Yesterday, separate from the Court’s usual special leave schedule, the High Court granted special leave to appeal a ruling of the full court of the Supreme Court of Tasmania decided three months ago. (HT: Joel Townsend.) Having recently granted special leave in a NSW case to reconsider the scope and existence of advocates’ immunity from negligence suits in respect of their court work, the new Tasmanian grant raises the scope of solicitors’ liability in negligence for their non-court work, specifically their duty to the beneficiaries of wills they prepare. 

In Calvert v Badenach [2015] TASFC 8, the plaintiff was the sole beneficiary of a will made in 2009 by his step-father. However, when the plaintiff’s step-father died six months later, the plaintiff did not receive all of his half-share of two real estate properties the pair owned, because his step-father’s long estranged daughter successfully sued the estate under Tasmania’s family maintenance statute for $200,000 (and also recovered the costs for her action from the $600,000 estate.) So, the plaintiff sued the solicitors who prepared his step-father’s will in 2009, arguing that they should have advised the pair about the possibility of such a turn of events, which could have been avoided or ameliorated by converting the pair’s shared ownership in the properties from ‘tenancy in common’ to ‘joint tenancy’ (so that the testator’s half share would have gone directly to the plaintiff, rather than via his estate) or by the step-father providing for his estranged daughter in his will.

While the trial judge (Tasmania’s Chief Justice) ruled in the solicitor’s favour (on the grounds that there was no proof that anyone would have acted on the advice the plaintiff said the solicitor should have given), the full court overturned that decision and ordered a fresh hearing on whether or not the plaintiff should be compensated for the lost chance caused by the solicitor’s failure to advise. At yesterday’s hearing, the High Court (consisting of Kiefel and Keane JJ) granted special leave on several grounds, including whether the duty of care that solicitors owe to will beneficiaries extends beyond ensuring that a testator’s will is valid (upheld by the High Court in a 1997 case where Keane J represented the unsuccessful solicitor) to ensuring that the will is also effective; whether the particular duty to advise about ways to avoid family maintenance actions proposed by the plaintiff runs contrary to the policy behind Tasmania’s family maintenance statute; and whether compensation for loss of chance is consistent with Tasmania’s civil liability statute. The case, like the earlier one on advocates’ immunity, is sure to be closely watched by lawyers and those who insure them.