Vagg v McPhee [2011] NSWSC 1584

Vagg v McPhee [2011] NSWSC 1584

The court held that no duty arose in favour of the children beneficiaries for the defendants to ensure steps such as severance of joint tenancy were taken, as the will reflected Mrs Vagg’s intentions for her residual estate and no instructions were given regarding altering property interests. Even if inadequate advice was given, the claimed duty did not arise and no breach of duty owed to the plaintiffs was established.

Parties
First Plaintiff: Margaret Doreen Vagg; Second Plaintiff: Benjamin John Vagg; Third Plaintiff: Julia Lillian Vagg; Fourth Plaintiff: Cecilia Anne Vagg; Fifth Plaintiff: James Gregory Vagg; First Defendant: Paul McPhee; Second Defendant: Trevor Cork; Third Defendant: David Dunkley; Fourth Defendant: Steven Nicholson
Jurisdiction
Australia
Judgment Date
19 December 2011
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Proceedings dismissed
Legal Topics
Lawyers' Duties and Liabilities, Drafting Wills, Duty of Care to Beneficiaries, Severance of Joint Tenancy, Family Provision Claims, Damages
Professions and Trades Negligence Wills and Estates Family Law Lawyers' Duties and Liabilities Drafting Wills Duty of Care to Beneficiaries Severance of Joint Tenancy +2 more

Case Brief

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Parties

Margaret Doreen Vagg

First Plaintiff

Benjamin John Vagg

Second Plaintiff

Julia Lillian Vagg

Third Plaintiff

Cecilia Anne Vagg

Fourth Plaintiff

James Gregory Vagg

Fifth Plaintiff

Paul McPhee

First Defendant

Trevor Cork

Second Defendant

David Dunkley

Third Defendant

Steven Nicholson

Fourth Defendant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Whether advice was given as to severance of joint tenancy
  2. 2 Whether defendants were negligent in advice given regarding estate planning
  3. 3 Whether defendants owed plaintiffs (beneficiaries) a duty of care

Ratio Decidendi

The court held that no duty arose in favour of the children beneficiaries for the defendants to ensure steps such as severance of joint tenancy were taken, as the will reflected Mrs Vagg’s intentions for her residual estate and no instructions were given regarding altering property interests. Even if inadequate advice was given, the claimed duty did not arise and no breach of duty owed to the plaintiffs was established.

Court Disposition

Proceedings dismissed

Orders

  • Proceedings dismissed
  • Usual order as to costs, costs to follow the event