The High Court dismissed Vanessa Rojack’s negligence claim against solicitors Mervyn Taylor and Don Buchalter, finding she had no prospect of succeeding in a claim against her late mother’s estate under section 117 of the Succession Act 1965.
Rojack said the solicitors, who administered the estate of Dr Hazel Boland, should have told her she might seek a larger share of the estate and advised her to obtain independent legal advice. She claimed that their failure to do so meant she missed the statutory 12-month period for making an application. The solicitors accepted that they owed her a duty as executrix but denied that they had a separate duty to advise her personally as a beneficiary. They also argued that any section 117 application would have failed.
Justice Quirke found that Buchalter had been retained to advise Rojack as the estate’s personal representative. A solicitor advising an executor had no general duty to alert beneficiaries to possible section 117 claims or recommend independent advice. The judge left open whether particular circumstances could create a separate duty to protect a beneficiary, but found that Buchalter’s prior professional and social relationship with Rojack did not create such a duty in this case.
The judgment also addressed Rojack’s account of a telephone call after her mother’s death. Rojack said Buchalter told her there was nothing she could do and did not advise her to consult another solicitor. Buchalter said he told her that she could consult another solicitor if she wished to pursue the matter. The judge found that Rojack had no section 117 cause of action against the estate, so the difference over what was said did not establish the duty she alleged.
In assessing the possible claim, the court considered Boland’s estate, her four adult children’s circumstances and the provision she had made for Rojack during her lifetime and in her will. Boland had provided Rojack and her children with accommodation and substantial financial support, made monetary gifts, and left Rojack a 50% interest in the house purchased with her. The judge considered it most unlikely that a court would find Boland had failed in her moral duty to make proper provision for Rojack.
The court concluded that Buchalter was not obliged to give the unsolicited advice alleged and that Rojack’s claim failed. The judgment does not determine what a court would have awarded on a successful section 117 application; it concludes that Rojack had no prospect of success on the evidence in this negligence action.