NEWS

To Whom it May Concern?

In Badenach v Calvert [2016] HCA 16 (“Badenach”), the High Court of Australia confirmed that a Solicitor’s duty to exercise all due care and skill is the “duty generally understood to be owed by a solicitor solely to his or her client.”

Background

In Badenach, a solicitor had drafted a will in accordance with the instructions of his client, leaving his entire estate to his son.

Order for Provision

After the client’s death, the client’s estranged daughter successfully brought proceedings for provision, even though she had had no contact with her deceased father for over 40 years.

 In the Supreme Court of Tasmania

The deceased’s son brought proceedings against the solicitor claiming that the duty owed by the solicitor was to give effect to his late father’s testamentary intentions. The deceased’s son claimed that the solicitor had been negligent in failing to advise the deceased client:

  1. that his estranged daughter might make a claim for provision;
  2. the options available to reduce or avoid such a claim;

That claim was unsuccessful at first instance.

The Full Court of Tasmania

The claim was successful on appeal with the Full Court of Tasmania finding:

(a)   that the solicitor owed a duty to the intended beneficiary in terms identical to that owed to the client;

(b)   that the solicitor had a duty to advise of possible steps the client could take in seeking to avoid the Estate being the subject of a claim for provision.

The High Court of Australia

The solicitor appealed to the High Court, which held that whilst it may have been prudent for the solicitor to have made enquiries, the retainer between the client and solicitor did not give rise to a duty to provide advice about the steps that may be taken to avoid a claim for provision.

“The duty for which the respondent contends cannot be said to be owed to the respondent as an intended beneficiary.”

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