Where there’s a will the High Court will find a way … Solicitor has no duty to protect beneficiary against estate-depleting relatives … Hannah Ryan court-side … News from The Map 

To his relief, the High Court held that a solicitor does not owe a duty of care to an intended beneficiary to advise a testator of the possibility that a family member might pop out of the woodwork and make a claim on the estate.   

Nor is there a duty to advise what steps might be taken to avoid a testator’s family maintenance claim. 

Doddridge instructed Bob Badenach, the longest service partner of Hobart’s Murdoch Clarke (now a consultant), to prepare a will, by which his entire estate should pass to the respondent, Roger Calvert. 

His principal assets were two properties, which he owned as tenant in common in equal shares with Calvert. 

Roger’s mother had been Doddridge’s partner for many years before her death, and he treated Calvert like a son. 

He had a daughter from a previous marriage, but he made no provision for her. 

After Doddridge’s death, his daughter successfully made a claim for provision under the Testator’s Family Maintenance Act 1912 (Tas) and the estate was substantially depleted. 

Calvert sued the solicitor and his firm, claiming that Badenach was negligent in failing to advise Doddridge of the possibility that his daughter could claim under the TFM Act and the options available to avoid such a claim. 

Specifically, the respondent argued that the solicitor should have advised his client that he could avoid such a claim by converting his and Calvert’s interest in the properties to joint tenancies, or by making inter vivos gifts to the respondent. 

By failing to do so, he breached the duty he owed to the respondent as the intended beneficiary of the estate.

While the solicitor could easily have ascertained the existence of the daughter, there was no evidence as to what Doddridge might have done if he knew about the possibility of a TFM Act claim. 

At first instance, Blow CJ dismissed the claim, but the Full Court (Tennant, Disco Dave Porter and Estcourt) allowed an appeal, holding that the solicitor was duty-bound to advise his client of the steps he might take to avoid a claim, even if he didn’t enquire about those steps.   

The duty owed to Calvert was held to be co-extensive with that duty. The Full Court also allowed Calvert to redefine the loss he claimed to have suffered, so that he complained of the loss of a prospect that Doddridge would have taken steps to protect Calvert’s position. 

The High Court unanimously allowed the appeal. Badenach was home and Blow was right.

French, Kiefel and Keane held that the solicitor would not have a duty to advise his client about how to avoid a claim against his estate by inter vivos transactions. 

A duty owed to a client arises from a solicitor’s retainer, and that duty is to ensure that a client gives consideration to the claims that might be made upon his estate before giving final instructions as to his testamentary dispositions. 

Accordingly, Badenach should have asked Doddridge about the existence of any family members, and advised that a claim could be brought under the TFM Act – but any advice as to how to avoid such a claim by inter vivos transactions was not clearly relevant in the context of the retainer. 

While the High Court had previously found, in Hill v Van Erp that a solicitor can owe a duty to an intended beneficiary, there the loss claimed was not that of an expectation, but a share in the testratrix’s estate. 

The testatrix’s final testamentary intention was clear and the will was only rendered void due to formal considerations. The interests of the testatrix and beneficiary were aligned, and the obligation was limited and well defined. 

Here, by contrast, the duty contended for was not to give effect to testamentary intention, but really a more general duty to give advice as to the client’s property interests and future estate. Indeed, the advices contended for would have rendered it unnecessary for Doddridge to name Calvert as a beneficiary in his will. 

Stephen Gageler agreed that the solicitor did not owe the respondent a duty of the scope contended for. That scope must be determined by the testator’s instructions. HH held that a solicitor’s duty of care is confined to requiring the solicitor to take reasonable care to benefit an intended beneficiary in the manner and to the extent identified in the testator’s instructions. 

The terms of the instructions are key. Here they were to give Calvert a legally effective testamentary gift of the testator’s estate – and he did so. 

Although Badenach failed to warn of the risk that Doddridge’s daughter might make a claim and to advise him that he could transfer property during his lifetime, these were not steps that were integral to carrying into effect the testator’s instructions that his will bestow his estate to Calvert. Accordingly, they were not within the scope of the duty owed to Calvert. 

Agreeing that the relevant duty was not established, Justice Gordon emphasised that the interests of the testator and of Calvert were not the same, consistent or coincident. 

French, Kiefel, Keane and Gordon also held that the respondent failed on causation. He did not show that, but for the solicitor’s failure to give the advice contended for, he would have received the estate. 

There was no reason to think that if the client had been given the advice contended for, he would have been more likely to undertake the transactions Calvert would desire. 

Calvert also failed to prove that there was any loss of a valuable opportunity. While he needed to prove that there was a substantial prospect of a beneficial outcome, he adduced no evidence of what would have been done if the opportunity had been afforded.