|From:||Robert Stevens <firstname.lastname@example.org>|
|To:||Tracey Carver <email@example.com>|
|CC:||Neil Foster <firstname.lastname@example.org>|
|Date:||28/07/2015 03:49:12 UTC|
|Subject:||RE: Duty of care to beneficiary to advise re TFM application|
That potential beneficiaries of the duty of care are limited to those it is intended will benefit from the solicitor performing his contract with his client, and does not extend to all those who it could be reasonably foreseen may be left better (or worse) off, in my opinion reveals what is really going on.
It is really an exception to privity of contract. We are exceptionally allowing a third party beneficiary to sue. The reason is that (very unusually) if we give the promisee the substantial claim for damages this will not lead to the nearest approximation now possible, insofar as money can do it, to the contract having been performed. This is because the testator/promisee is dead, and giving the money to the estate will give recoveries to the wrong people. The estate/promisee has no choice about what happens to any recoveries.
I am not very keen on exceptions to privity, but here I can just about swallow it.
My understanding is that the law in Australia may currently be seen to be limited to solicitors under wills owing duties of care to disappointed but “intended” beneficiaries. I must admit not having read Calvert v Badenach  TASFC 8 (24 July 2015) myself yet, but from the summary that you provide the decision would seem consistent with that principle – B was a someone that the testator intended to benefit, and therefore the solicitor owed them a duty of care as a third party (and although the solicitor was not in any prior or direct relationship with them).
Unless Calvert extends this principle, it may be argued, in the case of a disappointed family member who goes on to make a TFM claim, that they were never an “intended” beneficiary – and therefore that claimant falls outside the ambit of any current duty of care.
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This is very interesting especially since the TFM legislation in the Australian states contemplates such a broad range of possible claimants, especially in Victoria where almost anyone who has ever had any kind of relationship with the deceased can be an eligible applicant – it doesn’t mean that they will all recover, but they can get in the door. The Full Court must be right about the duty of care owed to advise the testator about the possible TFM claim. Any will drafter would normally think about that and advise; but whether the plaintiff has actually lost anything thereby is dubious because a will is ambulatory anyway, and the testator could well have refused to change the will and just chance it. I see no reason why anyone would bother to sue as a TFM claimant because it is so much easier to bring a TFM claim than it is to bring a negligence claim.
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There is interesting decision from the Full Court of the Supreme Court of Tasmania in Calvert v Badenach  TASFC 8 (24 July 2015) http://www.austlii.edu.au/au/cases/tas/TASFC/2015/8.html on the question whether a solicitor advising a testator about a proposed will leaving property to B, owes a duty of care to B which extends to advising the testator about a possible “family provision” (“testator’s family maintenance”) application by another party. Here the (now deceased) testator left half shares in property he owned as tenant in common with B, to B; the will was later successfully challenged by the testator’s daughter, who had received nothing under the will, and the daughter received a $200,000 payment. B claimed that the solicitor ought to have advised the testator to have arranged his affairs before death so that the daughter would not have been able to make such a claim (the most obvious technique would have been to transfer the property into joint tenancies so that it would not have formed part of the estate.)
Over-ruling a trial decision by Blow CJ, the Full Court held that there was a duty of care in the circumstances, and that it had been breached. They did not, however, order the payment of the full amount taken from the estate by the daughter; they all took the view that what B had made out was “loss of a chance” to money, and hence that the matter should be sent back to a trial judge for calculation of the chance. (Taking the view that even if the advice had been given, there were various responses the testator could have made.)
There are a number of interesting features to this case. One that strikes me, however, is this: if, as we know is accepted law, a solicitor owes a duty to the beneficiary under a will he or she is advising on, could it not be argued that he or she might owe a duty to persons in the testator’s family who will be deprived of a legitimate expectation of support by the way the will is framed? Of course it could be said that the solicitor is in no prior relationship with the family member; but it could also be said that he or she is not in any prior relationship with the beneficiary.
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