Miller v Cooney

This appeal concerned a claim brought by the executor of the estate of the late Marcia Gladys Miller against her solicitor, Mr. Cooney. The executor alleged that the solicitor had breached his duty of care in preparing Mrs. Miller's will. The dispute centred on whether the solicitor had taken reasonable care to ascertain the true ownership of certain property that Mrs. Miller purported to dispose of in her will, and whether he had a duty to investigate instructions given for a previous will. The appeal was heard by Sheller, Hodgson and Santow JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the solicitor's retainer extended to verifying the ownership of the property Mrs. Miller sought to bequeath, and whether the solicitor ought to have made further inquiries regarding the ownership of that property, given the circumstances and the instructions provided for a prior will. The court was also required to consider the evidence presented regarding the usual practices of solicitors in such matters.

The Court of Appeal found that the solicitor had acted within the scope of his retainer and that there was no evidence to suggest that he had failed to exercise reasonable care. The court noted that the solicitor had relied on the instructions given by his client, who was the registered owner of the property. While the solicitor was aware of a previous will, the court held that it was not incumbent upon him to conduct an independent investigation into the ownership of the property beyond what was indicated by his client's instructions and the information available to him. The court considered the usual practices of solicitors and concluded that the solicitor's conduct was consistent with those practices.

The appeal was dismissed, and the court ordered that Roy Miller, the husband of the deceased appellant, be appointed to represent her estate for the purposes of the appeal. The respondent was awarded costs.