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Roger Wayne Calvert v Robert Badenach & Murdoch Clarke Solicitors


On 24 July 2015 Shine Lawyers secured a successful judgment in the Supreme Court of Tasmania sitting as the Full Court in the matter of Roger Wayne Calvert v Robert Badenach & Murdoch Clarke Solicitors (a firm). In this case, the court overturned the decision of the Tasmanian Supreme Court at first instance and entered judgment in favour of a beneficiary against a solicitor who had drafted the will of the testator. The judgment concerned the extent of the duty of care owed by a solicitor to the testator and the beneficiaries of a will and reflects the importance of consulting estate planning law specialists in drawing wills in which property interests are involved.

In March 2009, the first respondent, solicitor Robert Badenach prepared a will for Jeffrey Doddridge. Mr Doddridge and the appellant, Mr Calvert, each owned a half interest as tenants in common in two properties. Mr Doddridge engaged the first respondent to prepare the will to give effect to his intention that the whole of his interests in the properties (and his other assets) would pass to Mr Calvert upon his death. The second respondent, Murdoch Clarke Solicitors, a firm in which Mr Badenach was a partner, had acted for the testator for a number of years and had previously prepared two wills for him. In one of these earlier wills, the testator had named his estranged daughter as a beneficiary but no such provision was made in the most recent will of Mr Doddridge. This was prepared shortly after Mr Doddridge was advised he had a terminal illness and was not expected to live more than six months.

Probate of the will was granted in 2010 and the testator’s Estate included the half interests in the two properties held with the appellant. The daughter of the testator made an application pursuant to the Testator Family Maintenance Act 1912 (“TFM Act”) for provision of the testator’s half interests in the Estate. The application was successful and she was awarded a significant amount of the Estate.

The appellant commenced an action against the respondents for damages in negligence. The appellant alleged that the respondent owed a duty of care to give effect to the testator’s intention and to ensure that the appellant received the whole of the Estate, as was intended. Mr Calvert alleged that the testamentary intention of Mr Doddridge could have been effected if the solicitor had advised him to transfer his tenancy with Mr Calvert from tenants in common to joint tenants. Blow CJ was not satisfied, on the balance of probabilities, that the testator would have joined the appellant in creating joint tenancies, and thus found that no causation of the loss of the appellant could be established.[1] As a result, the trial judge did not decide the question of how far the scope of the duty of care owed to intended beneficiaries of a will extends. The respondent appealed the decision, and was successful by a unanimous decision of the Full Court comprising of Tennent, Porter and Estcourt JJ.

In summary, the Full Court found that:

  • The scope and content of the duty of care owed to intended beneficiaries extends beyond formal features of a will;
  • The duty to the testator extended to advising him the options available in light of a possible claim under the TFM Act, and that this was a duty that extended to the appellant as a nominated beneficiary;
  • The respondent was under a duty to enquire about the existence of the testator’s family and consider the steps available to protect the testator’s intention from possible claims under the TFM Act;
  • If the solicitor had made enquiries as to the existence of the testator’s family, it would have sparked a conversation about the options available to the testator to protect the testator’s assets from possible claims under the TFM Act; and
  • Had the first respondent advised the testator that he could keep certain property assets out of the reach of a potential claim under the TFM Act by altering the property ownership he held with the appellant from tenancies in common to joint tenancies, the testator may have made arrangements in accordance with this advice. Thus, the claim was one for loss of opportunity.
While the earlier decision of the High Court in Hill v Van Erp[2] is the well-known authority affirming that a solicitor owes a duty of care to nominated beneficiaries of a will, the judgment did not consider how far this duty to beneficiaries extends. The decision in Calvert sheds light on how far the court may be willing to extend the duty of care owed by solicitors to beneficiaries in the preparation of wills. Further, it provides a cautionary tale for solicitors in the business of drawing wills to be aware of and consult estate planning law specialists. Particularly critical in his judgment, Porter J went as far as to say that it would be common practice to advise a testator of the types of dealings with presently held assets that might be appropriate in order to give proper effect to testamentary intention.

If one of your clients has sought advice from a non-accredited solicitor and suffered loss, Shine Lawyers may be able to help. For more information, get in touch by contacting us.

[1] Calvert v Badenach [2014] TASSC 61.

[2] (1997) 188 CLR 159.

 

Written by Jan Saddler

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