Professional Negligence

Pseudonyms are used to protect the client's identity.

Lisa approached Dormer Stanhope in 2021 to advise in relation to her late father's estate. She did not anticipate that her journey would ultimately involve one set of lawyers holding another to account.

What should have been a straightforward estate matter quickly unravelled due to poor drafting in her father’s will, prepared by a law firm that proudly promoted itself as specialists in “Conveyancing, Wills, and Estate Planning” with over 30 years of experience. Lisa and her two brothers where all appointed executor in their father's will.

The vagueness of key clauses resulted in a deadlock between Lisa and her co-executors, ultimately forcing the matter into the NSW Supreme Court and triggering legal fees exceeding $160,000.

After the dispute regarding the proper construction of the will, Dormer Stanhope launched a professional negligence claim against the firm responsible for the will. We argued that if the will had been drafted competently in the first place, no dispute would have arisen and no court proceedings would have been necessary.

One clause in particular created confusion among the executors regarding both meaning and intent. Two terms stood out:

1. “Consideration”: Typically, a commercial term, its use in a will context was problematic. Defined in both the Oxford and Macquarie dictionaries as “a payment or reward,” the term is often linked to the legal concept of “valuable consideration”, something given in exchange for a promise. Its meaning in this clause was neither clear nor appropriate, and

2. “Investment”: This term, too, was left undefined. Was it meant to indicate a debt or equity investment? Dormer Stanhope argued that while it likely referred to equity, the lack of specificity was unacceptable in such an important legal document.

The combination of vague phrasing and poor drafting necessitated costly litigation.