By Abbey Burke -
Snapshot
- A solicitor approached to draft a will does not always owe a duty of care to a prospective beneficiary.
- Such a duty will only arise where the interests of the client and the interests of the prospective beneficiary are aligned.
- An important factor in determining whether there is such a concurrence of interests is whether the testator’s testamentary intentions have been finalised after the client has received all necessary advice from their solicitor.
Since the High Court’s 1997 decision in Hill v Van Erp (1997) 188 CLR 159, solicitors practising in wills and estates have had to live with the uncomfortable possibility that when approached to draft a will they may have professional duties not only to the client sitting in their office, but to a third party – the future beneficiary under the will.
In Hill v Van Erp, a solicitor had followed her client’s instructions to prepare a will that gave part of the client’s property to a friend, Mrs Van Erp. When the will came to be signed and witnessed, the solicitor asked Mrs Van Erp’s husband to be the attesting witness, with the result that the disposition of property to Mrs Van Erp was void. Mrs Van Erp successfully argued that the solicitor had breached a duty of care owed to her as the intended beneficiary.
The disappointed beneficiary in Badenach v Calvert [2016] HCA 18 similarly sought to establish a case for negligence against the testator’s solicitor. However, the High Court overturned a decision of the Full Court of the Tasmanian Supreme Court to find that in the circumstances of the case, the solicitor did not owe the prospective beneficiary a duty of care to advise the testator of the options available to him to avoid exposing his estate to a family provision claim. In doing so, the High Court has clarified the limits of a solicitor’s duty of care to an intended beneficiary under a will. This article considers the reasoning of the courts at first instance and on appeal.
