Hill v Van Erp

The High Court of Australia considered a claim in negligence brought by Mrs. Hill against her former solicitor, Mr. Van Erp. Mrs. Hill alleged that Mr. Van Erp's negligence in preparing her will caused her to suffer economic loss. Specifically, she claimed that the solicitor failed to ensure that her husband, who was a beneficiary under the will, did not witness its execution. This failure resulted in the gift to her husband being voided under the relevant legislation, meaning Mrs. Hill's estate would pass to other beneficiaries, contrary to her intentions.

The central legal issue before the High Court was whether a solicitor owes a duty of care to an intended beneficiary of a will, with whom the solicitor has no direct contractual relationship, to ensure the will is validly executed and that the intended beneficiaries receive their intended benefit. The court also had to consider the nature of the economic loss suffered by the disappointed beneficiary and whether the solicitor's negligence had caused that loss.

The High Court, by majority, held that a solicitor does owe a duty of care to an intended beneficiary in such circumstances. The court reasoned that there was sufficient proximity between the solicitor and the intended beneficiary to establish a duty of care, even in the absence of a contract. This duty arises from the solicitor's undertaking to prepare the will and the foreseeable reliance by the intended beneficiary on the solicitor's competence. The court found that the economic loss suffered by Mrs. Hill, being the loss of the intended benefit under the will, was a type of loss for which the law of negligence could provide a remedy. The failure to ensure the proper witnessing of the will was a direct cause of the intended gift failing.

The appeal was dismissed with costs.