By Darryl Browne -
Key decisions
- Badenach v Calvert [2016] HCA 18
- Edwards v State Trustees Limited [2016] VSCA 28
- Estate of Raul Novosadek [2016] NSWSC 554
- Re X [2016] NSWSC 275
- G v G [2016] NSWSC 511
- The Estate of the Late Akos Balazs Melegh [2016] NSWSC 249
- D15-16\082 [2016] SCTA 189
- Life v Hall [2016] NSWSC 316
- Hockey v Hockey and Hockey as executors of the estate of Hockey [2016] NSWSC 426
- TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68
Clarification on scope of a solicitor’s duty to an intended beneficiary under a will
In Badenach v Calvert [2016] HCA 18 the High Court clarified the scope of a solicitor’s duty to an intended beneficiary, identified in Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9. The solicitor’s duty is to exercise care and skill in giving effect to the client’s testamentary intentions. The majority of the court noted that it was not disputed in the present proceedings that the solicitor, Badenach, would have been obliged to advise the client that it was possible that a family provision claim might be brought by an eligible person against the client’s estate. The majority concluded that the solicitor would then need to identify the options which would appear to be available to the client, ranging from endeavouring to thwart any claim to doing nothing. Subject to the terms of the retainer, the solicitor was not required to advise the client about how to avoid a family provision claim by making inter vivos transactions with property interests. In any event, those duties were not owed to the intended beneficiary, Calvert. And, even if they were, the majority decided that Calvert had not shown that he would not have suffered loss but for the solicitor not giving the advice.
