Family provision & Solicitors duty of care to a beneficiaries

Jeffrey Doddridge went to his solicitor Robert Badenach in March 2009 with instructions to draft a new Will, which was subsequently prepared, and executed on 26 March 2009.

Jeffrey had a brief marriage producing a daughter Patrice; in 1973 when she was about three years of age, her parents separated and soon after divorced. Following the separation Patrice lived with her mother and apart from one chance meeting, had no involvement with her father. He made no provision for her in the Will.

Following the divorce Jeffrey met Jane Calvert; they continued to live together until Jane’s death in 2006. Jeffrey met Jane’s son Roger in 1976 and Jeffrey considered Roger to be his stepson. Roger named his eldest child Jeffrey, and his children referred to Jane and Jeffrey as “nanna and poppy”. Jeffrey left his entire estate to Roger.

Jeffrey’s principal assets were his interests in two properties that he owned with Roger as tenants in common in equal shares. He died aged 78 in September 2009. The net value of his estate is $612,448.69.

Patrice made a family provision claim. Patrice submitted that following her parents’ separation, her father made no attempt to contact her or have a relationship with her. She did not hear from him, or receive any correspondence or telephone calls from him. During Patrice’s childhood, so far as she was aware, Jeffrey paid no maintenance for her. The court ordered that $200,000 be paid to her from Jeffrey’s estate.

Roger took Jeffrey’s solicitor to Court claiming that he had been negligent  arguing that the solicitor and his firm were negligent in that they:

(a) failed to advise the testator of the risk of the daughter making a family provision claim and

(b) failed to advise him of the options available for him to arrange his affairs so as to reduce or extinguish his estate, so as to avoid or partly avoid any claim which could disturb his testamentary wishes.

The Solicitor argued that where a solicitor accepts a retainer to prepare a will, the solicitor owes a duty of care to the client to use reasonable care in the preparation of his or her will. Jeffrey retained the Solicitor specifically to prepare a will giving the whole of his estate to Roger. The Solicitor prepared a will that was effective in law to do just that. For preparing the will the Solicitor charged Jeffrey the sum of $440.

On appeal the High Court overturned the decision of the Tasmanian Court that the solicitor’s duty to the client extended to advising of the possible steps the client could take so as to avoid exposing his estate to a family provision claim, even if the client did not make any enquiry about those steps. Similarly Roger’s interests were not coincident with Jeffrey’s interests and as such the solicitor could not owe any duty to Roger that was co-extensive with the solicitor’s duty to the client.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: