Solicitors' will-making duties

Mortensen, Reid (2002) Solicitors' will-making duties. Melbourne University Law Review, 26 (1). pp. 60-87. ISSN 0025-8938

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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.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Final published version supplied by, and deposited with the permission of the publisher.
Faculty/School / Institute/Centre: Historic - Faculty of Business - Department of Law (Up to 31 Mar 2007)
Faculty/School / Institute/Centre: Historic - Faculty of Business - Department of Law (Up to 31 Mar 2007)
Date Deposited: 30 Mar 2009 07:00
Last Modified: 20 Nov 2013 02:42
Uncontrolled Keywords: wills; will-making; solicitors
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180126 Tort Law
22 Philosophy and Religious Studies > 2203 Philosophy > 220305 Ethical Theory
16 Studies in Human Society > 1608 Sociology > 160806 Social Theory
Fields of Research (2020): 48 LAW AND LEGAL STUDIES > 4806 Private law and civil obligations > 480605 Tort law
50 PHILOSOPHY AND RELIGIOUS STUDIES > 5003 Philosophy > 500306 Ethical theory
44 HUMAN SOCIETY > 4410 Sociology > 441005 Social theory
Socio-Economic Objectives (2008): E Expanding Knowledge > 97 Expanding Knowledge > 970118 Expanding Knowledge in Law and Legal Studies

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