Will Makers Extended Duty of Care to Beneficiaries

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In the case of Calvert v Badenach, decided in July in Hobart, Tasmania, it was found that a Solicitor’s duty of care when advising a Testator extended to beneficiaries and potential beneficiaries. In that case, a Solicitor advised a client about making their Will, but failed to give any detailed advice about a potential Family Provision Application that could arise from the Testator’s disenfranchised daughter. The Testator left the bulk of his estate to a friend who was a business partner, and left two parcels of real estate to that beneficiary , who also happened to own the properties with the Testator as “tenant in common”.

When the daughter’s claim for provision from the estate was successful, the Solicitor for the Testator was then successfully sued by the named beneficiary on the basis that the Solicitor should have advised the testator to alter the ownership of the properties to “joint tenants” rather than “tenants in common”. This would have had the effect of removing those properties as assets of the Testator’s estate upon his death. The right of survivorship which attaches automatically to land registered as “joint tenants” would have prevailed had the named beneficiary have been a “joint tenant” and the properties would have fallen outside of the Testator’s estate, and therefore not available for a Family Provision Application.

When advising Will makers, the extent of the duty of care owed by the Solicitor is wide, and without doubt extends to beneficiaries and potential beneficiaries.

This case is not dissimilar to the case involving the Estate of Peter Smeaton v Pattison, where a Solicitor failed to sever the joint tenancy prior to the death of a Testator, thereby leaving properties as ‘joint tenants’ and therefore out of the reach of the estate executor. The beneficiaries of the estate were then successful in suing the Solicitor for negligence, and the loss of the value of the properties that were received by the surviving joint tenant, and unavailable to them as beneficiaries.