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The Case of Badenach v Calvert

Analysing a Case Study - Badenach v Calvert.

The case of Badenach & Another v Calvert has elicited a lot of response from the legal profession due to its recent decision in the case of professional negligence with respect to legal practitioners and third parties. The legal facts of the case are that: Mr. Jeffrey Doddridge, testator herein, retained the services of Mr. Robert Badenach, Solicitor and Appellant herein, to prepare a will to dispose of all his estate.[1] The instructions given to the Appellant by the testator were that the beneficiary of his estate be the Respondent herein, Mr. Roger Wayne Calvert, the son of the deceased’s de-facto partner.[2] The testator did not avail any other information as to the existence of other family members[3] and the Appellant proceeded with the instructions of the testator and prepared the will leaving all the estate of the testator to the Respondent.

A daughter of the testator from a previous marriage challenged the will and brought an action for family provision proceedings which she succeeded and was awarded provision as well as costs of the suit the result of which amounted to depletion of the estate which was not vast. Upon the successful litigation of the daughter, the Respondent herein sued Badenach and his firm for professional negligence. His argument in support of the claim was that the Badenach failed to properly advice the testator the effects of the will as drawn to other family members with respect to family provisions and the available means of averting such an eventuality.

The Respondent’s specific argument was that Badenach failed to offer legal advice to the testator that converting the testator’s assets and those of the Respondent to make joint tenancy would ensure that the Respondent’s share in the testator’s estate was safeguarded as the assets would have devolved automatically to the Respondent.


Prior to the preparation of the contested will, Badenach’s firm had on previous occasion prepared two wills one of which had contained a testamentary gift to devolve to the daughter.[4] Therefore, Badenach had the means of ascertaining the existence of the daughter.

On trial, the Court dismissed the claim by the Respondent holding that the solicitor’s duty of care extending to inquiring about family members who could bring an action for family provision but was not satisfied, on a balance of probabilities, that the testator would have taken measures to defeat the interests of the family and ensure the Respondent’s interests as the sole beneficiary, were protected.[5]

Legal Facts of the Case

Dissatisfied with this decision, the Respondent appealed to the Supreme Court of Tasmania which appeal succeeded. In finding for the Respondent, the Court held that the Appellant’s duty to the testator went beyond inquiring about the existence of family members and the possibility of instituting family provision proceedings but also included giving advice on the options available to prevent the success of such proceedings. It was decided that this duty to the testator was co-existent with the duty to the beneficiary.[6]

The Appellants appealed to the High Court. The Court allowed this Appeal and guidance was sought in the case of Hill v Van Erp[7] which authority recognized instances under which a duty of care was owed by legal practitioners to intended beneficiaries.[8] The Solicitor caused a will to be witnessed by a spouse of a beneficiary in the said will.[9] This voided the will and made the claim for negligence successful. However, this was distinguished from the instant case in that the will as drafted conformed to the legal requirements.

The legal issue before the High Court was whether the duty of care and professional skill by the Solicitor owed to the client testator by the Appellant by virtue of the client/testator’s retainer extended to the duty to inquire about the existence of any family members and their legal redress in the event that they are exempt from provision of the will as well as duty to advise the client testator of the necessary steps to take to safeguard the interests of the Respondent beneficiary by averting the possibility of raising claims for maintenance through family provision. Faced with this legal issue, another issue arose which was deliberated at length. The issue before court was whether the Solicitor owed a duty of care to the Respondent to carry out the instructions of the testator in a manner that ensured the Respondent was the sole beneficiary to the exclusion of the daughter. [10]This issue was the main issued for determination from the lower court upto to the High Court.


The High Court held that a duty of care was not owed to the Respondent as such a duty would have arisen from the retainer which was testamentary. The argument advanced by the Respondent that the Appellant ought to have advised the testator to convert the properties into joint tenancy distinguishes the testamentary gift as in joint tenancy the property would have devolved to the Respondent by operation of law outside of succession.[11]

Background of the Case

In arriving at its decision, the Court was of the opinion that even if the Appellant owed a duty of care to the Respondent, causation could not have been proved.[12] It was noted by the High Court that it is not enough to allege the existence of a duty of care. The Respondent failed to make a direct link between the loss suffered, that is, not enjoying the estate in its entirety and the failure by the Appellant to advice the testator on the effects of existence of family. The but for principle is the threshold used to assess causation in acts based on tort and having failed in this principle, the Respondent failed to prove his claim on a balance of probabilities.

In determining this case, their Honours were guided by the principle in Hill v Van Erp[13] where the Court established that there are circumstances in which Solicitor owes a duty of care to the intended beneficiary that a breach of such duty will amount to a successful claim for professional negligence. This duty is to be derived from the retainer. However, the authority failed to clarify the duty owed to intended beneficiaries by solicitors. This insufficiency has led to conflicting decisions being made by courts. The lower courts as was the case in the instant case, stretched the duty to exercise care and professional skill from inquiring about the existence of family members and the possibility of instituting family provision proceedings to even advising the testator on the steps to take to avert that eventuality.[14]


The case of Badenach v Calvert may have cured some of the problems that previous judicial decisions have had to deal with or created. For instance, the confusion on whether a solicitor must advise on severing a joint tenancy as was the case in Smeaton v Pattison.[15] The scope of the duty is to be derived from the retainer thus, the Solicitor is required to act within the context of the retainer (whether oral, implied or express). Certain acts by solicitors will however be held to be negligent even after the delivery of the Judgment in the instant case. Such actions are solicitor’s conduct that is so reckless that it invalidates the will or a testamentary gift. A good example is the case of the spouse of a beneficiary attesting to the execution of a will. The second reason is the failure to take reasonable steps to find and inform the executor of the existence, contents of the will, and its location. A violation of this duty is a violation of the testator’s testamentary wishes to dispose of his estate in the manner in which he intended. The other reason is failure by the solicitor to produce the will within the timeframe agreed upon pursuant to the retainer or in the absence of a retainer, to a reasonable time to be determined by the circumstances of each individual case.[16]

Court's Decision and Rationale

This case has set the threshold for determining the extend of a solicitor’s duty of care and professional skill to a third-party beneficiary. This is because the High Court was of the view that the duty owed to a client cannot be overridden by the rights and duties owed to a client which are inconsistent with those of the testator client. That in the case of a testator and beneficiary the rights and duties under the will are deemed to be coincident otherwise, the duty owed to the third-party beneficiary extinguishes.[17]


The facts of the instant case and eventually the judgement of the High Court relieve legal practitioners of any obligations to conjure up means of averting any possible claims for family provision while drafting a will for disposition of the client’s estate.[18] Most of the solicitors as a matter of good practice give advice on the issue of other family members and their remedies should they be exempt from provision by the will. The Court was of the view that a solicitor should advise the client best means of dealing with his assets prior to his death to ensure that after death, the execution will proceed in the manner the testator anticipated.[19] This however does not extinguish the possibility of challenging a will no matter what measures a solicitor undertakes to deliver the client’s wishes.

Cases

Badenach v Calvert [2016] HCA 18

Hill v Van Erp [1997] HCA 9; 188 CLR 159; 71 ALJR 487; 142 ALR

Smeaton & Ors v Pattison [2003] QCA 341

Other Sources

Badenach V Calvert: Explaining The Scope Of A Solicitor’S Duty To An Intended Beneficiary In A Will | Browne Linkenbagh Legal Services (2017) Browne Linkenbagh Legal Services <https://brownelinkenbaghlegalservices.com.au/badenach-v-calvert-explaining-the-scope-of-a-solicitors-duty-to-an-intended-beneficiary-in-a-will/>

Badenach V Calvery [2016] HCA 18 - Barry.Nilsson. Lawyers (2017) Bnlaw.com.au <https://www.bnlaw.com.au/page/insights/insurance_alerts/professional_indemnity_financial_lines/badenach_v_calvery_2016_HCA_18/>

Beneficiaries’ Considerations When Drafting A Will - Rostron Carlyle (2017) Rostron Carlyle <https://rostroncarlyle.com/publications/beneficiaries-considerations-when-drafting-a-will/>

Clark, Martin, Badenach V Calvert | Opinions On High (2017) Blogs.unimelb.edu.au <https://blogs.unimelb.edu.au/opinionsonhigh/2016/05/11/badenach-case-page/>

KWM | A Solicitor’S Duty Of Care From Cradle To Grave: Badenach V Calvert [2016] HCA 18 (2017) Kwm.com <https://www.kwm.com/en/au/knowledge/insights/solicitors-duty-of-care-from-cradle-grave-third-parties-20160520>

Moschella, Adam, Solicitors Duty Of Care To Intended Beneficiaries - Macrossan & Amiet Solicitors (2017) Macrossan & Amiet Solicitors <https://www.macamiet.com.au/2016/06/10/solicitors-duty-care-intended-beneficiaries-/>

STEP Australia | Badenach V Calvert – The High Court Provides Peace Of Mind For Estate Lawyers (2017) Stepaustralia.com <https://stepaustralia.com/2016/10/22/the-high-court-provides-peace-of-mind-for-estate-lawyers/>

The Lawyer’S Duty To The Will Maker - 2 Wentworth | Sydney Barristers (2017) 2 Wentworth | Sydney Barristers <https://2wentworth.com.au/lawyers-duty-will-maker/>

Ibid. Ibid.

Supra n 1.

Beneficiaries’ Considerations When Drafting A Will - Rostron Carlyle (2017) Rostron Carlyle <https://rostroncarlyle.com/publications/beneficiaries-considerations-when-drafting-a-will/>.

Adam Moschella, Solicitors Duty Of Care To Intended Beneficiaries - Macrossan & Amiet Solicitors (2017) Macrossan & Amiet Solicitors <https://www.macamiet.com.au/2016/06/10/solicitors-duty-care-intended-beneficiaries-/>.

(1997) 188 CLR 159

STEP Australia | Badenach V Calvert – The High Court Provides Peace Of Mind For Estate Lawyers (2017) Stepaustralia.com <https://stepaustralia.com/2016/10/22/the-high-court-provides-peace-of-mind-for-estate-lawyers/>.

The Lawyer’S Duty To The Will Maker - 2 Wentworth | Sydney Barristers (2017) 2 Wentworth | Sydney Barristers <https://2wentworth.com.au/lawyers-duty-will-maker/>.

KWM | A Solicitor’S Duty Of Care From Cradle To Grave: Badenach V Calvert [2016] HCA 18 (2017) Kwm.com <https://www.kwm.com/en/au/knowledge/insights/solicitors-duty-of-care-from-cradle-grave-third-parties-20160520>.

Badenach V Calvery [2016] HCA 18 - Barry.Nilsson. Lawyers (2017) Bnlaw.com.au <https://www.bnlaw.com.au/page/insights/insurance_alerts/professional_indemnity_financial_lines/badenach_v_calvery_2016_HCA_18/>.

Martin Clark and View &rarr;, Badenach V Calvert | Opinions On High (2017) Blogs.unimelb.edu.au <https://blogs.unimelb.edu.au/opinionsonhigh/2016/05/11/badenach-case-page/>.

[1997] HCA 9.

Badenach V Calvert: Explaining The Scope Of A Solicitor’S Duty To An Intended Beneficiary In A Will | Browne Linkenbagh Legal Services (2017) Browne Linkenbagh Legal Services <https://brownelinkenbaghlegalservices.com.au/badenach-v-calvert-explaining-the-scope-of-a-solicitors-duty-to-an-intended-beneficiary-in-a-will/>.

[2003] QCA 341.

Supra n 14.

Martin Clark and View &rarr;, Badenach V Calvert | Opinions On High (2017) Blogs.unimelb.edu.au <https://blogs.unimelb.edu.au/opinionsonhigh/2016/05/11/badenach-case-page/>.

Ibid. 

Supra n 18.

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