Negligence—Duty of care—Solicitor—Will held by solicitor—Failure to inform executor of death of testator and of contents—Whether duty to do so—Loss to estate caused by executor's ignorance of death—Measure of damages. Limitation of Actions—Tort—Accrual of cause of action—Running of time—Commencement—Breach by solicitor of duty of care to inform executor of testator's death—Loss to estate caused by executor's ignorance of death—Limitation Act 1969 (N.S.W.), s. 14(1).
Decisions
MASON C.J. AND WILSON J: We have had the advantage of reading the reasons for judgment prepared by Deane J. Although we have reached a different ultimate conclusion, the extensive discussion by his Honour of many aspects of the case relieves us from traversing much of the ground. We agree with the substance of all that his Honour has written, save with respect to the matter to which we now refer.
2. This matter is fundamental to the resolution of the case. Deane J. concludes that, in failing to take any positive steps to locate the executor, Mr Hawkins, during the period of more than six years after the death of the testatrix in circumstances where a few phone calls would have sufficed to locate him, the respondents failed to discharge the duty of care which it owed to him as the executor of her estate. His Honour finds the source of that duty of care to rest in the relationship of proximity existing between the respondents and the testatrix (and Mr Hawkins, in his capacity as executor) combined with the foreseeability of a risk of damage arising from a failure to take reasonable care.
3. It is clear that any relationship of proximity that exists in this case would not have arisen but for the professional relationship between the respondents and the testatrix. In determining the precise nature of the relationship giving rise to the alleged duty of care, we find it helpful to start with the contract under which the will was drawn and retained in the custody of the respondents. It is that contract which "indicate(s) the nature of the relationship that gives rise to the common law duty of care" (Central Trust Co. v. Rafuse (1986) 31 DLR (4th) 481, at p 521). Cf. Bowen v. Paramount Builders (1977) 1 NZLR 394, per Richmond P., at p 407. It was said by Windeyer J. in Voli v. Inglewood Shire Council (1963) 110 CLR 74, at p 85, in the context of ascertaining the duty of care which an architect owes to one who is a stranger to the contract between the architect and the building owner, that the contract "is not an irrelevant circumstance. It determines what was the task upon which (the architect) entered". So it is here. In the case of solicitors, the remarks of Oliver J. in Midland Bank v. Hett, Stubbs and Kemp (1979) Ch 384, at…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hawkins v Clayton [1988] HCA 15
Case
[1988] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the case of *Hawkins v Clayton*, brought by the plaintiff, Ms. Hawkins, against the defendant, Mr. Clayton, the executor of the estate of the late Mr. L. J. Clayton. The dispute concerned the plaintiff's claim for damages for breach of contract and negligence arising from the defendant's failure to properly attend to the deceased's affairs, specifically in relation to the execution of a will.
The central legal issues before the High Court were whether the defendant owed a duty of care to the plaintiff in his capacity as executor and potential beneficiary of the deceased's will, and if so, whether that duty had been breached. The court also had to determine whether any such breach caused the plaintiff loss, and if so, the appropriate measure of damages.
The High Court, by majority, held that the executor of a will does not owe a duty of care to a potential beneficiary in relation to the preparation or execution of the will. The majority reasoned that the executor's duty is owed to the testator and the estate, not to third parties who may benefit from the will. To impose such a duty would create a conflict of interest and potentially undermine the executor's primary obligations. The court distinguished this situation from cases where a solicitor owes a duty of care to a client who is the intended beneficiary of a will they are preparing.
The High Court therefore found in favour of the defendant, dismissing the plaintiff's claim.