MILLER & ORS v COONEY & ORS t/as HOWARD COONEY HARVEY

LOWER COURT District Court JURISDICTION : LOWER COURT 1455/02 FILE NUMBER(S) : LOWER COURT Certoma ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40106/04 DC 1455/02

SHELLER JA HODGSON JA SANTOW JA MILLER & ORS v COONEY & ORSt/as HOWARD COONEY HARVEY

Mr Alwyn and Mrs Joyce Ruth Lalor were the owners and joint tenants of a property known as 690 Gowings Hill Road, Kalateenee and another property known as 83 Broughton Street, Kempsey. On 19 August 1999, Joyce Ruth Lalor died. On her death, these two properties passed to Mr Lalor, as the surviving joint tenant.

Mr and Mrs Lalor had executed wills on 18 May 1989 and Mrs Lalor had executed another will on 19 January 1993. On 7 April 1998, Mr and Mrs Lalor instructed Mr Cooney, a partner in the firm of Howard, Sheridan, Cooney and Harvey to make some changes to their existing wills and consequently new wills were prepared for Mr and Mrs Lalor to sign.

By this new will, executed on 7 April 1998, Mrs Lalor provided that the Katateenee and Kempsey properties be divided between various family members identified in clauses 3 and 4. However, because the properties were held by Mrs Lalor jointly with Mr Lalor, neither clauses 3 or 4 were effective.

On 14 March 2002, the sister, nieces and nephews of Mrs Lalor named as beneficiaries in her will, commenced proceedings in the District Court against Mr Cooney and members of the firm claiming damages for negligence in failing to exercise due care and skill in drafting Mrs Lalor's will to the standard of a competent solicitor, and in failing to take care to ensure that effect was given to the testamentary intentions of Mrs Lalor.

His Honour Acting Judge Certoma entered judgment for the defendants. His Honour held that it was going beyond the solicitor's retainer to check the instructions given for a previous will that was being amended and that it was only important to ascertain what property formed part of the estate if there was any doubt about this at the time instructions were obtained.

On appeal to this Court, the appellant submitted that the trial Judge was in error in concluding that the respondents acted reasonably and were not in breach of their duty of care to draw an effective will and further, in finding that it was not reasonably foreseeable that the respondents' conduct might result in injury to the beneficiaries under the will. The appellants contended that the respondents' retainer required further enquiry in relation to the properties being disposed off. It was also submitted that the trial Judge erred in preferring the expert evidence of Mr Moses to that of Ms Suttor.

Held: per Sheller JA, Hodgson and Santow JJA agreeing:

1. A solicitor preparing a will for a client upon the client's instructions to include a testamentary disposition in favour of particular beneficiaries is under a duty to take reasonable care to give effect to the client's intentions.

Hill v Van Erp (1997) 188 CLR 159. 2. Mr Cooney was not aware and had no reason to believe that Mrs Lalor was not the registered proprietor of the Katateenee and Kempsey properties. The claim by the intended beneficiaries of Mrs Lalor's will depended upon their showing that Mr Cooney was under a duty to make inquiry about the ownership of the properties.

3. It was open to the trial Judge to prefer the opinion expressed by Mr Moses that the usual practices of a solicitor in particular circumstances were governed to a large extent by the solicitor's retainer and the nature of the instructions.

Permanent Trustee Australia Ltd v Boulton & Lynjoe Pty Ltd (1994) 33 NSWLR 735 applied.

4. The testator's instructions were merely to alter the beneficiaries in a previous will, which was obviously drawn by a lawyer, and the wills of the testatrix and her husband were not inconsistent with the subject properties being owned by the deceased. There was nothing to suggest to Mr Cooney that the previous wills were incorrect nor was it put to Mr Cooney that there was any evidence to lead him to suspect that Mrs Lalor was not capable of understanding what property she owned.

Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 distinguished; White v Jones [1995] 2 AC 207 distinguished;

Carr-Glynn v Frearsons [1999] Ch 326 distinguished.

5. It was therefore open to the trial Judge to find that the solicitor acted reasonably and was not in breach of his duty of care to draw an effective will by failing, in the circumstances, to enquire further about the deceased's ownership of the properties in question.

Succession Act 1981 (Queensland) Wills Probate and Administration Act 1898

Carr-Glynn v Frearsons [1999] Ch 326 Curneck v Nitschke [2001] NSWCA 176 Erl v Wilhelm (1998) 2 WWR 522 Hawkins v Clayton (1988) 164 CLR 539 Heydon v NRMA Limited (2000) 36 ACSR 462 Hill v Van Erp (1997) 188 CLR 159 Permanent Trustee Australia Ltd v Boulton & Lynjoe Pty Ltd (1994) 33 NSWLR 735 Waimond Pty Ltd v Bryne (1989) 18 NSWLR 642

ORDERS 1. For the purposes of this appeal, Roy Miller, the husband of the deceased appellant, Marcia Gladys Miller, be appointed to represent her estate. 2. Appeal dismissed with costs. **********

in THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40106/04 DC 1455/02

SHELLER JA HODGSON JA SANTOW JA

Monday, 1 November 2004 MILLER & ORS v COONEY & ORS t/as HOWARD COONEY HARVEY Judgment 1 SHELLER JA:

On 19 August 1999 Joyce Ruth Lalor died. She was survived by her husband, Alwyn Lalor, who died on 9 July 2001. Mr and Mrs Lalor were, and had since 11 November 1974 been, the owners as joint tenants of a property known as 690 Gowings Hill Road, Kalateenee. They were also and had since 3 May 1984 been the owners as joint tenants of another property known as 83 Broughton Street, West Kempsey. On the death of Mrs Lalor these two properties passed to Mr Lalor as the surviving joint tenant. 2 Mr and Mrs Lalor had executed wills on 18 May 1989. Mrs Lalor executed another will on 19 January 1993. On 7 April 1998, Mr and Mrs Lalor instructed Chris Cooney, a partner in the firm of Howard, Sheridan, Cooney and Harvey to make some changes to their existing wills. Mr Cooney carried out those instructions by preparing new wills for Mrs Lalor and for Mr Lalor to sign. 3 By her will, which was executed on 7 April 1998, after revoking former wills and testamentary dispositions, Mrs Lalor appointed Mr Lalor, her sister, Marcia Gladys Miller and her sister, Beryl Slavin, or the survivor of them to be her executors and trustees and in clauses 3 and 4 provided as follows: "3. I DIRECT that my farm property situated at and known as 690 Gowings Hill Road, Kalateenee, my plant, machinery and stock be sold and after deduction of selling costs and payment of my just debts funeral and testamentary expenses I GIVE AND BEQUEATH the remainder as follows:- (a) A one-fifth (1/5th) share as tenant in common to my husband ALWYN BARTLEY LALOR ; (b) A one-fifth (1/5th) share as tenant in common to my sister MARCIA GLADYS MILLER ; (c) A one-fifth (1/5th) share as tenant in common to my niece TRACIE BOOBY ; (d) A one-fifth (1/5th) share as tenant in common to my nephew JASON MILLER ; (e) A one-fifth (1/5th) share as tenant in common to my nephew WILLIAM MILLER . 4. I GIVE AND DEVISE my house property and its contents situated at 83 Broughton Street, West Kempsey to my husband ALWYN BARTLEY LALOR for and during his lifetime and thereafter I DIRECT that the said property be sold and that the net proceeds therefrom be divided between the following persons in the following shares:- (a) A one-seventh (1/7th) share as tenant in common to my nephew JASON MILLER ; (b) A one-seventh (1/7th) share as tenant in common to my nephew WILLIAM MILLER ; (c) A one-seventh (1/7th) share as tenant in common to my niece VICTORIA PETERS ; (d) A one-seventh (1/7th) share as tenant in common to my sister MARCIA GLADYS MILLER ; (e) A one-seventh (1/7th) share as tenant in common to my husband's nephew JASON POTTER ; (f) A one-seventh (1/7th) share as tenant in common to my husband's nephew TERRY JOHN POTTER ; (g) A one-seventh (1/7th) share as tenant in common to my niece ELLEN SLAVIN ." 4 Of course, because the Gowings Hill Road property and the Broughton Street property were held by Mrs Lalor jointly with Mr Lalor, neither clause 3 nor clause 4 was effective. Mrs Lalor gave the rest and residue of her estate to her niece Ellen Slavin and to her niece Tracie Booby as tenants in common in equal shares. 5 On 7 April 1998, Mr Lalor apparently also executed a will prepared on his instructions by Mr Cooney. An executed copy of that will is not in the appeal papers. By that will, having revoked all former wills and testamentary dispositions, Mr Lalor gave his estate as follows: "2. PROVIDED my wife JOYCE RUTH LALOR does not predecease me and survives me by a period of one (1) calendar month from the date of my death THEN I APPOINT her to be Executrix of this my Will and I GIVE DEVISE AND BEQUEATH the whole of my Estate both real and person unto her absolutely. 3. IN THE EVENT of my wife JOYCE RUTH LALOR not surviving me by a period of one (1) calendar month from the date of my death THEN I APPOINT my nephew TERRY JOHN POTTER to be Executor and Trustee of this my Will (hereinafter called my Trustee) AND I GIVE DEVISE AND BEQUEATH the whole of my Estate as aforesaid to my nephew JASON POTTER and my nephew TERRY JOHN POTTER in equal shares as tenants in common."

District Court proceedings 6 On 14 March 2002, Marcia Gladys Miller, Jason Miller, William Miller, Tracie Ann Booby, Victoria Jane Peters and Ellen Louise Slavin began proceedings in the District Court against Mr Cooney and members of his firm claiming damages for negligence in failing to exercise due care and skill in drafting Mrs Lalor's will to the standard of a competent solicitor, and in particular to take care to ensure that effect was given to the testamentary intentions of Mrs Lalor. The plaintiffs were the sister, nieces and nephews of Mrs Lalor named as beneficiaries in her will. Mr Lalor's two nephews, who were beneficiaries named in the will, were not parties. The particulars of negligence were as follows: "a. Failure to verify that the deceased was either sole registered proprietor or a registered proprietor as tenant in common of the properties. b. Failure to ascertain by title search or otherwise the precise nature and extent of the deceased's interest in the properties. c. Failure to advise the deceased to sever the joint tenancy with respect to each property and of the need to sever the joint tenancy in order to make the bequests referred to in paragraph 4 effective. d. Failure to take such steps as would be effective to sever the joint tenancy with respect to each property. e. Failure to advise the deceased of the need to verify the precise nature and extent of her interest in the property. f. Failure to ensure that effect was given to the deceased's testamentary intentions." 7 His Honour Acting Judge Certoma heard the proceedings and entered judgment for the defendants. The trial Judge found that Mr Cooney received instructions from Mr and Mrs Lalor to make changes to their existing wills, which had been drafted by someone other than Mr Cooney and his firm. Mr Cooney had never met Mr or Mrs Lalor before taking instructions from them on this occasion. Mr Cooney said that when he took instructions, Mrs Lalor had in her possession a bundle of documents, including her and her husband's wills which were typed and, he believed, signed. She instructed Mr Cooney that certain of the beneficiaries, named in two specific gifts in her will, be deleted and replaced with new ones, and, that a further residuary beneficiary be added to the gift of residue. Mr Cooney said that in substance Mrs Lalor's instructions were limited to deleting certain beneficiaries and adding others, as was reflected in his file notes, which were tendered in evidence. Mrs Lalor did not instruct him to do anything else. 8 Mr Cooney said he was also instructed to make some changes to Mr Lalor's will. According to Mr Lalor's draft will in evidence, Mr Lalor appointed Mrs Lalor as his executrix and his nephew as the substitute executor in the event that his wife predeceased him. These were in substance the changes Mr Cooney made to Mr Lalor's will. Mr Lalor left his estate to his wife if she survived him by one month and otherwise to his nephews Jason Potter and Terry John Potter. Though Mr Lalor's will dealt with the contingency of Mrs Lalor predeceasing him, Mrs Lalor's will did not deal with, nor did Mr Cooney recollect discussing the contingency of Mr Lalor predeceasing his wife. The file notes reflect that there was no such discussion. The instructions to make the changes were substantially given by Mrs Lalor in the presence of her husband, who confirmed the instructions relating to his will. Mr Cooney gave effect to these instructions by making new wills. He copied them from the existing wills. The changes he was asked to make were incorporated. He did not keep the original wills from which the changes were made. Mr Cooney said that nothing in Mrs Lalor's demeanour or otherwise gave rise to any doubt about his instructions or Mrs Lalor's capacity to give them. 9 By letter dated 9 April 1998 Mr Cooney thanked Mr and Mrs Lalor for their instructions to prepare "new wills". He enclosed a memorandum of fees. The fees were discounted from $150 to $75 because Mr Cooney was only making changes to existing wills. Mr Cooney chose to give effect to his instructions by drafting new wills rather than codicils. He said he made new wills that were different to the wills that Mr and Mrs Lalor had before. He did not know the circumstances in which Mrs Lalor's previous will was made. He saw his duty as being to reflect the instructions he was given to make changes to Mrs Lalor's will by substituting certain beneficiaries for others. Mr Cooney regarded himself as limited by the instructions he received. Because she had an existing will he did not recollect discussing the ownership of property with Mrs Lalor and did not take any steps to ascertain if she was the owner of the properties. He accepted her instructions and said there was no reason to disbelieve that she owned the properties in question. 10 In answer to interrogatories, Mr Cooney said that at the time the will was made, neither he nor his firm had the possession, custody or control of any certificates of title to the properties. 11 Mrs Jeannette Marie O'Loughlin, who the plaintiffs called to give evidence, stated she knew Mrs Lalor from the mid-1960s and Mr Lalor from 1986 when he moved to Kempsey. She recalled Mrs Lalor discussing how she would leave her property on about four or five occasions, including one occasion six months before her death when Mrs Lalor told her she had made a new will. On each occasion, Mrs Lalor said she would leave her property and that her husband "would be looked after" and live out his life in the house property. Mrs O'Loughlin was aware that Mr Lalor owned the farm property for many years and that, after he had some difficulties, Mrs Lalor bought part of the property from him. She said quite definitely that Mrs Lalor always and adamantly described the farm property as "her farm" and the house as "her house". 12 Judge Certoma regarded the facts as straightforward. He observed, and this was not challenged, that the original will was clearly drawn by a lawyer. He said "this, though not in evidence, is clear from the language and form of the original will, which was copied by Mr Cooney in drawing Mrs Lalor's will." His Honour found that it was clearly established that there was no discussion between Mr Cooney and Mrs Lalor regarding the ownership of any of her property and that Mr Cooney did not take any steps to ascertain its ownership. There was no evidence to suggest that Mr Cooney or his firm had previously acted for Mrs Lalor or that they held any document which would have disclosed the ownership of the property. Mr Cooney regarded his instructions as limited to making the changes instructed by the deceased. 13 Two experts were relied upon. The expert relied upon by the plaintiffs was Ms Pamela Gaibrielle Suttor, who prepared a statement dated 5 June 2003. Ms Suttor was admitted as a solicitor in New South Wales in 1963 and had been in full time practice since then. She had always practised in the area of wills and estates. In 1995 she became an accredited wills and estates law specialist. She described her work in that area as involving will drafting, obtaining grants of probate and letters of administration and other special limited grants. She had acted in contested litigation matters concerning family provision issues, contested wills including testamentary capacity cases, informal wills under s18A of the Wills Probate and Administration Act 1898 and the rectification of wills. She had been and was involved with professional associations, in particular the Accredited Wills and Estates Specialists Group. In 1999, she chaired the Law Society's Probate Task Force and continued as a member. In 1999, she also chaired the Law Society's Property Committee. During 2003 she prepared and delivered seminars in the area of wills and estates for, amongst others, the College of Law and the NSW Young Lawyers (Law Society of NSW). 14 In her statement Ms Suttor set out the assumptions she had made which accord with the facts as I have recounted them. Based on these assumptions, her reading of the supporting documents and her knowledge of good practice in the area of wills and estates, she formed an opinion as follows: "A prudent and competent solicitor acting for Mrs Lalor in the drawing and subsequent execution of her 1998 will would have verified that she in fact had a separate interest in the two properties which she could dispose of by will. This verification could have been done by: i. Inspection of the solicitor's strong room deeds packet if that is in fact where the title deeds were, or ii. Request of the client to let him have the Certificate of Title for inspection as to the manner of the joint holdings, or iii. A formal title search. Each of those steps involved little time or financial expenditure. If it became apparent in the course of taking instructions for drafting the Will that the Testator's interest in the property to be disposed of by Will was as joint tenants in about April 1998 a prudent and competent solicitor would have advised: i. That the disposition could only take effect if the deceased survived the other joint tenant. ii. Used words in the will to convey this such as 'my right title and interest if any in X property'. iii. That it was possible to sever the joint tenancy during the joint lives at little cost and without payment of stamp duty so that irrespective of the order of deaths the deceased would have had at least one half of the property able to be disposed of by will. This would also be the case if the testator's instructions were only to make changes to a previous Will limited to deleting certain beneficiaries and substituting others." 15 At the trial, counsel for the defendants objected to Ms Suttor's statement. It was pointed out that Ms Suttor had not made any particular assumption as to the nature of the retainer involved and also that Ms Suttor did not define what she meant by good practice. Ultimately, counsel apparently decided to allow the document to be admitted subject to the proof of underlying assumptions. On that basis, it was admitted. Ms Suttor did not give oral evidence. 16 The defendants' relied upon a statement of 13 February 2003 and a letter of 7 July 2003 from a solicitor, Neville James Moses, who has been in practice as such in New South Wales since 1963. Mr Moses outlined his history in practice and said that in his many years of practice he had acted for many clients drawing wills on their behalf including, in particular, husbands and wives who have no children and who may wish to provide for a division of their jointly owned property on the death of the survivor of them so that their jointly owned property is divided between the relatives of the respective spouses. Mr Moses said that in his experience this occurred most often in situations where couples were recently married and had no children but it also occurred in elderly people with marriages of long standing who had no direct heirs. Mr Moses said: "10 However, I would point out that the question of usual practice of a solicitor in particular circumstances is governed to a large extent by the solicitor's retainer and the nature of the instructions received by the solicitor from the client. 11 In the present case it appears from the solicitor's notes and also from the account rendered by the solicitor to the clients that the solicitor's retainer was simply to make substitutions in the existing Wills of the spouses. He was not instructed to prepare the Will de novo and was not retained to do this. 12 In such circumstances I believe that the usual practice of prudent and competent solicitors would be to carry out the instructions of the client accepting as given that the existing Wills reflected the legal position with regard to the properties referred to in the Will of Mrs Lalor and that the question of the ownership of the property had been taken into account when those Wills were previously drafted. 13 Assuming that the existing Wills were in similar terms to the Wills prepared by the solicitor except for the substitutions referred to in his notes, in my opinion it would have been assumed by the solicitor as a matter of usual practice that either Mrs Lalor was the owner of the properties in question outright and that Mr Lalor had no interest in them or that they were owned as tenants in common by Mr and Mrs Lalor. 14 This is entirely consistent with the provision in the Will for Mr Lalor to receive a life interest in the property which was obviously the family home. 15 I acknowledge that in circumstances where a solicitor is retained to carry out a task such as this there may be something in the surrounding circumstances which causes him or her to make further enquiries of the client and as a result to advise the client to instruct the solicitor to carry out additional work beyond that contemplated in the original retainer. 16 In this case, however, I see nothing in the surrounding circumstances which would have caused the solicitor to query the appropriateness of the provisions in the existing Wills. In making this statement I am of course assuming that in fact all the solicitor did was to make the alterations to the existing Wills which are reflected in the notes forming part of the bundle of documents. 17 Accordingly I conclude that the solicitor has acted in accordance with usual practice of competent and prudent solicitors in this matter." 17 In the letter of 7 July 2003 Mr Moses said that he had considered Ms Suttor's report and confirmed that nothing in that report changed the opinion he had given in the matter although he respected Ms Suttor's qualifications and her standing in the legal profession. Mr Moses gave oral evidence. 18 The trial Judge regarded Ms Suttor's statement as sufficiently furnishing the Court with criteria enabling evaluation of the validity of her report. He noted that the plaintiffs objected to the admissibility of Mr Moses' statement essentially on the basis that his expertise was limited to property law and that he had no specialist accreditation. His Honour, I think rightly, noted that even if specialist accreditation is evidence of expertise, the availability of formal accreditation did not exclude acquisition of expertise through other avenues, notably extensive experience, research and teaching. He also rejected the argument that Mr Moses' experience in property law denied him expertise in will making. The argument that Mr Moses had no experience in litigation in the succession field did not address the issue before the Court which concerned the usual practice of competent and prudent solicitors in matters of will drafting, not in matters of litigation. The contest was between Ms Suttor, who was of the opinion that even if the testator's instructions were only to make changes to a previous will limited to deleting certain beneficiaries and substituting others, a prudent and competent solicitor in drawing the will would have verified that the testator had in fact a separate interest in the two properties which she sought to dispose of by will. On the other hand, Mr Moses considered the usual practices of a solicitor in particular circumstances was governed to a large extent by the solicitor's retainer and the nature of the instructions. 19 His Honour set out that part of Mr Moses' opinion which I have quoted and observed that Mr Moses did not resile from it in oral evidence. He stated that, though a solicitor should consider the effective disposition of property when drawing a will from scratch, it was going beyond the solicitor's retainer to check the instructions given for a previous will that was being amended. When the retainer is limited to making changes to the beneficiaries, as in the present case, it was a question for the solicitor whether the client appeared capable of giving informed instructions. In any case, there was no need to verify what a client owned if the client instructed the solicitor as to what he or she owned. It was only important to ascertain or verify what property formed part of the estate if there was any doubt about this at the time of obtaining instructions.

Appeal 20 The plaintiffs appeal from Judge Certoma's decision on the following grounds: "1 That his Honour was in error in finding that the respondents acted reasonably and were not in breach of their duty of care to draw an effective Will by failing to enquire further about the deceased's ownership of the properties in question. 2 That his Honour was in error in holding that it was not reasonably foreseeable in the circumstances that the respondents' conduct might result in injury to beneficiaries under the Will. 3 That his Honour was in error in holding that the respondents' retainer did not require further enquiry in relation to the properties being disposed of. 4 That his Honour was in error in preferring the expert opinion of Mr N Moses over that of Ms P Suttor." 21 We were informed when the hearing of the appeal began that since it was instituted the appellant, Marcia Gladys Miller had died on 28 April 2004. By affidavit sworn on 1 October 2004, Wayne Keen, the appellants' solicitor, deposed: "We therefore substitute the husband of the deceased, Roy Miller, in place of the said Marcia Gladys Miller."

Accordingly, it seems appropriate that an order be made that Roy Miller be appointed to represent the estate of Marcia Gladys Miller on the appeal.

22 Hill v Van Erp (1997) 188 CLR 159 is authority for the proposition that a solicitor preparing a will for a client upon the client's instructions to include a testamentary disposition in favour of particular beneficiaries is under a duty to take reasonable care to effectuate the client's intentions. In that case, a solicitor prepared a will for a client upon the client's instructions that it was to include a testamentary disposition to a friend of the client. When the will was being executed, the solicitor asked the husband of the intended beneficiary to attest it. The solicitor knew of the relationship between the intended beneficiary and the attesting witness. The attestation attracted s15(1) of the Succession Act 1981 (Queensland) with the effect that the disposition was null and void. After the death of the client the intended beneficiary sued the solicitor for damages in negligence. By a majority, the High Court held that the solicitor was in breach of a duty of care owed to the intended beneficiary and hence was liable in damages for the value of the intended disposition. Members of the majority of the Court, in separate judgments, held that a solicitor so retained has a duty to use reasonable care to carry the client's instructions into effect and that that duty is owed to the intended beneficiary who suffers loss as a result of the breach of the solicitor's duty; see 167, 170, 181, 183, 185 and 198. At 170 Brennan J said: "By accepting the testator's retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a testator on death to an intended beneficiary; it is foreseeable that, if reasonable care is not exercised in performing the task, the intended beneficiary will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with; and the intended beneficiary thereby loses the property." 23 At 183 Dawson J referred to the client's reliance upon the solicitor to carry out those functions to effectuate the client's testamentary intentions. At 185 his Honour said that what was important was the position of a solicitor as a professional person of specialised skill and knowledge. That was significant with respect to the drawing up and execution of a will because the failure to exercise due care might affect not only the interests of the client but also the interests of others whom the client had in mind as beneficiaries. At 198 Gaudron J referred to the solicitor's control over the testamentary wishes of the client and control over whether the intended beneficiary would have the right which the testatrix clearly intended her to have, namely the right to have her estate properly administered in accordance with the terms of her will. 24 However, there is a distinction between this case and Van Erp. Mr Cooney was not aware and had no reason to believe that Mrs Lalor was not the registered proprietor of the Gowings Hill Road and Broughton Street properties. Mrs Hill knew that the attesting witness was the husband of the intended beneficiary, Mrs Van Erp. The present claim by the intended beneficiaries of Mrs Lalor's will depends upon their showing that Mr Cooney was under a duty to make inquiry about the ownership of the two properties. 25 The appellants submitted that the trial Judge ought not to have preferred the opinion of Mr Moses. Ms Suttor's conclusions were not challenged by cross-examination and she had particular expertise derived from long experience and specialisation as a solicitor in drafting wills. In a most useful exposition of the approach to be taken to such evidence, Young J, as his Honour then was, in Permanent Trustee Australia Ltd v Boulton & Lynjoe Pty Ltd (1994) 33 NSWLR 735 at 738, a case of alleged negligence against legal practitioners, said about the proposed evidence of a solicitor as to the inadequacies of the cross-defendant's solicitors: "The attitude I have taken in this type of case is, I believe, vindicated by the authorities and that is: (a) To reject evidence in which an expert says that in his or her view a solicitor was negligent in doing or not doing a certain thing. This is the question for the Court to decide; (b) to admit evidence of an 'industry wide' good practice; (c) to admit, subject to relevance, evidence as to what is common practice amongst solicitors of good repute; (d) not to admit evidence as to what the expert witness solicitor himself would have done if the purpose for which that evidence is tendered is to have me infer that all good solicitors would have done things that way. …" 26 Young J referred to Hawkins v Clayton (1988) 164 CLR 539. In that case, solicitors who had retained the will of a testatrix, who later died, were held, in the circumstances, to be under a duty to take reasonable steps to find the executor and inform him of the existence, contents and custody of the will. At 558 Brennan J remarked: "If evidence of the obvious were needed, the evidence of Mr Windeyer established that consultation of the telephone directory was a reasonable step to take." 27 At 573 Deane J said: "In the present case, there was no finding in the courts below that there existed any settled professional practice defining what, if any, steps a solicitor in New South Wales is obliged to take to locate the executor or beneficiaries under a will which is in his custody at the time of the testator's death. Nor is there any satisfactory evidence or other material before the Court upon which a finding of any such settled practice or of the effect of any relevant past dealing could properly be based. The only relevant evidence was that of a Sydney solicitor (Mr Windeyer) who was, at the time he gave his evidence, the Chairman of the Insurance Claim Committee of the Law Society of New South Wales. Upon analysis, however, his evidence does no more than establish that he personally would, on learning of the death of a testator whose will he held, write to the executor and that, if he was unaware of the executor's address, he would look up the name in the telephone book. In a context where it is ordinarily in the interests of a solicitor's probate practice that the executor be located, that evidence is inadequate to base a finding of any general practice defining the professional obligations of a solicitor in the postulated circumstances." 28 While both Brennan and Deane JJ treated the solicitor's evidence, in the circumstances, as of little weight neither seemed to have regarded it as inadmissible. In this case, neither expert gave evidence of their own practice. Neither was cross-examined about it. 29 Mr Davies SC put the appellants' case with his usual force. He drew the Court's attention to those cases which are authority for the proposition stated in the following terms by Kirby P in Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 at 652 as follows: "The attempt to limit a solicitor's duty strictly to the scope of his retainer is inconsistent with the holding of the High Court in Hawkins . It attempts to confine the duty of care to a contractual format. But as the majority established in that case, that duty lies also in tort. The consequences of tort liability may not be the same as of contractual liability. Although the contract of retainer will be an important indicium of the nature of the relationship which gives rise to the common law duty of care (as the minority held in Hawkins ) it will not chart exclusively the perimeters of that duty." 30 On the facts of that particular case, the scope of the solicitor's duty of care to the client required the taking of positive steps, beyond the specifically agreed task or function, where necessary to avoid a real and foreseeable risk of economic loss being sustained by the client. So it was submitted that in the present case more was required of Mr Cooney than simply making the alterations to the existing wills that his clients asked him to make. Although some doubt was raised about the decision of the majority in Waimond Pty Ltd v Byrne by McPherson AJA in Heydon v NRMA Limited (2000) 36 ACSR 462 at 567-8 this Court affirmed it in Curneck v Nitschke [2001] NSWCA 176. At paras 7 and 8 Davies AJA said: "7 Waimond Pty Ltd v Byrne seems to me to be well based upon the principle enunciated in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 and Astley v Austrust Ltd (1999) 197 CLR 1. In that case, the duty of a solicitor to speak with his client with respect to a certain transaction did not arise from his contractual retainer. It arose out of the relationship of proximity which existed between the solicitor and his client. The solicitor knew that a transaction, which he had been instructed to carry out for another client, affected the interests of his client. The majority of the Court considered that the circumstances were such that the solicitor had a duty to check with his client or to advise him to seek independent advice. 8 It is one thing to say, where a solicitor has a contractual relationship with a client and where the matter in issue arises within the scope of the retainer, that there will be no difference between the duty of care imposed by the contract and that imposed by the law of negligence. It is another thing to say that, in respect of a matter which is beyond the scope of the contract, a tortious duty of care may not arise from the relationship between the parties." 31 Again the duty depends in part upon the solicitor's knowledge of a particular and significant matter. Mr Cooney was presented with two wills that Mr and Mrs Lalor wished to change by substituting different beneficiaries and adding a further residuary beneficiary. The terms of those wills as presented to him expressly represented that the first property was Mrs Lalor's farm property and the second property was her house property. Further, the form of the gifts proceeded on the basis that those representations were correct. The evidence of Mrs O'Loughlin was that Mrs Lalor always and adamantly described the farm property as "her farm" and the house as "her house". There is no reason to suppose that, if Mr Cooney had asked Mrs Lalor whether she indeed owned the two properties, she would not have answered in the affirmative. No doubt, that is what Mrs Lalor told the solicitor who drafted her earlier will which she presented to Mr Cooney. There was nothing to suggest to Mr Cooney that this was incorrect and nothing was put to Mr Cooney in cross-examination that there was any evidence of a nature that might have led him to suspect that Mrs Lalor was not capable of understanding what property she owned. 32 Mr Davies took us to several cases where the courts have upheld claims by disappointed beneficiaries against solicitors who have drawn the will on the instructions of the testator. In Erl v Wilhelm (1998) 2 WWR 522 Zarzeczny J, sitting in the Saskatchewan Court of Queens Bench, upheld such a claim. In short, the testator had divested himself of certain farmlands to a company. He made a will devising the properties to certain beneficiaries which failed. The court comprehensively reviewed the cases which included the leading English decision of White v Jones [1995] 2 AC 207 and held the solicitor liable in negligence. But as appears from paras 75 and 76 the solicitor knew of the company arrangement. The trial Judge said: "76 That knowledge, if it had effectively acted upon the defendant's mind at the time he took Thornton's will instructions, should have alerted him to the issue of the corporation's involvement in the ownership and/or conduct of Thornton's farming operations." 33 On the matter of principle the trial Judge said: "88 To suggest that it is a sufficient discharge of a solicitor's duty to a testator in circumstances such as these to simply inquire of him what he wishes and then to record and thereafter prepare the will without anything further is to relegate a solicitor and his obligations comparable to that of a parts counterman or order taker. The public is entitled to expect more from the legal profession."

In the present case, there are no such comparable circumstances. 34 Factually, Carr-Glynn v Frearsons [1999] Ch 326 has similarities to the present case. The testatrix executed a will drawn up by the defendant solicitors in which she left the plaintiff, her niece, her share in a property which she owned jointly with her nephew. The testatrix died without having severed the joint tenancy. Her share in the property automatically vested in her nephew as the surviving tenant and the gift in her will to the plaintiff was ineffective. Thorpe LJ succinctly stated the facts and his opinion of them which accorded with the opinion of the other members of the Court of Appeal. His Lordship said at 338-9: "Mrs Larder used Frearsons when she needed a solicitor. In that sense they were her family solicitors. In such cases the continuity over an extended period of years is often with the firm rather than with any individual within the firm. When she wanted to put her property into joint ownership with her nephew Peter in 1969 she used Frearsons. When she wanted to make a will she used Frearsons and over the years whenever she wanted to change her will she used Frearsons. She was clearly fond of her niece, Helen, and when Helen got into financial difficulties she wanted to help her. Her plan and intention was to increase the benefit that Helen would receive under her will at her death. Under the penultimate will Helen was only due to receive a small legacy. Her plan and intention was to substitute for that legacy her half-share in Homelands. At her death Helen and her brother, Peter, would become joint owners and the value of the half-share would resolve Helen's financial difficulties. Since at that date she was 81 years of age the solution was unlikely to be long deferred. In those circumstances there can be no doubt as to the nature of Frearsons' retainer. It was simply to give effect to her wishes and to implement her plan. Miss Turner [a partner in Frearsons] quite rightly recognised that in order to implement the plan it was necessary to ensure that her joint ownership with Peter rested on a tenancy in common and not a joint tenancy. In view of the age difference between Mrs Larder and Peter coupled with the absence of any testamentary provision in relation to the property it was more than likely that the existing arrangement was a joint tenancy. The ease with which a joint tenancy can be converted into a tenancy in common seems one of the simplest procedures in an area of law where procedures are not always simple. All Mrs Larder had to do was to write the requisite letter. Of course research to establish the nature of the existing tenancy had an obvious rational attraction since it might preclude the need for the short letter of severance. If Frearsons had the deeds or the conveyancing file establishing the fact would have been simple but to suggest that the joint owners should authorise the bank to release or copy the deeds was an unnecessarily cumbersome proposal. Not only was it cumbersome but it was also hazardous if not satisfactorily completed before the execution of the will. The obvious hazard was that the effect of the execution might be not to solve Helen's financial problems but to cut her out of the will. Miss Turner caused or permitted Mrs Larder to undergo that risk. The simple letter of severance would have eliminated the risk. In my opinion Miss Turner was plainly negligent in failing to advise the sending of a letter of severance once she appreciated that she was unable to discover the nature of the existing joint ownership. The judge found that had she given the advice to send a letter of severance clearly Mrs Larder would have accepted it. The instinct to do justice is clearly aroused by this analysis. Only Miss Turner's negligence frustrated Mrs Larder's kindly intention to solve Helen's financial problems. In a perfect world Peter would have foregone his unintended benefit thus removing the ingredient of damage. But since his relationship with Helen seemingly precludes him from doing what many would feel him morally obliged to do Helen is in my opinion entitled to follow the White v Jones [1995] 2 AC 207 route to arrive at the position which her aunt planned for her." 35 The significant difference from the present case is that the solicitor, Miss Turner, recognised the possible problem with the will so long as the joint tenancy remained but allowed the testatrix to run the risk that the existing ownership was a joint ownership. No such risk was known to Mr Cooney.

Conclusion 36 In my opinion, it was open to the trial Judge to prefer the opinion expressed by Mr Moses. On Mrs Lalor's instructions merely to change some of the beneficiaries from those in a previous will, which had obviously been prepared by a lawyer, and in the circumstance that the dispositions under the wills of Mrs Lalor and her husband were not inconsistent with the subject properties being owned by Mrs Lalor, it was also open to the trial Judge to find that the solicitor acted reasonably and was not in breach of his duty of care to draw an effective will by failing to inquire further about Mrs Lalor's ownership of the properties. I agree with his Honour's conclusion. The appeal should be dismissed with costs.

Orders 37 I propose the following orders: 1. For the purposes of this appeal Roy Miller, the husband of the deceased appellant, Marcia Gladys Miller, be appointed to represent her estate. 2. Appeal dismissed with costs.

38 HODGSON JA: I agree with Sheller JA 39 SANTOW JA: I agree with Sheller JA.

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