Badenach v Calvert

The case involved a dispute between Mr Calvert, the intended beneficiary of a will, and Mr Badenach, the solicitor who prepared the will for the testator, Mr Doddridge. Mr Doddridge had instructed Mr Badenach to prepare a will leaving his entire estate to Mr Calvert. After Mr Doddridge's death, his daughter successfully brought proceedings under the *Testator's Family Maintenance Act 1912* (Tas) for provision out of the estate. Mr Calvert then sued Mr Badenach, alleging negligence. The primary judge found that the solicitor breached his duty of care to the testator but not to Mr Calvert. The Full Court of the Supreme Court of Tasmania disagreed, finding that the solicitor breached his duty of care to both the testator and Mr Calvert, and that Mr Calvert suffered loss due to a lost chance that the testator might have taken steps to avoid the claim. The matter proceeded to the High Court of Australia.

The High Court was required to determine whether the solicitor's duty of care to the testator extended to advising the testator on steps to avoid his estate being subject to a claim under the *Testator's Family Maintenance Act*. It also had to consider whether the solicitor owed a duty of care to the intended beneficiary, Mr Calvert, and if so, whether the circumstances of the retainer supported such a duty, particularly in light of the decision in *Hill v Van Erp*. Finally, the court needed to assess whether, assuming a breach of duty, causation was established, and if the relevant loss was a loss of a chance.

The High Court allowed the appeal, finding that the solicitor's duty of care was confined to his client, the testator, and did not extend to the intended beneficiary, Mr Calvert. The court distinguished the present case from *Hill v Van Erp*, noting that the specific circumstances supporting a duty of care to a third party in that case were absent here. The retainer was limited to preparing a will as instructed, and the solicitor was not retained for general estate planning advice or to advise on avoiding claims under the *Testator's Family Maintenance Act*. The court held that the solicitor did not owe a duty to Mr Calvert to advise the testator on how to prevent his estate from being subject to a statutory claim.

Consequently, the High Court allowed the appeal with costs, setting aside the orders of the Full Court of the Supreme Court of Tasmania. In their place, the High Court ordered that the appeal from the decision of the primary judge be dismissed with costs, effectively reinstating the primary judge's finding that Mr Calvert's action in tort should be dismissed.