Heirs Apparent: When Will Drafting Errors Expose Solicitors To Liability

The recent NSW decision determined proceedings brought by Mr Lofts (plaintiff) against Lawcover (insurer), regarding incorrect advice given by the plaintiff’s solicitor in relation to the transfer of property in a joint tenancy structure after death.

In issue

1. Whether the solicitor breached their duty of care by failing to advise that the property held as joint tenants would pass by survivorship and not under the will.
2. Whether the solicitor failed to advise that the joint tenancy should be severed to give effect to the client’s testamentary intentions.
3. Whether it is sufficient for a plaintiff to prove on the balance of probabilities that a deceased person would have taken the simple, inexpensive legal steps to protect their interest in an inheritance had they been correctly advised.