In New South Wales, property held solely or as tenants in common by the deceased forms part of the estate and is distributed according to the Will. In contrast, property held as joint tenants passes automatically to the surviving owner on death and does not form part of the estate for testamentary disposition.
Survivorship
Under the rule of survivorship, a joint tenant’s interest passes automatically to the surviving joint tenant on death, irrespective of the deceased’s Will. This principle commonly applies to jointly owned real property.
The Transfer of estate property generally occurs in two stages:
The legal personal representative (executor or administrator) commences the process by lodging a Transmission Application with NSW Land Registry Services to have the property registered in their name.
After registration, the legal personal representative may sell the property or transfer it to beneficiaries in accordance with the Will. If there is no Will, distribution is governed by intestacy rules.
Transfers to legal personal representatives and beneficiaries usually incur concessional or nominal transfer duty, assessed by Revenue NSW. The legal personal representative lodges Transmission Applications soon after a grant of probate or letters of administration—ideally within one to two weeks—to avoid delays. PEXA provides that the transfer duty is paid before final registration. Early engagement with Revenue NSW helps prevent registration issues.
Joint Tenancy
Property held as joint tenants does not become part of the estate. The survivor acquires ownership by lodging a Notice of Death, which is exempt from transfer duty. Prudent Practitioners submitting this notice within one to two weeks of receiving the death certificate to keep records current and avoid future issues. To lodge a Notice of Death, the surviving joint tenant completes the prescribed form, attaching a certified copy of the death certificate, and providing evidence of identity. The original Certificate of Title or electronic title, access, and payment of the relevant fee are also required. Registration records the surviving joint tenant as the sole owner. Ensure the provision of all supporting documents to avoid processing delays or rejection by NSW Land Registry Services.
Lofts v Lawcover Insurance Pty Limited [2026] NSWDC 68
Mr Lofts (the deceased) and Ms Miller, who had been de facto partners since 1994 and each had children from previous relationships, made wills in July 2016 through Atkinson Vinden Lawyers (AVL). The deceased’s only child, the plaintiff, brought a claim after the death of the deceased, alleging a loss resulting from the handling of the estate.
The couple, residing in Forster, held their home as joint tenants, meaning the property would pass directly to the survivor under the rule of survivorship, regardless of the Will.
The Wills prepared by AVL gave the surviving partner a life interest in the home, with any remaining interest passing to the survivor’s children if the survivor died or remarried. However, joint tenancy meant these provisions would not take effect for the first to die.
When the deceased died in January 2023, his share in the property passed automatically to Ms Miller by survivorship, so nothing from the home was included in his estate. The plaintiff had expected to inherit a half-share but did not receive one because of the property’s ownership structure.
After AVL went into liquidation in December 2023, the plaintiff made a claim against Lawcover Insurance Pty Limited under the Civil Liability (Third Party Claims Against Insurers) Act 2017, alleging that AVL’s estate planning advice led to this loss.
The plaintiff alleges the following:
- AVL owed and breached contractual and common law duties to the deceased and, by extension, to the plaintiff, by failing to exercise reasonable care and skill in providing legal services.
- AVL was retained to provide estate planning advice to the deceased and Ms Miller, including suggesting options and preparing documents.
In breach of those duties, AVL:
- did not advise that holding the Forster property as joint tenants would keep it outside the first decedent’s estate, making the intended testamentary remainder ineffective.
- failed to advise that the deceased and Ms Miller could sever the joint tenancy without affecting the Will provisions.
This omission meant they did not sever the joint tenancy. Andronos SC DCJ held that, if properly advised, they could have acted to ensure the Will was carried out and fulfilled the deceased’s testamentary intentions.
The plaintiff claimed damages equal to the lost value of the remainder in half the property that would have passed if the Will had operated as intended.
The Court found for the plaintiff and awarded $510,000 in damages. Andronos SC DCJ did not award Pre-judgment interest. The parties were required to address costs before the final judgment.
Background
In 2016, the deceased and Ms Miller had updated their Wills through AVL but kept the Forster property as joint tenants. The revised Wills gave the survivor a life interest and, if the survivor died or remarried, the remainder to each testator’s children from prior relationships.
Property held as joint tenants passes to the surviving owner on the death of one joint tenant, regardless of the Will. The solicitors did not advise the deceased and Ms Miller about this or the severance process. Confirmation of ownership structures, explanation of the implications of joint tenancy, and advice on severance options and the statutory steps if a share is intended to pass by Will are the actions of a competent practitioner.
Looking at statutory requirements, under section 97 of the Real Property Act 1900 (NSW), severance of a joint tenancy is effected by lodging a Transfer Severing Joint Tenancy or a Transfer Altering Tenancy with NSW Land Registry Services (LRS). The statutory steps practitioners follow for severance include:
- Obtain the Certificate of Title (paper or electronic) and ensure identity verification of the parties involved.
- Complete the appropriate form (typically Transfer Form 01T or the prescribed electronic equivalent), clearly specifying the type of severance (unilateral or by agreement).
- Attach any supporting documents required, such as client identification, statutory declarations (if applicable), and a certified copy of the Certificate of Title.
- Lodge the form with LRS and pay the prescribed filing fee.
- Upon registration, ownership changes from joint tenancy to tenancy in common (usual).
These steps are straightforward but require precise execution to ensure the testator’s testamentary intentions are implemented.
Preventing similar issues in practice requires implementing risk management protocols to avoid oversights. Recommended measures include routine use of internal checklists, regular peer review of estate planning matters involving jointly owned property, and ongoing training in estate and conveyancing law. Integrating these practices into daily procedures helps practitioners identify and address issues related to joint tenancy and its consequences, supporting risk reduction and high-quality client advice.
Severing a Joint Tenancy
Building on the above, the statutory process for severing a joint tenancy in New South Wales involves the following steps; Upon the death of a joint tenant, the doctrine of survivorship operates automatically so that the deceased’s interest does not pass under their Will or on intestacy, but instead accrues to the surviving joint tenant or tenants by operation of law and is contingent upon the joint tenancy remaining unsevered at the time of death.
In practice, the surviving joint tenant lodges a Notice of Death with NSW Land Registry Services, supported by a certified copy of the death certificate. The Registrar-General will then record the death on the folio of the Register and remove the deceased’s name, leaving the surviving joint tenant(s) as the registered proprietor(s). No grant of probate or letters of administration is required in respect of the land itself.
However, it is critical to verify that no severance (whether legal or equitable) occurred before death, as this would defeat the right of survivorship and cause the deceased’s interest to fall into their estate. A competent practitioner also considers any competing equitable claims or contributions affecting the beneficial ownership, notwithstanding the registered title.
Importantly, upon registration, the property is held as tenants in common in equal shares unless specified otherwise.
A competent practitioner advises clients that the severance process is straightforward and can be completed at any time before death. Registration is generally processed within several business days, depending on the Registry workload. Where the testator intends their share to pass by Will, severance of the Joint Title is completed before finalising the Will.
As in all matters, a practitioner documents all discussions and advice concerning joint tenancy and severance in the client file:
“Discussed with clients the effect of joint tenancy: property passes automatically to the survivor, overriding Will. Advised on severance to allow the client’s share to pass under the Will. Outlined the severance process via registration at LRS and addressed client queries. Clients elected [to proceed/to retain joint tenancy] on [date].”
Clear written advice and confirmation of the client’s decision provide evidence that the legal practitioner explained the legal risks and, following the client’s instructions, took appropriate steps.
For further support, practitioners can incorporate the following template language and checklist items into client communications and file notes. Please note that these templates and checklists are designed for New South Wales and may require adaptation to suit the requirements or terminology of other jurisdictions. Practitioners working across state or national boundaries should confirm applicable local laws and procedures before use. For example, other Australian states may have different forms, registration processes, or variations in terminology, such as in the relevant land registry, duties legislation, or court procedures. Internationally, requirements and the treatment of joint tenancy and testamentary dispositions may differ even more significantly. When adapting these materials, practitioners should refer to the specific legislative framework and practice directions of the relevant jurisdiction, and tailor language, checklists, and document references accordingly.
Sample advice letter template:
“Dear [Client],
As discussed, your property at [address] is now held as joint tenants. This means that after one owner dies, the property automatically passes to the survivor, even if your Will says otherwise. If you wish your share to pass according to your Will, you must consider severing the joint tenancy. Severance can be effected by [describe the method, e.g., registration at the Land Registry].
Please let us know your decision so we can take the necessary steps.”
Checklist for practitioners:
– Confirm ownership structure on title for all real property (joint tenancy vs tenancy in common)
– Advise clients on the consequences of joint tenancy and Wills
– Discuss severance options and outline steps, including costs
– Record advice and the client’s instructions in writing
– Get written confirmation from the client about their decision (to sever or keep joint tenancy)
– Complete and file necessary documents if the client chooses severance
– Review the provisions to check for consistency
In summary, the use of template guidance and practical checklists helps practitioners ensure all relevant steps and communications are addressed and documented.
The deceased died in January 2023. The plaintiff, Alexander Lofts, had been advised that he would inherit a half-interest in the Forster property, but in 2024 learned he would receive no interest.
AVL was in liquidation by this time. In 2024, the plaintiff commenced proceedings against Lawcover, the firm’s professional indemnity insurer, under the Civil Liability (Third Party Claims Against Insurers) Act 2017.
The Court found that the solicitors owed a duty of care to the plaintiff as an intended beneficiary and breached that duty by failing to advise on severance of the joint tenancy. The defendant argued that the plaintiff had not established that the deceased would have proceeded with severance. Still, the Court rejected this, finding that the loss was the deprivation of a specific benefit rather than a mere loss of chance. On the balance of probabilities, the Court concluded that the deceased would have instructed the solicitors to sever the joint tenancy.
Duty of care
In Hill v Van Erp (1997) 188 CLR 159 (Van Erp), Brennan CJ stated (at 167-8):
Most testators seek the assistance of a solicitor to make their intentions effective. The very purpose of a testator’s retaining of a solicitor is to ensure that the testator’s instructions to make a testamentary gift to a beneficiary results in the beneficiary’s taking that gift on the death of the testator. There is no reason to refrain from imposing on a solicitor who is contractually bound to the testator to perform with reasonable care the work for which he has been retained a duty of care in tort to those who may foreseeably be damaged by carelessness in performing the work. The terms of the retainer determine the work to be done by the solicitor and the scope of the duty in tort as well as in contract. A breach of the retainer by failing to use reasonable care in carrying the client’s instructions into effect is also a breach of the solicitor’s duty to an intended beneficiary who thereby suffers foreseeable loss. If the solicitor’s carelessness results in the loss of a testamentary gift intended to be given to a beneficiary, “it is eminently fair, just and reasonable that the solicitor should be liable in damages to the intended beneficiary”, as Sir Donald Nicholls V-C said in White v Jones[18]. Not only is the remedy of damages effective to compensate the beneficiary; it is necessary to enforce the duty owed to the client. “Otherwise”, as the Vice-Chancellor said, “there is no sanction in respect of the solicitor’s breach in his professional duty.”
The facts in Van Erp concerned negligence in the witnessing of a Will.
Badenach v Calvert (2016) 257 CLR 440 (Badenach) concerned a solicitor’s failure to advise his client (the testator) about the potential for a daughter from a previous relationship to make a statutory family provision claim on the estate. The plaintiff, the son of the testator’s long-term de facto partner, was the only beneficiary named in the Will. The solicitor was unaware of the daughter’s existence, but could have easily inquired to find out. Initially, Blow CJ in Calvert v Badenach [2014] TASSC 61; 11 ASTLR 536 accepted that an experienced solicitor owed the client a duty of care to ask about family and warn if the client had a daughter, who might claim against the estate. However, Mr Calvert did not convince his Honour that such a conversation would have led the client to seek ways to protect his estate. Therefore, he found no duty to advise on avoiding family claims.
In Calvert v Badenach [2015] TASFC 8, the Full Court held that the solicitor breached his duty by failing to warn and advise the client on how to prevent such claims, thereby also breaching his duty to Mr Calvert. The solicitor and firm appealed to the High Court, which unanimously ruled he did not owe such a duty. The Court distinguished Hill v Van Erp, noting that in that case, the interests of the client and beneficiary aligned, unlike here. The solicitor’s duty was only to advise about the possibility of a claim, not to volunteer strategies to avoid it, since the client’s intentions were not final and could have varied. In Badenach v Calvert [2016] HCA 18; 257 CLR 440, the High Court found no duty to advise on avoiding claims or on the breach that caused the loss. The plurality (French CJ, Kiefel and Keane JJ) discussed different judgments in Van Erp, noting distinctions, and stated in paragraph [18]:
It must be conceded, as the appellants point out in the present proceedings, that the approaches taken by members of the majority to the question of whether a duty existed differed in some respects. Nevertheless it may be seen from most of the judgments that the duty found to be owed by the solicitor to Mrs Van Erp as the intended beneficiary had its source in the solicitor’s obligations arising from the retainer between the solicitor and her client[24]. The solicitor was obliged to exercise care and skill in giving effect to her client’s testamentary intentions. The interests of the testatrix and the intended beneficiary in those intentions being carried into effect were relevantly the same. Recognising a duty to the intended beneficiary would not involve any conflict with the duties owed by the solicitor to her client, the testatrix.
In the same case, relevant to the differential scope of the duty owed to the client and to the beneficiary, Gageler J (as his Honour then was) stated:
“[57] Subject to statutory or contractual exclusion, modification or expansion, the duty of care which a solicitor owes to a client is a comprehensive duty which arises in contract by force of the retainer and in tort by virtue of entering into the performance of the retainer. The duty is to exercise that degree of care and skill to be expected of a member of the profession having expertise appropriate to the undertaking of the function specified in the retainer. Performance of that duty might well require the solicitor not only to undertake the precise function specified in the retainer but to provide the client with advice on appurtenant legal risks. …
[58] The duty of care which a solicitor who is retained to prepare a Will owes to a person whom the testator intends to be a beneficiary is more narrowly sourced and more narrowly confined. The duty arises solely in tort by virtue of a specific action that is required of the solicitor in performing the retainer. …
The solicitor’s duty of care is limited to persons the testator intends to benefit, requiring reasonable care to give effect to those instructions. These instructions define the intended benefit and the scope of the solicitor’s duty, which aligns with the duty to the client, as interests necessarily coincide. In Badenach, the Court found the solicitor’s duty did not extend to advising the testator on steps to avoid estate claims, as those involved transactions before the Will’s creation, not the testator or beneficiary directly. Here, the retainer, recorded in AVL’s letter of 18 May 2016, was to update the wills for the deceased and Ms Miller due to changed circumstances. The plaintiff was identified as a beneficiary in the deceased’s instructions and in the Will. The solicitor’s duty to the plaintiff was limited to ensuring the proper implementation of the deceased’s testamentary intention, based on the contractual duties owed to the deceased. The plaintiff was vulnerable to carelessness, with no protection against it, risking loss of the benefits intended by the deceased.
Causation
Since causation is part of the plaintiff’s cause of action, he must prove causation under section 5D(1) of the Act. Section 5D(1)(a) states that the plaintiff must demonstrate factual causation, meaning the negligence was a necessary factor in causing the harm. Section 5D(1)(b) requires that it is appropriate for liability to cover the harm caused. The plaintiff always has the burden of proving, on the balance of probabilities, any fact related to causation: section 5E.
The key principles for determining factual causation are well-established and compiled by McColl JA in Lucantonio v Sticher [2014] NSWCA 5 at [79]-[82]:
“In order to establish that any breach of duty on the respondent’s part caused the appellant harm, the appellant had to establish that that negligence was a necessary condition of the occurrence of that harm, an exercise the Act labels “factual causation”: s 5D(1)(a), Civil Liability Act 2002. That required the appellant establishing that the respondent’s negligence was a condition that must be present for the occurrence of the harm: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 (at [18], [20]) per French CJ, Gummow, Crennan and Bell JJ; (at [44]) per Heydon J.
Such determination “is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E” (Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648 (at [14])) and is approached by applying common sense to those facts: Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 (at [43]; [56]) per French CJ, Hayne and Kiefel JJ. It “involves nothing more or less than the application of a ‘but for’ test of causation”: Wallace v Kam (at [16]); Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48; (2009) 239 CLR 420 (at [45], [55]). “Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred”: Strong v Woolworths Ltd (at [32]) per French CJ, Gummow, Crennan and Bell JJ.
The inquiry into causation is retrospective, seeking to identify what happened and why: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [124]) per Hayne J; Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 (at [28]) per Basten JA (Davies J agreeing). It focuses on the particular conduct or omission which is found to constitute the defendant’s breach of duty: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 (at 419) per Phillips JA (Ormiston JA generally agreeing).
The question whether the appellant would have completed the purchase for the contract price had the respondent provided timely advice on or about 17 January 2002 has to be determined subjectively in light of all the relevant circumstances: s 5D(3)(a), Civil Liability Act; Wallace v Kam (at [17]).
A key principle of the common law is that liability in negligence typically only covers harm that was a foreseeable result of the negligent party’s failure to exercise reasonable care and skill. The liability for breaching the duty to prevent foreseeable harm does not extend beyond the harm that was foreseeable at the time of the breach. Similarly, when someone has a duty to provide information that another person relies on to make a decision, negligence in providing incorrect information generally only makes the provider responsible for the consequences of that misinformation, not for all subsequent outcomes. In South Australia Asset Management Corporation v York Montague Ltd [1997] UKHL 10 (“SAAMCO”), the House of Lords placed important restrictions on the losses claimed against a professional who supplies inaccurate information, with those losses limited by the scope of the duty owed. The analogy provided by Hoffman LJ, a mountaineer, is that of a doctor advising that their knee is fit for a challenging climb. If they then climb and get injured in an avalanche—an injury they would likely have avoided with proper advice—the injury is… ‘foreseeable consequence of mountaineering but has nothing to do with his knee’.”
In R Lawyers v Mr Daily [2025] HCA 41; (2025) 99 ALJR 1504, Ms Daily filed a claim against R Lawyers, the solicitors who represented the plaintiff, concerning a purported binding financial agreement with his prospective spouse, under s 90DA of the Family Law Act 1975 (Cth). The procedural history of R Lawyers was complex. Primarily a limitations case, but issues of causation and loss were also relevant.
The solicitors were initially found negligent for failing to advise on how the birth of a child might affect the agreement and on the general risks involved. The plaintiff’s claim against the solicitors had two parts.
First, he sought and recovered wasted legal costs, with no appeal on the negligence or costs issues.
Second, the plaintiff alleged that the solicitors’ failure to draft an agreement protecting his interests after the birth of a child caused him loss.
Arguing that this loss was a reduced chance to negotiate a binding, enforceable financial agreement that would not be invalid under the Family Law Act and would be effective upon separation. The intermediate appellate Court viewed this as a “loss of chance” claim—an opportunity to negotiate a better agreement that accounted for the birth of children. The plaintiff rejected this characterisation, asserting that he was seeking compensation for the actual diminution of his interest.
The High Court clarified the difference between a loss of an actual benefit—one the plaintiff would have obtained anyway—and a loss of a chance or opportunity to achieve a better outcome. For the former, the plaintiff must prove, on the balance of probabilities, that they would have entered into a more favourable agreement, the deceased would not have invalidated the document, and that it would have yielded a better result. For the latter, he must establish, on the balance of probabilities, that negligence caused him to lose the chance of a better outcome and that this chance was substantial or valuable. Only if a significant and valuable chance is proven can the loss be assessed based on the likelihood that the chance would have succeeded (see [146]-[149] per Gordon and Edelman JJ). As the plaintiff failed to prove loss under either scenario, his second component claim against the solicitors ultimately failed.
Breach of duty
Since these proceedings are based on negligence, section 5B of the Civil Liability Act 2002 (NSW) applies. This section states that a person is not negligent for failing to take precautions against a foreseeable, nontrivial risk that a reasonable person in their position would have taken. Factors to consider when assessing whether a reasonable person would have taken precautions include the likelihood of harm if the solicitor did not take care, the potential seriousness of the harm, the burden of taking precautions, and the social utility of the activity that poses the risk.
There have been several cases where the failure to advise or take steps to sever a joint tenancy has led to claims for breach of duty. In Badenach, Gageler J stated in obiter (at [61]):
“[61] Taking reasonable care in carrying the testator’s instructions into effect might on occasions require a solicitor retained to prepare a Will to do more than merely draft and ensure the proper execution of that will. An example is where taking steps to sever a joint tenancy is integral to carrying into effect a testator’s intention that specified property be given by the will such that the taking of those steps can properly be seen to form part of the will-making process.”
The case law does not extend the duty to include taking steps or giving advice in all cases to ensure that the estate’s assets can effectively carry out the testamentary intent. Accordingly, in Badenach, the Court held that failing to advise on the steps that a Will maker could take during their lifetime to defeat a statutory claim for provision did not breach the common law duty to the beneficiary. In summary, the duty to advise on severance or similar steps arises where the testator’s instructions or circumstances make it necessary to take such actions to properly implement their testamentary intentions, particularly where there is an intention that a specific property or interest is to pass by Will, and the ownership structure may prevent this.
In blended family situations, complexities often arise from multiple sets of children, stepchildren, or competing interests. Practitioners should be especially alert in these contexts: communication about beneficiaries’ expectations may be more ambiguous; instructions could reflect conditional or shifting intentions; and parties may not appreciate the legal ramifications of ownership structures such as joint tenancy. The duty to advise can arise not only when the testator expressly instructs that a particular property is to pass to specific beneficiaries, but also where the practitioner, on reasonable diligence, could discern this intention from discussions or the context of the family relationships.
Failure to clarify or explore testamentary objectives in such settings, and to advise on the need for severance or other steps where appropriate, is more likely to result in unmet expectations and expose practitioners to claims. Accordingly, thorough fact-finding and clear documentation are critical in complex or blended family contexts to ensure the practitioner’s advice meets the needs of all parties and reduces future risk. For matters involving blended or complex family structures, it is also recommended that firms implement routine peer reviews or internal protocol checks before finalising key estate-planning advice. These practices help proactively manage risk, identify potential gaps, and ensure thoroughness in both the advice given and the documentation maintained.
Sample file note for blended family discussions:
“Discussed with clients their family arrangements, including children and stepchildren from prior relationships. Outlined the implications of joint tenancy for testamentary dispositions and clarified how the property would pass on death under current ownership—advised clients on the possibility and steps for severance of joint tenancy if their intention is for their respective shares to pass according to their Wills rather than to the surviving partner. Confirmed clients’ wishes regarding asset distribution and explained the practical impact of various ownership structures. Clients provided the following instructions: [summarise key client decisions and reasons]. Client queries regarding fairness and clarity for all beneficiaries were addressed. Advised on the need for clear documentation to reduce the risk of future disputes, especially given the blended nature of the family.”
Using a file note such as this helps practitioners document advice and client intentions clearly, providing an important record for future reference and reducing the potential for misunderstanding or conflict.
Sample Blended Family Estate Planning Checklist (Practitioner Use Only):
- – Identify all family members, including biological children, stepchildren, and former spouses/partners.
- – Obtain full details of all prior relationships and any continuing legal or financial responsibilities (such as child support or property settlements).
– Clarify the client’s objectives for each beneficiary, including any specific gifts, life interests, or conditional bequests.
– Confirm the legal ownership structure of all key assets (joint tenancy, tenancy in common, sole ownership, trust assets, company shares).
– Assess risks of potential claims or disputes, particularly by omitted or disadvantaged family members.
– Explain the consequences of current ownership structures for testamentary intentions, including the effect of joint tenancy versus tenancy in common.
– Discuss and advise on any need for severance of joint tenancy, and obtain clear instructions.
– Explore whether mutual wills, life interests, protective trusts, or other mechanisms are needed to balance competing interests.
– Discuss the possibility and implications of family provision claims.
– Document all key discussions and record the client’s instructions and reasons for decisions made.
– Where appropriate, obtain written confirmation from the client acknowledging advice about potential risks and options.
– Arrange for regular peer review or second opinion for complex blended family matters before finalising advice.
A checklist tailored to blended families supports a thorough approach and helps practitioners anticipate and address the unique risks and sensitivities involved.
Similarly, in Vagg v McPhee [2013] NSWCA 29, a solicitor failed to advise the testatrix that they could sever a joint tenancy unilaterally under the Real Property Act 1900 (NSW) (“RPA”). Instead, the solicitor drafted a Will in which the testatrix requested the sale of her jointly owned house with her husband, and the distribution of proceeds to her children for their education. The Court of Appeal (Basten JA, Ward JA and Tobias AJA) found that because the testatrix had not communicated an unconditional testamentary intention to dispose of only her half of the jointly owned property to her children, the solicitor did not breach the common law duty owed to the beneficiaries. Her expressed wish was for her husband to sell the entire property (including his own interest) and distribute the proceeds. Consequently, there was no breach.
The key criterion appears to be whether instructions of an unconditional testamentary intention, and whether the steps needed to fulfil that duty, are part of the will-making process. In Carr-Glynn v Frearsons [1999] Ch 326, there was uncertainty about whether the will-maker held property in joint tenancy. Still, the solicitor failed to take steps to obtain the deeds to clarify this before the testatrix’s death, rendering the gift to the plaintiff ineffective. The Court of Appeal (Butler-Sloss, Thorpe and Chadwick LJJ) held that a solicitor owes a duty of care to an intended beneficiary to ensure the effect of a testator’s given intentions. The solicitors breached this duty by failing to advise the testatrix to serve a notice of severance immediately, together with the Will.
In Smeaton v Pattison [2002] QSC 431, Atkinson J (at first instance, affirmed on appeal), found a solicitor’s failure to properly advise on how to sever a joint tenancy to violate both the contractual duty to the testator and the common law duty to the beneficiaries. The solicitor was instructed that the relevant properties, held in joint tenancy with the testator’s second wife, were to be left to her with the income from those properties until her death or remarriage, with his children inheriting his half. The testator’s intention was thus established. However, the solicitor apparently did not know the Queensland mechanisms available at the time to sever a joint tenancy, and the methods advised and used were ineffective. Severance is part of the will-making process, and failure to advise on this was a breach of duty to the beneficiaries.
Based on the balance of probabilities, the Court was convinced that if the deceased had been advised that cl 3 of the Will would be ineffective for its intended purpose, he would have instructed the solicitors to take steps to sever the joint tenancy. Several simple and inexpensive options were available, such as lodging a Transfer Severing Joint Tenancy with the LPI unilaterally under s 97 of the RPA, or a Transfer Altering Tenancy by both the deceased and Ms Miller—simple steps that can be done unilaterally or by agreement. Andronos SC DCJ was confident that the deceased would have instructed the solicitors to proceed if he had understood the impact of the joint tenancy on clause 3 of his Will.
Regarding the argument about the lack of evidence of counterfactuals, his Honour believed the only relevant counterfactual is that steps would have been taken on the deceased’s behalf (at a minimum) to sever the joint tenancy. It does not seem necessary for the plaintiff to establish other counterfactuals. The loss relates to a specific benefit, not to the chance of a better outcome, which would require valuation. Therefore, there is no need to analyse the probability or likelihood of success.
In R Lawyers, the plurality (Gageler CJ, Jagot and Beech-Jones JJ) stated at [49]:
“In some lawyer negligence cases, a court can infer the particular steps that might have been taken had the lawyer discharged their duty.”
Andronos SC DCJ held that this case illustrates that both the deceased and Ms Miller shared the same goal: protecting each other’s interests and making provisions for their children from previous relationships. His Honour was convinced that if they had known that the Wills did not achieve this goal and that an inexpensive correction was possible without affecting their other objectives, they would have readily taken that step.
Regarding the scope of liability under s 5D(1)(b), there was little dispute. Andronos SC DCJ believed that the blame for the harm suffered by the plaintiff—losing a significant property right—should be on the solicitors, whose breach of duty caused his loss.
Loss
The plaintiff claims his loss as the deprivation of a property interest—specifically, his future right as a remainderman in the deceased estate.
Expert evidence, mostly uncontested, shows:
– The value of the Forster Property at the deceased’s death was either $1,450,000 (Mr Bird) or $1,550,000 (Mr McDouall).
– the deceaseds 50% joint interest was valued between $725,000 and $775,000.
– Given the less than 10% difference in valuations, the Court used a midpoint of $750,000 for his interest’s value at death.
Both Mr Plover and Mr Thomson agreed that the plaintiff’s interest as remainderman was 34% of the Forster Property’s value at the date of the joint report, factoring in Ms Miller’s 16% life interest, the possibility of early vesting, and the fact that the defendant will compensate the plaintiff now for an asset that would vest in the future.
Thus, based on valuers’ evidence, the loss is 34% of $1,500,000, equaling $510,000.
I accept this evidence and the calculations.
The defendant argued for a further discount of up to 80% of the loss based on the likelihood that, without AVL’s breach, the deceased wouldn’t have insisted on severing the joint tenancy. However, Andronos SC DCJ found, on the balance of probabilities, that the deceased would have instructed for severance. Therefore, this probability does not apply here. Additionally, his Honour did not believe this was the correct legal approach to causation or loss assessment.
Both counsel agreed that this case is not suitable for valuing the loss of chance, as described in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, which considers whether Mr Smeaton would have decided differently if he had received proper advice. As Pincus JA noted in Green v Chenoweth:
“The foundation of the Malec doctrine is the distinction between the proof of liability and proof of damages; as to the former, Malec does not affect the well-established position that facts must be proved on the balance of probabilities”.
McPherson JA agreed, stating that despite the High Court’s decision in Malec v JC Hutton Pty Ltd,
“a plaintiff in an action for damages for negligence continues to be bound to establish that the defendant’s negligent act or omission caused the injury complained of, or at least materially contributed to it”
Conclusion
I am satisfied that the plaintiff has proved his claim of negligence against AVL, as AVL was an insured under the Claims Act. Consequently, I find the defendant liable to pay the assessed amount of $510,000 to the plaintiff.
Interest
The plaintiff requested interest from the deceased’s death, claiming that it arose at that time.
Interest is discretionary, intended to compensate a successful plaintiff for the loss of use of the recovered money.
In this case, the plaintiff would not have received any money by that date, and even without the breach, he still wouldn’t have. Hence, I decline to award interest.
Costs
Since the plaintiff was successful and costs generally follow the outcome, he would normally recover costs under rr 42.1 and 42.2 of the Uniform Civil Procedure Rules 2005.
Andronos SC DCJ allowed the parties to agree on a costs order. If they reach no agreement, His Honour will set a timetable for submissions and a separate decision on costs.
Orders
The Court orders:
– Judgment for the plaintiff against the defendant for $510,000.
– If the parties do not agree on a costs order and notify my Associate by 5 pm on 27 March 2026:
– They must file evidence and submissions on costs by 5 pm on 2 April 2026;
– Costs to be decided on papers unless the Court indicates otherwise.
Basing the $510,000 assessment on expert evidence. Valuers estimated the Forster Property at approximately $1.5 million at the date of death. Actuarial evidence assessed the plaintiff’s end interest at 34 per cent of that value, accounting for M Iller’s life interest and the present value of a future benefit. Andronos SC DCJ awarded no pre-judgment interest.
Australian and UK authorities address the reconciliation of joint tenancy arrangements with testamentary intentions. In Carr-Glynn v Frearsons [1999] Ch 326, the Court of Appeal confirmed that solicitors owe a duty to intended beneficiaries to take reasonable steps to ensure a testator’s wishes regarding jointly owned property are effective, including advising on severance where required. The present outcome illustrates that omissions in estate planning advice can result in significant liability for professional indemnity insurers. Practitioners can mitigate these risks by confirming property titles and ownership structures, using detailed checklists during Will preparation, and maintaining comprehensive file notes on joint tenancies and severance options.
Peer review of Wills involving jointly owned assets and regular training in conveyancing and estate law help identify and address potential issues before execution. Standardising client communications through template letters or information sheets on the consequences of joint tenancy, and conducting periodic internal audits of estate files, further support consistent risk management and timely correction of deficiencies. These measures reduce the risk of oversight and provide a clear record of advice.
To implement checklists and templates effectively, practitioners should integrate them into client intake and drafting procedures. Practitioners can use these checklists at the start of the file to address all key estate-planning considerations from the outset. Templates, such as standard letters or file notes, may be incorporated into document management systems to improve usability. Reviewing completed checklists at critical stages, such as before signing, helps identify omissions early. Regular team meetings or peer reviews can address checklist compliance and recurring gaps. Embedding these tools into the routine workflow supports risk management and consistent delivery of advice.
The issue of costs was unresolved at judgment. Where costs remain outstanding, parties are generally required to confer and seek agreement. If agreement is not reached, the parties must file written submissions in accordance with the Court’s directions. The Court typically sets a timetable for notification and filing deadlines. Practitioners should ensure compliance with these timelines to avoid delay or adverse costs orders. Reviewing the specific orders and monitoring key dates is essential to avoid procedural errors.
The parties were directed to file submissions on costs by 2 April 2026 if an agreement is not reached.