Kenneth Talbot (“the deceased”) left a Will dated 29 November 2002 (“the 2002 Will”) prepared by a solicitor, William Boyd (Boyd). The deceased, either individually, or through corporate and trust entities he controlled, had hundreds of millions of dollars worth of assets.
Background
The deceased’s circumstances had “materially changed” between the execution of the 2002 Will and mid-2008, with the sale of his business Macarthur Coal for $860million.
In September 2006, Boyd sent an email to the deceased’s assistant indicating that a review of his 2002 will was long overdue. Boyd sent similar emails in September 2005 and November 2007 with the deceased retaining Boyd to prepare a new will in November 2007.
Boyd had drafted instructions reflecting the deceased’s wishes and briefed counsel to provide advice concerning succession planning in October 2008. The deceased’s wife Amanda’s position as a beneficiary under the proposed new will was more beneficial to her than her position under the 2002 will.
In December 2008, although the deceased had indicated that he wanted to complete the new will Boyd informed him that it required more time due to the complexities of the matter. Counsel advised that an interim will be drafted in the meantime. On 1 June 2009, counsel sent Boyd an email attaching a draft of the new will.
On 19 June 2010, a plane crashed in a remote region of the Republic of Congo the deceased was listed on the passenger log; there were no survivors. The deceased was survived by his spouse (Amanda) and their two infant children (Alexandra and Claudia) and by two adult children from a former marriage (Liam and Courtney). Although Boyd and the deceased had continued to discuss updating the will neither a new will nor an interim will was executed before the deceased’s unexpected death.
At the time of his death, the deceased was resident in Queensland. He owned real property and other assets in Queensland. His overseas assets included real estate in Paris, Shanghai and Lake Como in Italy.
Removal of executor
The 2002 Will appointed Paul Bret, a Texas-based businessman as executor who had realised almost $300 million worth of estate assets, between commencing the executorship and when the executor agreed to retire, (in exchange for the payment of $10 million) in June 2012. The retirement had been actively sought by all the beneficiaries who were dissatisfied with his conduct. On 27 June 2012, Boyd was appointed administrator of the deceased’s estate.
Between 2010 and 2012, Amanda retained Melbourne-based law firm Arnold Bloch Leibler (ABL) to help manage the deceased’s estate.
The matter
Amanda became dissatisfied with Boyd’s conduct as administrator in about 2015 and commenced actions in negligence against Boyd concerning the deceased’s will and the administration of his estate, and ABL for failure to advise of possible claims against Boyd over the preparation of the 2002 will
Additionally, Amanda claimed that had Boyd created a new will in 2007 she would be in a better position financially. Submitting that if ABL had advised her to oppose Boyd as administrator and trustee in 2012 she wouldn’t
“have been exposed to the expenses and losses associated with the incompetence of Mr Boyd’s administration of the estate,”
The decision
In an extensive judgment, the Supreme Court of Queensland dismissed the claim finding that following execution of the 2002 Will, Boyd did not breach any duty and did not act contrary to the standards of a reasonably competent solicitor in failing to prepare a further Will. Similarly, ABL did not breach its duty of care in the provision of advice pursuant to its retainer with Amanda.
It is worth noting that the Court held that the deceased was
“An intensely private man in life, his express wish in death was that his Will remain confidential and that his estate be administered with the upmost privacy…This proceeding, which concerns his last testamentary wishes and the administration of his estate, leaves that express wish in tatters.”
Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC 8 at 2