Badenach v Calvert: Wills Extent of Solicitors Duty of Care [2016] HCA 18

Wednesday 11 May 2016 @ 11.46 a.m. | Judiciary, Legal Profession & Procedure | Legal Research | Torts, Damages & Civil Liability

In Robert Badenach & Anor v Roger Wayne Calvert [2016] HCA 18, the High Court has today (11 May 2016) unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of Tasmania in Calvert v Badenach [2015] TASFC 8 (24 July 2015).

The High Court has held that a solicitor did not owe a duty of care to a beneficiary under a will to advise the testator of the options available to the testator to avoid exposing his estate to a claim under the Testator's Family Maintenance Act 1912 (Tas) (the TFM Act).

Background

The first appellant (the solicitor) is a legal practitioner and was a partner of the second appellant, a law firm. The solicitor received instructions from Mr Jeffrey Doddridge (the client) for the preparation of his will, by which the entirety of his estate was to pass to the respondent (who was the son of the client's long-term de facto partner). The client's principal assets were two properties which he owned as a tenant in common in equal shares with the respondent. The client died later that year having executed a will drawn up by the solicitor in accordance with his instructions.

Following the client's death, his daughter from a previous marriage (and for whom he made no provision in his will) brought proceedings under the TFM Act and was successful in obtaining a court order that provision be made for her out of the client's estate. As a result, the client's estate was substantially depleted.

The respondent (the former sole beneficiary) brought proceedings against the appellants in which the respondent claimed that the solicitor had been negligent in failing to advise the client of the possibility that his daughter might make a claim under the TFM Act and the options available to him to reduce or extinguish his estate so as to avoid such a claim.

At Trial

At first instance (see Calvert v Badenach [2014] TASSC 61), the Supreme Court of Tasmania held that:

". . . the solicitor owed the client a duty of care to inquire as to the existence of any family members and, upon discovering the existence of the client's daughter, to advise the client of the risk to his estate of a successful claim under the TFM Act."

However, the primary judge was not satisfied that the solicitor's advice about a possible claim under the TFM Act would have triggered an inquiry by the client about how to protect the respondent's position.

Full Court

The Full Court (see Calvert v Badenach [2015] TASFC 8) allowed the respondent's appeal. In their Honours' view, the solicitor's duty to the client extended to advising of the possible steps the client could take so as to avoid exposing his estate to a Testators Family Maintenance claim, even if the client did not make any inquiry about those steps. The Full Court also held that the solicitor owed a duty of care to the respondent that was co-extensive with that owed to the client.

High Court Appeal

The appellants were granted special leave to appeal to the High Court of Australia.

The High Court held that the duty to the respondent recognised by the Full Court did not arise. The interests of the client were not coincident with the interests of the respondent and as such the solicitor could not owe any duty to the respondent that was co-extensive with the solicitor's duty to the client. See para [47]:

The interests of the client and the respondent as parties to the proposed inter vivos transactions are not the same as those of a testator and intended beneficiary with respect to the execution of final testamentary intentions. The advices and warnings which the solicitor would need to give about such transactions would reflect that their interests are not coincident. . . .

See also para [48]:

. . . The solicitor's duty is one protective of the client and his interests alone.

And finally para [49]:

. . . the duty owed by the solicitor to the client . . . is the duty generally understood to be owed by a solicitor solely to his or her client. Hill v Van Erp recognised circumstances in which the duty of care to a third party could and did arise. The circumstances which supported the existence of that duty of care are not present in this case.

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Sources:

Robert Badenach & Anor v Roger Wayne Calvert [2016] HCA 1811 (11 May 2016)

Calvert v Badenach [2015] TASFC 8 (24 July 2015)

Calvert v Badenach [2015] TASFC 8 (24 July 2015)