Business Law For Cases And Materials – Negligence In Care Duty By Solicitor

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Discuss about the Business Law for Cases and Materials.

There was economic loss and the solicitor was not liable for the beneficiary and he failed to locate the executor of the deceased estate leading to the delay in the administration. Here the defendant is the solicitor and the plaintiff is Mr. Hawkins who was the sole executor and has been made the beneficiary of the estate of the testatrix.  Mr. Hawkins was not informed of the death of the testatrix or his responsibility as a sole executor and the beneficiary of the estate till March 1981. The main asset of the estate fell in the disrepair which was not occupied for a long time. There was a change in the solicitors and the plaintiff got an endowment of probate in October 1981 where the estate was administered accordingly (Schwenzer et al., 2012). Thus there was negligence in the care duty by the solicitor because of his failure to inform the executor about the death of the testatrix. 

This is an act of negligence of the care duty by the solicitor as he failed in informing the executor of the death of the testatrix.  The estate suffered a loss due to the ignorance of the executor about his death and there was a considerable damage which was made as a result of this (Mendelson, 2014). There was a limitation in the action of tort accrual of the action which was caused as a result of the tort and the loss suffered by the estate due to the death of the testatrix. There were no measures taken in locating Mr. Hawkins for a period of six years after the testatrix’s death in a situation where phone calls would be enough for tracing his location as a result there was negligence and a failure in discharging the care duty and it was clear that the relationship of the proximity existed in this case which gave rise professional relationship between the testatrix and respondent. There was a precision in the nature of the relationship which gave rise to the neglect of care duty and there was a contract which indicated the nature of the professional relationship which gave rise to care duty according to the common law. Such cases are similar to Cf. Bowen v Paramount Builders (1977) 1 NZLR 394 as per Richmond P at 407. In Ingelewood Shire Council (1963) HCA 15 (1963) 110 CLR 74 at p 85 with the situation to ascertain the care duty where there was a contract between the building owner and the architect.

Conclusions

It was observed by Deane J that there were a number of terms deduced readily for the real intention. There could be bail of the will to the end reasonably noticed by the third party. For the first time, the high court gave the decision in allowing the Mr. Hawkins in recovering the economic loss and the blunder caused due to the negligence in the duty of care. According to the Sutherland Shire Council v. Heyman and San Sebastian Pty Ltd v Minister Administering Environment Planning and Assessment Act 1979 an act of negligence causing economic loss attracts liability on the part of the solicitor.

According to the Hawkins v Clayton (1988) case, there was negligence in the care duty. In the case of San Sebastian, economic loss resulted outside the realm of negligence or mis-statement. But in the case of Hawkins the loss was sufferer by the estate of the testatrix never came because of the reliance on the part of the testatrix who is the plaintiff as the executor of estate of testatrix made by the solicitors of the defendant.  The plaintiff did not actually rely on the solicitors of the defendant and reasonable measures were taken in making sure that the plaintiff was the executor of the estate of the testatrix and the contents of the legal will was notified to Mr. Hawkins. The High Court analyzed that there was a business relationship of proximity similar to San Sebastian. There was a lack of uniformity while reasoning the four members of the Court applying the proximity test. There was a lack of uniformity to reason among the four members applying the test of proximity. There was enough business relationship of proximity according to Deane J. on the assumption of reliance of the testatrix on the solicitor of the4 defendant. There was a failure of the part of the solicitor to inform the executor about the death of the testatrix.  There was a liability in the tort as to whether there was a professional relationship between the solicitor and the client resulting in proximity which was found on assuming the responsible of rely  thereby on the testatrix (Barker et al., 2012).

Dean J. inferred that the economic loss which was continued by the estate of immediate party to the relationship of proximity. His Honor concluded that the solicitor owes a care duty to both clients and to the future of the legal personal representatives of the client with respect to economic loss which was unlimited to the loss which was sustained by the client. There was an absence in the contractual obligation taking positive steps in making sure that the contents of the will was made by the executor. There are situations in which law implies a voluntary undertaking by assuming responsibility as in the case of Hedley Byrne & Co. Ltd v Heller & Partners Ltd. but it is not in this case.  Positive steps were not taken as the testatrix never gave any instructions to the solicitor. The testatrix broke all relationship with Mr. Hawkins and the principal beneficiary which was named in the will and intended to make a new will and no evidence was there which suggested that she did not rely on the positive actions by the respondent in communicating with her executor after the death of the testator. (Furmston et al., 2012).

References

Nothing special have been there about the circumstances of the case as it will be incapability to apply to every solicitor which have the custody of the will.  If the custody aims at making the practitioner as the custodian of the intention of the testamentary testator of the intention of the testamentary testator it seems in following that he have to taking care in learning not only where the executor is but also on the death of the testator.  The obligation arising could prove burdensome. A solicitor is liable for the inactions because Mr. Hawkins knows about where the will is located and he is appointed as the executor (Carter, 2012).

The respondent was under the care duty by the reasons of the actions which undertook to follow testatrix’s death.   The testatrix’s nephew was advised of the actions in the response to his requests of the content of the will and to secure to pay estate for funeral expense. Inquiries were answered by the testatrix’s relatives as the contents of the will and there were inquiries. These actions took the belief framework by the respondent and later the executor disappeared. The solicitor dealt Mr. Lamb and retires after the executor was in location by the respondents and new solicitors were engaged the respondent who rendered account on the service estate after the death of the testatrix

The appellant faced difficulties to mount a submission in establishing a link between the respondent’s conduct and the duty in taking care responsibly by taking measures in locating the executor. The respondent initiated actions were dealt by the representation of Mr. Lamb. There was no bearing of the otherwise requisite relationship of proximity between Mr. Hawkins and the testatrix and the respondent to be found on the duty which is alleged (Lunney and Oliphant, 2008).

The solicitors did not perform their duty in informing Mr. Hawkins of the existence of the will resulting in the economic loss. The testator trusts the solicitor of the bail of the will during the lifetime of the testator. A testator wills to alter and the solicitor claims no lien upon it as in the case of Balch v Symes. After the testator’s death there was an end of the bail. Proximity relationships exist and a duty of care is owed to a class including the members who are not born or who acknowledged the future capacity which they do not have.

Conclusions

The respondents did not perform the duty of care in informing Mr. Hawkins either in the capacity as the executor of the will of the beneficiary or the testatrix. There was a dismissal of the appeal due to the negligence in the duty of care. The decisions of the high court raise a question as to whether the solicitor as the will of the client did not take reasonable care in learning the death of the testatrix. There was a breach in the duty of Hawkins. Another lesson from the solicitors from Hawkins is that they are not departed from the usual practice to check notices of death.

References

Anson, W.R., Beatson, J., Burrows, A.S. and Cartwright, J., (2010). Anson’s law of contract. Oxford University Press.

Barker, K., Cane, P., Lunney, M. and Trindade, F., (2012). The law of torts in Australia. Oxford University Press. 

Carter, J.W., (2012). Cases and materials on contract law in Australia. LexisNexis Butterworths.

Lunney, M. and Oliphant, K., (2008). Tort law: text and materials. Oxford University Press.

Mendelson, D., (2014). The new law of torts. Oxford University Press.

Schwenzer, I., Hachem, P. and Kee, C., (2012). Global sales and contract law. Oxford University Press.

Furmston, M.P., Cheshire, G.C. and Fifoot, C.H.S., (2012). Cheshire, Fifoot and Furmston’s law of contract. Oxford University Press.