Tuesday, March 29, 2022

Don't want to talk about life or death?** - do not be an estate planning lawyer then

Posts over recent weeks have considered the fact that in the estate planning context, lawyers can owe a duty of care to disgruntled beneficiaries for negligence in acting on estate planning instructions.

The decision in Maestrale v Aspite [2012] NSWSC 1420 provides another example in this regard.

In this case a beneficiary received less than would have been the case had the instructions provided to the lawyer by the deceased seven days before death (at a time when he was terminally ill), been implemented. Somewhat tragically, the lawyer arrived to meet the willmaker to review and sign the will prepared 10 minutes after the willmaker had died.

Relevantly, the court confirmed:
  1. By accepting instructions for a will, a lawyer enters upon the task of effecting compliance with the formalities necessary to transfer property from a willmaker 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. Therefore, a lawyer who fails to exercise reasonable care whereby the formalities are not complied with (and the intended beneficiary thereby loses the property), will be liable in negligence (see Hill trading as R F Hill & Associates v Van Erp (1997) 188 CLR 159).
  2. Defects in a lawyer'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 willmaker directly.
  3. This said, in the absence of indication from the willmaker that they want to sign a proposed will, then there will not be any duty of care owed by a lawyer to a potential beneficiary of the draft will. This is even the case where lawyers have acted in a manner that, in other fact situations, might be held to have been unduly dilatory, so long as the case is one where the lawyer's conduct can be said to be within acceptable limits to indecisive instructions from a difficult client who is stalling (see Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 093).
  4. In this case then, the breach of duty by the lawyer did not reside as such in an unduly dilatory approach to preparation of the will by allowing the passage of seven days before the will was prepared, but rather in the lawyer's failure to respond to the aggrieved beneficiary's urgent phone calls for advice and attention in the intervening seven day period.
  5. This was particularly so given the lawyer had failed to keep proper file notes and had also failed to arrange for an informal or temporary interim will to be created - which would have likely avoided all the subsequent issues that arose.
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** for the trainspotters, the title today is riffed from a line in the Waterboys song 'A girl called Johnny'.

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