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Duty of solicitor to beneficiary of will to deceased estate

Maestrale v Aspite [2012] NSWSC 1420. Fullerton J.

99. In Hill v Van Erp [1997] HCA 9; 188 CLR 159, a case where the solicitor was held liable to the intended beneficiary under the will where the disposition was rendered ineffective because the husband of the intended beneficiary had been asked to attest the will, Dawson J observed at 185:

"Thus, when a solicitor accepts responsibility for carrying out a client's testamentary intentions, he or she cannot, in my view, be regarded as being devoid of any responsibility to an intended beneficiary.

"The responsibility is not contractual but arises from the solicitor's undertaking the duty of ensuring that the testator's intention of conferring a benefit upon a beneficiary is realised. In a factual, if not a legal sense, that may be seen as assuming a responsibility not only to the testatrix but also to the intended beneficiary."

100. His Honour went on to say:

"The notion of general reliance or dependence described by Mason J [in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424] is apt also to describe the situation in which, whilst there will usually be no specific reliance by an intended beneficiary upon a solicitor retained to attend to the will, the intended beneficiary's interests are totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor.

"And, it might be added, in that situation the solicitor knows of the beneficiary's dependence and in that respect may be regarded as having assumed responsibility towards the intended beneficiary." 

101. Mason CJ expressed the principle in a slightly different way. His Honour said at 170:

"By accepting the testator's retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a testator on death to an intended beneficiary; it is foreseeable that, if reasonable care is not exercised in performing the task, the intended beneficiary will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with; and the intended beneficiary thereby loses the property..." 

  1. His Honour continued:

" ... I would not regard the principle underlying recovery against the solicitor as being an extension of the Hedley Byrne assumption of responsibility.

"The Hedley Byrne category of case depends upon an assumption of a duty of care as a factual element in the relationship between the plaintiff and defendant. In cases of the present kind, there is no anterior relationship between solicitor and intended beneficiary and the duty of care is imposed by law." 

103. Although Dawson J (with whom Toohey J agreed) and Mason CJ approached the articulation of principle in different ways (with Gaudron J regarding the critical point as the solicitor's position of control over the testamentary wishes of the client), Hill v Van Erp is authority for the proposition that defects in a solicitor's work, whatever their character may, depending upon the facts and circumstances in a particular case, be just as much a breach of duty to persons foreseeably damaged by them as they are to the client.

104. The passages I have extracted above were cited and applied in Hendriks v McGeoch [2008] NSWCA 53 where the Basten JA (Spiegelman CJ agreeing) held that a solicitor will not generally be under a duty of care to a third party where performance of the duty would or could conflict with the solicitor's obligations to his/her client.

"However, where performance of the duty involves carrying out the client's instructions no such potential for a conflict arises. No suggestion of a conflict of that kind presents in the present case. In Hendriks the Court was also satisfied that the beneficiary's loss was caused by the solicitor's breach of duty since there was no suggestion that that either he or his mother (the testator) would not have signed an appropriate agreement protecting her son's interest in the residential property that she at one time determined to transfer inter vivos (in keeping with her then current will) but that she later resolved not to transfer because of the negative impact, on her tax affairs."



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