Calvert v Badenach

The appeal in *Calvert v Badenach* concerned a dispute between a nominated beneficiary under a will and the executors of the testator's estate. The nominated beneficiary alleged that the executors had breached their duty to the testator by failing to take reasonable steps to preserve the testator's intended testamentary dispositions, thereby diminishing the value of the estate and the beneficiary's inheritance. The matter was heard in the Court of Appeal of Queensland.

The central legal issue before the Court of Appeal was whether the executors owed a duty to the testator to take reasonable steps to give proper effect to the testator's intentions, and whether this duty extended to advising on and implementing strategies to minimise the risk of a family provision claim against the estate. Specifically, the court had to determine if the executors' failure to deal with certain assets before the testator's death, which subsequently became subject to a family provision claim, constituted a breach of their duty.

The Court of Appeal held that a solicitor acting as an executor owes a duty to the testator to exercise reasonable care and skill in administering the estate and giving effect to the testator's testamentary intentions. This duty includes advising the testator on potential family provision claims and the means available to minimise the risk of such claims, which may involve dealing with assets before death. The court found that the executors had failed to discharge this duty, as their actions and omissions led to a reduction in the value of the estate available to the nominated beneficiary due to a successful family provision claim.

Consequently, the Court of Appeal allowed the appeal, set aside the judgment entered for the respondents at trial, and ordered that judgment be entered for the appellant against the respondents for damages to be assessed. The assessment of damages was remitted to a single judge other than the trial judge.