This eagerly anticipated judgement was handed down this morning by the High Court. It concerned the scope of a solicitor’s duty to a beneficiary, when preparing a will for a testator.
The solicitor drafted the deceased’s will, which left everything to the sole beneficiary. The estate was not large and was substantially depleted by the success of a family provision claim brought by the deceased’s daughter.
The respondent alleged that the solicitor owed a duty to the respondent as the intended beneficiary of the deceased’s estate to advise the testator that he could avoid exposing his estate to such a claim by converting his interests in real property to joint tenancies, or by making inter vivos gifts.
The Tasmanian Full Court held that a solicitor’s duty extended to, not only enquiring whether the deceased had any children and to advise of the potential for a family provision claim, but also to advise of the possible steps the deceased could consider taking in order to avoid the impact of a further provision claim, even if the deceased did not make any enquiry about these steps.
The High Court allowed the appeal. In the particular factual circumstances it was held that the duty did not extend to the intended beneficiary. Further, it was held that even if such duty existed, the respondent could not establish that such breach of duty caused his loss, because the respondent could not establish what the deceased would have done had the solicitor given him that further advice.