Does a solicitor taking instructions to draw a will owe a duty of care to beneficiaries

Date: May 09, 2013
Document Type: Article

It is settled law that a solicitor retained to draw a will and ensure that the will drawn up takes effect in accordance with its terms owes a duty of care to an intended beneficiary under the will. That duty gives rise to a duty to exercise reasonable care and skill in performance of those tasks – High Court decision of Hill v Van Erp 1977 HCA 9.

A solicitor retained to draw up a will owes a duty to the willmaker to exercise reasonable care and skill in the performance of the retainer.

The duty owed to intended beneficiaries cannot be in conflict or at odds with the duty owed by the solicitor to the willmaker and it is always subject to the willmaker’s expressed instructions. Were it otherwise the solicitor could not fulfil both the duties owed to the willmaker and the duties owed to intended beneficiaries.

The solicitor drawing the will owes no duty to a potential beneficiary left out of a will on the instructions of the willmaker. That disappointed beneficiary might have a claim against the estate but has no claim against the solicitor who drew the will pursuant to the willmaker’s instructions.

In most cases as observed in the High Court case of Hill v Van Erp the interest of the willmaker and the intended beneficiaries are not in conflict.

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