Analysis
The first appellant was a legal practitioner and a partner of the second appellant, a law firm. The solicitor received instructions from Jeffrey Doddridge (who was 77 years old at the time) to prepare his will, by which the entirety of his estate was to pass to the respondent, Roger Calvert, whom Mr Doddridge treated as his son. Mr Doddridge made no provision for his daughter by his first marriage. She brought a claim under the Testator’s Family Maintenance Act 1912 (Tas) (the TFM Act), and was successful in obtaining a court order that provision be made out of the clients estate. The costs were borne by the estate, which was thus substantially depleted.
The respondent brought proceedings in negligence, contending that it was negligent in failing to advise the client of the possibility that his daughter might make a claim under the TFM Act, and the options available to him to reduce or extinguish his estate so as to avoid such a claim ‘ in particular, severing his joint tenancies, or making inter vivos provision to the respondent. The respondent alleged that these acts of negligence were breaches of the duty that the solicitor and the law firm owed to the respondent as the intended beneficiary of the client’s estate.
The trial judge had dismissed the claim, but this was overturned by the Full Court of the Supreme Court of Tasmania. The matter was appealed to the High Court of Australia.
Held:
- 1) Whilst advice about the possibility of a claim against his estate is clearly relevant in the context of the retainer, advice about how to avoid such a claim by inter vivos transactions with property interests was not. It was difficult to see how the solicitor had a duty to do so merely because the solicitor has informed the client of the possibility that a claim could be made by the daughter but that, absent further information, he could not be any more certain about it occurring. It could not be reasoned from the fact that the daughter later brought a claim that the solicitor should have appreciated that this was likely to occur. Even if he had done so, it was still difficult to see that the appreciation of this possibility would have warranted advice of this kind. Neither the solicitor nor the client could have known with any certainty whether the claim would be successful and, if so, the extent of the provision that might be made for the daughter from the client’s estate
- 2) Even if the solicitor came under a duty to advise the client in the terms alleged, it could not be concluded what course of action the client would then have taken. Given the risks associated with the courses available to extinguish such a claim, and the uncertainty that the daughter would make one, there is no reason to think that even if the client had been given the advice contended for, he would have been more likely to undertake transactions of this kind than, say, simply pursuing his original course of action, by which the respondent was to be the sole beneficiary under the client’s will.
- 3) The appeal therefore should be allowed.
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