From: Gerard Sadlier <>
To: Neil Foster <>
Date: 28/07/2015 08:47:43 UTC
Subject: Re: ODG: Duty of care to beneficiary to advise re TFM application

Dear Neil,

On your suggestion that the solicitors might owe a duty to the family
members excluded from the will, see on a related point the decision of
the High Court in Ireland in Rojack v. Taylor & Anor [2005] IEHC 28.

There, a daughter of the testatrix claimed that the solicitor who had
prepared her mother's will and acted advisers to the executors (one of
whom was the Plaintiff) had a duty to advise her that she could bring
an application for greater provision from the testatrix's will under
Section 117 of the (Irish) Succession Act 1965 - or that she should
seek independent legal advice concerning her right to do so.

The Court was clear in holding that there was no such duty.

I think that ruling was right - though I guess that if you wanted to
undermine the decision's precedential value, you would point out that
the Court was entirely satisfied that no additional provision was due
to the Plaintiff in any event, having concluded that the testatrix had
treated her with the greatest kindness throughout, in what had proved
difficult circumstances at times.

Kind regards


On 7/28/15, Neil Foster <> wrote:
> Dear Colleagues;
> There is interesting decision from the Full Court of the Supreme Court of
> Tasmania in Calvert v Badenach [2015] TASFC 8 (24 July 2015)
> 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.
> Regards
> Neil
> neil foster
> Associate Professor
> Newcastle Law School
> Faculty of Business and Law
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