Tracey Carver | Senior Lecturer
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Professor Prue Vines 

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Faculty of Law

The University of New South Wales

UNSW Sydney NSW 2052, Australia 

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Dear Colleagues;

There is interesting decision from the Full Court of the Supreme Court of Tasmania in Calvert v Badenach [2015] TASFC 8 (24 July 2015) http://www.austlii.edu.au/au/cases/tas/TASFC/2015/8.html on the question whether a solicitor advising a testator about a proposed will leaving property to B, owes a duty of care to B which extends to advising the testator about a possible “family provision” (“testator’s family maintenance”) application by another party. Here the (now deceased) testator left half shares in property he owned as tenant in common with B, to B; the will was later successfully challenged by the testator’s daughter, who had received nothing under the will, and the daughter received a $200,000 payment. B claimed that the solicitor ought to have advised the testator to have arranged his affairs before death so that the daughter would not have been able to make such a claim (the most obvious technique would have been to transfer the property into joint tenancies so that it would not have formed part of the estate.)

Over-ruling a trial decision by Blow CJ, the Full Court held that there was a duty of care in the circumstances, and that it had been breached. They did not, however, order the payment of the full amount taken from the estate by the daughter; they all took the view that what B had made out was “loss of a chance” to money, and hence that the matter should be sent back to a trial judge for calculation of the chance. (Taking the view that even if the advice had been given, there were various responses the testator could have made.)

There are a number of interesting features to this case. One that strikes me, however, is this: if, as we know is accepted law, a solicitor owes a duty to the beneficiary under a will he or she is advising on, could it not be argued that he or she might owe a duty to persons in the testator’s family who will be deprived of a legitimate expectation of support by the way the will is framed? Of course it could be said that the solicitor is in no prior relationship with the family member; but it could also be said that he or she is not in any prior relationship with the beneficiary.

Regards

Neil

neil foster