The Extent of a Solicitors Duty with a Clients Estate Planning

 
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The High Court of Australia is sitting in Hobart for 3 days from 1 March 2016. During that week it is scheduled to hear the appeal of Badenach v Calvert. This will be the most important decision of the High Court of Australia concerning a solicitor’s duty of care for almost 19 years, since its law making decision of Hill v Van Erp.  Badenach v Calvert involves the duty owed by a solicitor to an intended beneficiary of a will to advise the will maker about issues which will prevent a challenge to the will.

The solicitor involved is Robert Badenach. The will maker was Jeffrey Doddridge. He owned two parcels of real estate as tenants in common in equal shares with Roger Calvert. Doddridge made a will in which he left the whole of his estate to Roger Calvert. He had a close relationship with Roger Calvert and treated him like a son. However Doddridge had a daughter, Patrice. As he made no provision for his daughter, she brought a family provision claim in the Tasmanian Supreme Court against her father’s estate. She obtained an order from that Court in 2011 whereby the estate was required to pay her $200,000.00 plus costs.

The effect of the order was that Roger Calvert did not receive the full ownership of the half interests of Jeffrey Doddridge in the two parcels of real estate which they had owned together. Calvert felt aggrieved and sued the solicitor Robert Badenach alleging that the solicitor was negligent in failing to give advice with a view to the client circumventing the ability of the client’s daughter to bring a family provision claim.

Calvert lost at first instance in the Tasmanian Supreme Court in 2014. However, undeterred, he brought an appeal to the Tasmanian Full Court. That court was constituted by three judges. They each gave three decisions. Each of them were in favour of Calvert but apart from the result of the decision that the solicitor Badenach did owe a duty to the client Jeffrey Doddridge to take instructions and give advice in relation to family provision claims, the reason for the decision is unclear because each of the three judges approached the position differently.

This state of affairs merely adds to the confusion around the duty of the solicitor. Part of the confusion has existed since the original decision of the High Court in Hill v Van Erp. In that case the High Court was constituted by six judges. They gave six different decisions. Five were in favour of the existence of a duty of care by the solicitor, Mrs Hill, to an intended beneficiary, Mrs Van Erp. However they each came to that decision in their own way. That has meant that for the last nineteen years there has been difficulty in understanding precisely when a solicitor owes a duty to an intended beneficiary and the nature and extent of that duty.

At the end of October last year the High Court gave special leave to appeal from the Tasmanian Full Court decision. After that appeal is heard in Hobart in the first week of March the High Court will reserve its decision. It is likely that the court will deliver its decision within three months. It is therefore hoped that by about the end of May there should be some clarification about the extent of the solicitors duty when preparing a client’s will.

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