondent’s submission that the solicitor should have advised the client on how to protect his interests. This was because there was no reason to suggest the likelihood of the client’s daughter making a claim nor was there evidence that the client would have wanted to defeat such a possible claim. As such the respondent could not establish the causation requirements of proving that but for the solicitor’s failure to give such advice the respondent would have received the client’s estate.
A solicitor’s duty of care in preparing a will is limited to (apart from the will maker) a person whom the will maker actually intends to benefit from the will and is confined to requiring the solicitor to take reasonable care to benefit that person in the manner and to the extent identified in the instructions received from the will maker. The duty does not extend to protecting the future contingent interests of possible beneficiaries. If such a duty existed, it would interfere with a solicitor’s duty to follow a client’s instructions and execute a will which reflected a client’s true intentions.
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