Badenach v Calvert [2016] HCA 18

Badenach v Calvert [2016] HCA 18

The solicitor's duty of care to Mr Calvert as intended beneficiary was limited to ensuring the testamentary gift was legally effective in accordance with the testator's instructions. That duty did not extend to advising the testator to take steps (such as inter vivos transfers) to avoid claims under the Testator's Family Maintenance Act 1912 (Tas); nor did such a duty arise at a time when the interests of the testator and beneficiary were not coincident. Furthermore, there was no sufficient evidence that, had such advice been given, the testator would have acted differently so as to benefit Mr Calvert. Therefore, no relevant duty was owed to the respondent, and no causation or loss was...

Parties
Appellants: Robert Badenach & Anor; Respondent: Roger Wayne Calvert
Jurisdiction
Australia
Judgment Date
11 May 2016
Procedural Posture
Appeal / High Court Appeal From the Supreme Court of Tasmania (full Court)
Outcome
Appeal allowed with costs.
Legal Topics
Negligence, Duty of Care, Solicitors' Duties, Intended Beneficiaries, Causation, Loss of Chance
Tort Law Wills and Estates Negligence Duty of Care Solicitors' Duties Intended Beneficiaries Causation Loss of Chance

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Parties

Robert Badenach & Anor

Appellants

Roger Wayne Calvert

Respondent

Procedural Posture

Appeal / High Court Appeal From the Supreme Court of Tasmania (full Court)

Legal Issues

  1. 1 Whether a solicitor owes a duty of care to an intended beneficiary under a testator's will to advise the testator of possible steps to avoid a claim under Testator's Family Maintenance Act 1912 (Tas)
  2. 2 Whether a solicitor's duty of care to the client in preparing a will extends to advising on steps to defeat a potential claim under family provision legislation
  3. 3 Whether Hill v Van Erp applies to impose a duty to intended beneficiaries in these circumstances

Ratio Decidendi

The solicitor's duty of care to Mr Calvert as intended beneficiary was limited to ensuring the testamentary gift was legally effective in accordance with the testator's instructions. That duty did not extend to advising the testator to take steps (such as inter vivos transfers) to avoid claims under the Testator's Family Maintenance Act 1912 (Tas); nor did such a duty arise at a time when the interests of the testator and beneficiary were not coincident. Furthermore, there was no sufficient evidence that, had such advice been given, the testator would have acted differently so as to benefit Mr Calvert. Therefore, no relevant duty was owed to the respondent, and no causation or loss was...

Court Disposition

Appeal allowed with costs.

Orders

  • Appeal allowed with costs.
  • Orders of the Full Court of the Supreme Court of Tasmania dated 24 July 2015 set aside.