DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a claim by the plaintiff for professional negligence against the defendants. The plaintiff claims that as a result of the negligence of the defendants she has lost the benefit of a bequest under the will of her late father, Robert McDonald (“Mr McDonald”).

2. [2]
   The plaintiff alleges that Mr McDonald instructed the defendants to alter his will, to bequeath to the plaintiff his 50% interest in a property at 107 Beaudesert Road, Moorooka (“the property”).

3. [3]
   Mr McDonald was born on 5 September 1905, and died on 14 August 1993, leaving a will prepared by the defendants dated 17 April 1991.

Mr McDonald’s health:

4. [4]
   At the time of his death Mr McDonald was at the Jindalee Nursing Home. He had lived there since 10 July 1993, after discharge from the Wesley Hospital. Dr Forgan-Smith treated Mr McDonald from February 1993 until his death.

5. [5]
   Mr Redmond knew that Mr McDonald had been treated from time to time in hospital for various things, but “he always came out of them”; “he was an old man”; “in April (1993) he was a frail and elderly looking man.”

6. [6]
   Mr McDonald rang Mr Redmond on 24 June 1993, and said he wanted Mr Redmond to see him at the Wesley Hospital. He said he wanted the plaintiff to have a Power of Attorney because “he might not be able at some point to attend to something himself”. Mr McDonald said he believed his health was deteriorating. Mr Redmond went out to the Wesley Hospital as soon as he could, which was the next day.

7. [7]
   After his visit to the Wesley Hospital on 24 June 1993, Mr Redmond believed Mr McDonald was recovering, and he would be going home from hospital. He thought the plaintiff may have said something to that effect to him.

8. [8]
   On 8 August 1993 Mr Redmond knew that Mr McDonald had gone into a nursing home.

Visit to office of defendants on 19 April 1993:

9. [9]
   On 19 April 1993, Mr McDonald and the plaintiff visited the office of Mr Redmond, and signed a contract for the purchase of the property by Mr McDonald and the plaintiff’s brother, Bruce McDonald.

10. [10]
    Mr McDonald told Mr Redmond that he wanted his half-share of the property to go to the plaintiff. Mr Redmond told him he should wait until he actually owned the property. Mr Redmond said that neither the plaintiff nor Mr McDonald disagreed with his advice.

11. [11]
    The plaintiff could not remember what Mr McDonald said to Mr Redmond at the meeting. She remembers that Mr McDonald told her after the meeting that he could not understand why it could not be done then and there.

12. [12]
    Mr Redmond gave evidence that the conveyance was unusual. The contract was subject to the settlement of a contract for the sale of a property at Salisbury, which Mr McDonald had to sell so he had the money to put into the purchase. Mr Redmond was not acting in the sale of the Salisbury property – Mr McDonald and the plaintiff were doing it themselves. The contract was subject to a transmission from the late Mr Sault to whoever was the personal representative of his estate. Mr Redmond was not acting for Bruce McDonald.

13. [13]
    Mr Redmond agreed in cross-examination that it was within his competence to draw a clause along the lines Mr McDonald requested, but added that if the conveyance had not proceeded, then “there had to be a whole set of other instructions for what was supposed to happen in that event”.

The period between 19 April 1993 and 21 June 1993:

14. [14]
    The plaintiff said that after 19 April 1993, and before settlement of the property on 21 June 1993, Mr McDonald said to the plaintiff he was expecting changes to his will; that he was expecting to hear something from Mr Redmond. This is hard to understand as Mr McDonald had not objected to Mr Redmond’s advice to wait until settlement.

15. [15]
    There was no evidence of contact between Mr McDonald and the plaintiff and the defendants in this period.

Visit to the Wesley Hospital on 24 June 1993:

16. [16]
    Before Mr Redmond arrived to visit Mr McDonald at the Wesley Hospital on 24 June 1993, Mr McDonald asked the plaintiff to make a list of things he wanted to speak with Mr Redmond about. The notes which were made (Exhibits 20 and 23) included amending his will.

17. [17]
    Mr Redmond said he told the plaintiff he was going to discuss the terms of his will with Mr McDonald, and it was not appropriate for the plaintiff to be present. The plaintiff denied this conversation, but agreed she left early.

18. [18]
    When the plaintiff returned to the Wesley Hospital that night, Mr McDonald told her he could not remember whether he mentioned the amendments to his will to Mr Redmond. The plaintiff does not remember any subsequent conversations with Mr McDonald on this topic.

19. [19]
    Mr Redmond described the Wesley Hospital conversation with Mr McDonald as follows: Mr McDonald said he felt he had to give Gaye something more under the will; she hadn’t been able to have a job because she had been looking after him. Mr Redmond replied: “you know you’ve already made changes to the will and Gaye is getting something more than Bruce; you don’t always have to leave something to children who do that for their parents”. Mr Redmond said that Mr McDonald did not instruct him that he wanted anything done. Mr Redmond told him that if he wanted to make changes to his will, it was Mr McDonald’s choice and he should ring Mr Redmond. Mr McDonald said: “he would think about it.”

Telephone conversation on 10 August 1993

20. [20]
    At her home on 10 August 1993 the plaintiff dialled the defendants’ office, and spoke briefly to Mr Redmond’s secretary (“SA”) before putting Mr McDonald on the phone.

21. [21]
    Mr McDonald gave detailed instructions to SA for changes to his will. I find that no urgency was communicated to SA. SA prepared a diary note (part of Exhibit 3).

22. [22]
    SA put her diary note of the telephone conversation on Mr Redmond’s desk in a prominent place: in the middle of his desk or on his chair for him to pick up.

23. [23]
    Mr Redmond said that SA told him late on 10August that Mr McDonald had rung.

24. [24]
    Mr Redmond was not sure when SA’s diary note of 10 August was produced to him, probably late on Friday 13 August.

Telephone conversation on 13 August 1993:

25. [25]
    The plaintiff spoke to SA on 13August 1993.  The plaintiff said she told SA “these things shouldn’t take this long”.

26. [26]
    The plaintiff told SA she was surprised Mr McDonald “had lasted this long”; “surprised he’s come through”; “pulled through again”.

27. [27]
    The plaintiff agreed in cross-examination that SA told her that Mr Redmond would be away from the office for most of the next week.

28. [28]
    In cross-examination the plaintiff said she could not remember if SA told her that Mr Redmond would not have time to attend at the Nursing Home to have the will signed, and that the will would be posted and the plaintiff could arrange to have it signed or witnessed.

29. [29]
    The diary note made by SA includes the following:

“attending Gaye Strange when she asked whether the alterations that her father has requested to his will were ready for signing as he had been asked whether she had heard from us.

Advising her they were not.  Advising her that I had typed up the instructions given to me by Mr McDonald and had (sic) passed them on to JDR for him to consider whether a new will should be prepared or whether this could be done by codicil.  Advising her that JDR had been busy as he was going to be away from the office for most of next week but that I remind him (sic) and it could most probably be done before he went on holidays, but that it was possible that he would not have time to attend at the Nursing Home to have it signed.  In this case, would we be able to post the Will to her and she could arrange to have it signed and witnessed.  She said this would be okay”.

30. [30]
    SA said she could not remember whether she put this note on Mr Redmond’s desk, or with the file or papers that it related to. She did not think she put it in “the urgent spot” (in the middle of his desk or on his chair). She thinks she mentioned to Mr Redmond that Mrs Strange had rung in and queried when the will would be available.

The actions of Mr Redmond:

31. [31]
    When Mr Redmond received the diary note of SA of 10 August, he decided the contents required him to speak to Mr McDonald. He had some concern that the instructions reflected what Mr McDonald wanted to do, and not what his family was pressuring him to do.

32. [32]
    On Friday 13 August 1993, SA told Mr Redmond that the plaintiff had rung.

33. [33]
    Mr Redmond said he intended to make an appointment to see Mr McDonald as soon as he could on Monday 16 August 1993.

34. [34]
    Mr Redmond did not instruct another person in the second defendants’ firm to prepare a will in the period 10 August to 14 August 1993.

35. [35]
    Mr Redmond did not make enquiries of Mr McDonald or the plaintiff to clarify the urgency of the instructions, or the time within which he should act to carry them out. He agreed he could have phoned Mr McDonald or the plaintiff.

36. [36]
    Mr Redmond did not ask SA, or anybody else, to ask about Mr McDonald’s health before deciding that Monday would be a good day to see him.

37. [37]
    On Friday 13 August 1993 Mr Redmond did not make an appointment to see Mr McDonald on the Monday.

38. [38]
    Mr Redmond did not prepare a will on Friday 13 August to take to Mr McDonald on Monday. He said he would have followed that course if he had received the instructions directly from Mr McDonald.

39. [39]
    Mr Redmond said he would have prepared a will on Friday if “there might not be another occasion on which to get the document signed”.

40. [40]
    Mr Redmond agreed that the telephone instructions of 10 August 1993 were consistent with Mr McDonald’s request on 19 April 1993.

41. [41]
    According to Mr Redmond, the second defendant’s system was that “if instructions were received from either an elderly client or somebody saying they were in some state of ill-health, or some other priority needed to be given, then somebody, if not the partner involved, but somebody else, would ‘drop tools and go and do it’ (T185)”. Mr Redmond said that “being elderly by itself did not trigger that sort of system” (T185).

42. [42]
    Mr Redmond denied that it was accepted practice at the time to prepare a will for execution immediately upon receiving instructions, even if a more formal document might be prepared later.

43. [43]
    Mr Redmond agreed that if he had wanted to respond to SA’s diary note, he could have gone to see Mr McDonald at the Nursing Home at any time after 10 August 1993. He had not done so because there was no indication given that the matter was urgent, or any more urgent than other matters he was attending to. On 10 August he did not hear about it at any time when he could have gone (unless he “rushed out at night or something”). He did not visit on Thursday 12 August or Friday 13 August because there were other things he regarded as more pressing, given the nature of the diary note from SA.

The medical evidence:

44. [44]
    The report of Dr Forgan-Smith states that as at 10 August 1993, Mr McDonald was in poor health because of his frailty, the alveolar cell carcinoma and renal failure. His health had deteriorated over the five months he had treated him, between February and July. During that period he had multiple admissions to hospital and each admission left him frailer than previously.

45. [45]
    In evidence at trial Dr Forgan-Smith said that Mr McDonald had a number of different conditions resulting in frailty, chronic renal failure, a lung cancer and chronic heart disease.

Findings:

46. [46]
    I find that Mr Redmond was not negligent in the advice he gave on 19 April 1993.

47. [47]
    I find that Mr Redmond was not negligent in failing to prepare a fresh will between 19 April 1993 and 10 August 1993.

48. [48]
    I find that Mr McDonald had a concluded testamentary intention (refer Queensland Art Gallery Board of Trustees v. Henderson Trout (1998) QSC 250) to give his share of the property to the plaintiff.  This was displayed in conversations with Mr Redmond on 19 April 1993 and with SA on 10 August 1993, and in numerous conversations with the plaintiff (whose credibility I accept on this point).  I have reached this view notwithstanding that between 24 June and 10 August there was a period of inaction when Mr McDonald did not contact Mr Redmond.  I am unable to make a finding whether this was due to indecision on his part, or a mistaken belief that he had already told Mr Redmond to make the amendments.  I have considered the submission of Counsel for the defendants that people ‘dangle entitlements under wills in front of people’.  I find that the plaintiff has discharged her onus of proving, on the balance of probabilities, that she is a disappointed beneficiary.

49. [49]
    I find that if Mr Redmond had prepared the will in accordance with Mr McDonald’s telephone instructions of 10 August, and presented it to Mr McDonald, he would have signed it.

50. [50]
    I find that it was not incumbent upon Mr Redmond to attend Mr McDonald personally to check the instructions, as they were in accord with the intentions expressed on 19 April 1993 and 24 June 1993.

51. [51]
    I find that it is more probable than not that although pressure from the plaintiff’s brother might have caused distress to Mr McDonald, I find that he would not have made a different will subsequently to execution of the fresh will reflecting the further bequest to the plaintiff.

52. [52]
    I find that Mr McDonald’s testamentary intention was communicated to SA on 10 August 1993.

53. [53]
    I find that neither Mr McDonald nor the plaintiff specifically communicated to the defendants any urgency for the fresh will.

54. [54]
    I find that any communication by the plaintiff to SA on 18 June 1993 about Mr McDonald’s health was vague, and in any event was not brought to the notice of Mr Redmond.

The Law:

55. [55]
    In deciding what is undue delay in the preparation of a will for execution, it is imperative to look at the particular circumstances. There are no hard-and-fast rules, and decisions in other cases are of limited assistance. Subject to this caveat, I have had regard to the following authorities included by Counsel for the defendants in his written Submissions: White v. Jones (1995) 1 All ER 691, Smith v. Claremont Haynes & Co., Gartside v. Sheffield, Young & Ellis (1983) NZLR 37.

56. [56]
    The standard of care owed to the plaintiff was the care and skill to be expected of a qualified and ordinarily competent and careful solicitor in the exercise of his or her profession: Hawkins v. Clayton (1987-8) 164 CLR 539, 580; Hanflex Pty Ltd v. NS Hope & Associates (1990) 2 Qd.R 218, 226.

57. [57]
    I find that given the sequence of events as I have found them, and the age (87) and history of illness of Mr McDonald, a qualified and ordinarily competent and careful solicitor would have prepared a fresh will to reflect the telephone instructions of 10 August. Such a solicitor would have attended to the execution of a fresh will by Mr McDonald within a day or two of the telephone instructions of 10 August. Allowing for the public holiday, I find that it should have been executed on Thursday or Friday, and thus before death on Saturday.

58. [58]
    I find that a qualified and ordinarily competent and careful solicitor would have prepared a fresh will, not just rung the deceased or the plaintiff to enquire as to urgency.

59. [59]
    I find that the second defendants failed to follow its own system in respect of urgent wills. Mr McDonald was both elderly and ill, and the sequence of events as I have found them called for an appropriate person to “drop tools and go and do it” (refer paragraph 1 of these Reasons).

Damages:

60. [60]
    I agree with Counsel for the defendants that I must assess the loss of the chance. The normal contingencies of life may have prevented the valid execution of the will. There may have been a TFM application or a challenge to the will. I consider an appropriate discount to be 20%.

61. [61]
    I consider that damages ought to be assessed at the date of the negligence – 10 August 1993. The property was valued at $110,000 as at 14 April 1993.

62. [62]
    If the defendants had not been negligent, the plaintiff would have received Mr McDonald’s 50% interest in the property on the distribution of his estate following his death. The other 50% interest would have been elsewhere (refer clause 5 of the will of 17 April 1991 - (Exhibit 1).

63. [63]
    So far as the property is concerned there are three possibilities:

• The property could have been sold immediately on distribution of the estate of Mr McDonald. The other interestholders may or may not have agreed to this course. If they did not, costs would have been involved in obtaining court approval.
• The property could have been rented. Mr Hall gave evidence that properties such as the property received net rental returns of 4-5% of the current market value.
• The property may have been retained. I find that it would have increased in value. I accept the evidence of Mr Hall that 107 Beaudesert Road, Moorooka is ‘outer-fringe city’ and demand is continually growing outwards from the city and Moorooka is experiencing strong demand. He did not quantify the extent of the capital value increase.

64. [64]
    I will hear further submissions as to the appropriate Orders in view of my findings.