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Professional Negligence, Will Drafting and the Scope of the Retainer: The Current State of the Law

Speakers: John Armfield

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Date of presentation: 2 October 2015


A joint seminar for Step Tasmania and the Law Society of Tasmania 


Speaker: John Armfield, 2 Wentworth Chambers, Sydney NSW          

About the Seminar

Drafting wills is a learned, practical skill – but it has to be learned very fast, as there is little scope for error.   The underlying difficulty is that once the will has been prepared, executed and filed in safe custody, there is little likelihood that any errors it might contain will be discovered until after the testator’s death, when it is too late to correct them” – Hutley’s Australian Wills Precedents. 

In this seminar, John will re-visit the extensive obligations of will drafters to their clients and to beneficiaries.   He will review the duty of care and to whom it is owed in the New South Wales case of Maestrale v Aspile, where a solicitor was held liable to a beneficiary for his loss of a chance to obtain a benefit under a will, and compare it to the current state of the law in Tasmania, following the appeal Court decision in Calvert v Badenach.  

He will also review the state of the law following the successful appeal in Fischer v Howe and look at other cases including the Queensland Art Gallery Board of Trustees v Henderson Trout and issues surrounding lack of settled testamentary intention by clients.   Issues about property ownership and the current state of the law about the nature of the will drafter’s duties as dealt with in Miller; Carr-Glynn; and Vagg will also be discussed.   As will the case of Ireland for how one Court dealt with ownership of assets held within a company.  

A focus point of John’s discussion will be the importance of the scope of the retainer between the client and the Will drafter.

About the Speaker

John Armfield specialises in estate litigation.

Regularly advising and appearing for plaintiffs and estates in matters in the Equity Division of the Supreme Court of New South Wales, John has extensive experience also representing clients at mediations and informal settlement conferences. He has also acted as a court-appointed mediator with respect to family provision claims.

His practice has a strong emphasis on probate, family provision applications and will construction. He has also appeared in applications seeking a review of orders allowing commission to executors.

John regularly presents papers at legal conferences about wills and succession law and was recently a keynote speaker for the Society of Trust and Estate Practitioners (STEP), of which he is a member, in Hobart.

John’s areas of practice include Equity & Trust; Family Provisions / Guardianship; Mediation / ADR; Succession / Wills & Probate.

John has also presented numerous papers on the following topics:
- Professional Negligence and Will Making
- Applications for Family Provisions Orders
- Judicial Advice in Estate Dispute Matters
- Informal Wills – A Cross-Jurisdictional Companion
- How to Get the Best Results in Inheritance Mediation
- Professional Negligence and Will Making
- Beneficiaries and Estate Administration
- Contested Probate Matters in Practice
- Testamentary Capacity
- Competing Claims
- Establishing Capacity when Capacity is in Issue
- Notional Estate Disputes in current cases
- Equitable Claims in Estate Disputes



CPD Guide (1 PS,PM)

$22.00 ex GST