Solicitors' will-making duties

Abstract

Since the recognition that, in will-making practice, solicitors owe duties to beneficiaries as well as to clients, the courts have stated solicitors' will-making duties with some precision. However the law of tort still fails to offer an agreed rationale for them. This article suggests that, tortious principles aside, these duties spring from a clearer articulation of the solicitor's professional role as caretaker of clients' testamentary intentions. This idea explains most adjudication on will-making, while placing reasonably clear limits on solicitors' liabilities. This article's theory of the solicitor's caretaking role is the basis of its criticism of Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) — where duties to one who merely hoped to be a beneficiary were recognised — and its conclusion that the duties stated there are conceptually precarious and practically unsustainable.