Posted on July 11, 2023
A recent Queensland ruling in Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC has highlighted solicitor’s duties when preparing Wills.
Facts
On 29 November 2002, Mr Boyd, a Queensland solicitor, prepared a Will for Mr Talbot. The Will appointed Mr Bret, a Texas businessman, as sole executor and Mr Talbot’s residuary estate was to be distributed to his beneficiaries in shares.
From late 2007, Mr Talbot had discussions with Mr Boyd regarding updating his 2002 Will. However, this never occurred as Mr Talbot was contemplating the percentage allocations of his residuary estate, amongst other matters.
In 2010, Mr Talbot died in a plane crash in Africa. He was survived by his wife, Ms Talbot, and their two infant children. Mr Talbot also had two adult children from a previous relationship.
When he passed away, Mr Talbot’s sole assets comprised of properties and investments in resource companies in Australia and overseas.
In August 2010, a Grant of Probate was obtained by Mr Bret, the sole executor of the estate.
Ms Talbot disagreed that Mr Bret was acting in accordance with her late husband’s Will. In June 2012, Mr Bret voluntarily renounced his role as executor following a mediation between the parties. With the approval of all beneficiaries, Mr Boyd was appointed as administrator.
In 2015, Ms Talbot became dissatisfied with Mr Boyd’s conduct as an administrator. Ms Talbot sought to have Mr Boyd removed from the role due to his failure to recognise an advantageous time to sell the estate’s shares and maximise her distribution as a beneficiary. Mr Boyd, denied this allegation and informed Ms Talbot that he obtained the advice of stockbrokers in regard to the preferable timings of selling the shares.
In her claim against Mr Boyd, Ms Talbot alleged that he provided negligent advice to her late husband when he was preparing his will.
Boddice J dismissed this claim based on factual findings that Mr Boyd had informed Mr Talbot of the risks of appointing a sole executor who resides overseas. Mr Boyd recommend that Mr Talbot appoint two executors who resided in Australia. Mr Talbot did not accept the advice and instructed Mr Boyd to appoint Mr Bret as his sole executor.
It was further noted that a solicitor’s role is to:
- Obtain instructions;
- To provide advice in relation to those instructions; and
- To prepare the will in accordance with those instructions, even if they are contrary to the solicitor’s advice.
Ms Talbot’s claim was dismissed on the basis that there was no breach of duty by Mr Boyd. This decision is currently being appealed.
Solicitor’s roles
The Court found that Mr Boyd’s retainer had ended once Mr Talbot executed his 2002 Will. The Court held that it is not the solicitor’s responsibility to follow up Mr Talbot in relation to updating his Will. If Mr Talbot sought to amend his Will, the onus was on him to provide Mr Boyd with finalised instructions.
Boddice J also warned solicitors against rushing their clients to execute their Wills as this can be dangerous.
A solicitor must prepare a Will in accordance with their client’s instructions, even if it is opposing their advice. It is best practice for a Solicitor to always outline the risks associated with the client’s decision in writing.
Further, when a client seeks to make a new Will, it is prudent to obtain the client’s instructions and have confirmation that the client has the intention to affect a new Will.
If you have been considering preparing a Will, please contact Scanlan Carroll Lawyers. Our lawyers are professional and knowledgeable and can assist you in preparing a Will that is appropriate to your circumstances.
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