Hawkins v Clayton [1988] HCA 15

Hawkins v Clayton [1988] HCA 15

Solicitors who have custody of a deceased client's will and know that the executor is unaware of his appointment are under a duty to take reasonable steps to notify him so effect may be given to the testator's intentions; the breach of this duty caused economic loss to the estate, and the claim brought within six years of the executor's assumption of office was not statute-barred.

Jurisdiction
Australia
Procedural Posture
Appeal / High Court Decision
Outcome
Appeal allowed
Legal Topics
['duty of Care' "solicitor's Duty" 'limitation Periods' "executor's Rights" 'economic Loss']
['tort Law' 'contracts' 'professional Negligence' 'estate Law'] ['duty of Care' "solicitor's Duty" 'limitation Periods' "executor's Rights" 'economic Loss']

Case Brief

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Procedural Posture

Appeal / High Court Decision

Legal Issues

  1. 1 ['Whether solicitors owed a duty of care to the executor to take reasonable steps to notify him of his appointment and of the existence of the will.' 'Whether a contractual duty to locate and inform the executor can be implied between the testatrix and the solicitors.' 'Whether the action is statute-barred by the operation of the Limitation Act 1969 NSW, s. 14(1).']

Ratio Decidendi

Solicitors who have custody of a deceased client's will and know that the executor is unaware of his appointment are under a duty to take reasonable steps to notify him so effect may be given to the testator's intentions; the breach of this duty caused economic loss to the estate, and the claim brought within six years of the executor's assumption of office was not statute-barred.

Court Disposition

Appeal allowed

Orders

  • ['Set aside judgment of Court of Appeal NSW' 'Adjourn further determination for twenty-eight days to allow parties to bring in minutes for consent order' "If parties do not bring minutes, allow appeal to Court of Appeal with costs, set aside judgment of Yeldham J., enter judgment for plaintiff for damages to be...