Case Name: Badenach v Calvert
- Citation: [2016] HCA 18; (2016) 257 CLR 440; 90 ALJR 610; 331 ALR 48
- Court: High Court of Australia
- Judges: French CJ, Kiefel, Gageler, Keane, and Gordon JJ
- Areas of Law: Negligence, Duty of Care, Testamentary Intentions, Solicitor-Client Relationship
- Date of Judgment: 11 May 2016
The case Badenach v Calvert [2016] HCA 18 revolves around a claim of negligence against a solicitor (the appellants) by an intended beneficiary (the respondent). Here is a summary of the main points.
Case Background (Badenach v Calvert)
The solicitor was engaged by a testator, Mr. Doddridge, to draft a will that left the entirety of his estate to Mr. Calvert, whom the testator regarded as a son, although they were not biologically related.
The testator’s daughter from a previous marriage, who was excluded from the will, later successfully claimed under the Testator’s Family Maintenance Act 1912 (Tas) (TFM Act) to receive a portion of the estate, significantly depleting it.
Mr. Calvert alleged the solicitor was negligent in not advising the testator of steps to prevent such claims under the TFM Act, such as creating joint tenancies or transferring assets during the testator’s lifetime (inter vivos transactions).
Legal Issues
The primary question was whether the solicitor owed a duty of care to Mr. Calvert as an intended beneficiary of the will, in addition to the duty owed to the testator.
Another issue was whether the solicitor’s failure to provide estate planning advice caused Mr. Calvert to suffer a loss of the estate.
Decisions (Badenach v Calvert)
Trial Court (Tasmanian Supreme Court):
The trial court held that the solicitor owed a duty of care to the testator to make inquiries about family members who could claim under the TFM Act but not to Mr. Calvert as an intended beneficiary. It found no duty to advise the testator about specific steps to avoid a claim unless explicitly asked.
Appeal (Full Court of Tasmania):
The Full Court reversed this, extending the solicitor’s duty of care to include advising the testator about strategies to protect the estate from TFM Act claims, and ruled that this duty also applied to Mr. Calvert. It found that the duty to the testator was coextensive with a duty owed to the intended beneficiary.
High Court of Australia:
The High Court of Australia overturned the Full Court decision. It ruled that the solicitor’s duty was limited to fulfilling the testator’s instructions, which did not include advising on estate planning measures to avoid TFM Act claims. No duty of care was owed to Mr. Calvert because his interests and the testator’s interests were not coincident or aligned in matters beyond the will. Further, there was no evidence that the testator would have acted differently if advised, thus causation was not proven.
Gageler J said:
“The duty of care which a solicitor who is retained to prepare a will owes to a person whom the testator intends to be a beneficiary is more narrowly sourced and more narrowly confined.”
“A solicitor retained to prepare a will can have no duty to a person whom the testator intends to benefit other than to act in the manner and to the extent identified in the testator’s instructions.”
Conclusion – Badenach v Calvert
The High Court allowed the appeal, reinstating the trial court’s decision to dismiss Mr. Calvert’s claim. The solicitor’s duty to the testator did not extend to ensuring the testator’s estate was structured to avoid claims by other family members. The case emphasizes the boundaries of professional responsibility in will preparation and clarifies the limited duty owed to beneficiaries.
References used:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2016/18.html
YOU MIGHT ALSO LIKE:
MORE FROM TORT LAW: