No such thing as a simple Will

No such thing as a simple will

A recent decision of the Full Court of the Supreme Court of Tasmania in Calvert v Badenach [2015] TASFC 8 is a good reminder for lawyers preparing wills that there is no such thing as a simple will.  The case concerned a professional negligence claim against a Tasmanian lawyer by a disappointed beneficiary.

The practitioner prepared the last will for his client, Mr Doddridge, who left all his estate to his de facto partner’s son, Mr Calvert. The de facto partner had passed away some time before.

After Mr Doddridge died his estranged daughter made a family provision claim and succeeded to the tune of $200,000 plus costs.  Mr Calvert then sued the practitioner, alleging he was owed a duty of care and that duty was breached.  The practitioner failed to ask about the existence of any children of the testator and advise the testator about a possible family provision claim and what could be done to avoid one.

In this case the major assets in the estate were two properties the testator had owned as tenants in common with Mr Calvert.  It was contended that the practitioner should have advised the testator to convert the ownership of the properties into joint tenancies so that on his death, the properties would not form part of the estate and any family provision claim would have been significantly reduced.

Mr Calvert was unsuccessful at first instance. On appeal all three judges agreed that the practitioner owed a duty of care to the testator not only to enquire of the testator whether he had any children, but to advise him why the enquiry was being made, the potential for a family provision claim, the impact it would have on his wishes, and any possible steps he could consider to avoid that impact.

Two of the three judges commented on the relationship between the extent of the duty and the experience of the client.  Contractual duty of care, it was said, may depend on the nature of the client and his/her need for advice.  Here, the testator was elderly, terminally ill and fully reliant on the practitioner to implement his testamentary wishes.

In those circumstances the practitioner’s duty extended to not only asking questions that might elicit the existence of possible claimants but to advising about mechanisms to minimise the  estate available to meet any claim

All three judges agreed that the duty owed to the intended beneficiary in tort should not be something less than a contractual duty owed to the testator.

Their Honours also all agreed that this was a case of loss of opportunity or chance.  The practitioner’s negligence caused the beneficiary to lose an opportunity to obtain a better outcome.  The case was remitted to a single judge to make the loss of opportunity assessment.

An application for leave to appeal to the High Court has been made by the practitioner so this is not the end of the story!

But as it stands at the moment, the Tasmanian Full Court has said practitioners owe a duty to intended beneficiaries to take reasonable care to ensure that, as far as possible, the testator’s testamentary wishes are carried into effect and not unnecessarily defeated.

The moral to the story is to remember that EVERYTHING needs to be discussed when making your Will.