Professional Negligence
Professional Negligence Lawyers in NSW: Defending your rights
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How do I write my own will?Dormers does not recommend anyone writes their own will.
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Why should I have a will?If you don’t have a will, then you have no executor and therefore, no one is authorised to represent your estate once you die. An application for Letters of Administration can also cost thousands of dollars and there is complexity around the process. The other thing to remember is that someone you don’t even like or know could end up being your Administrator. If you leave a will, then you can say who manages your estate when you die.
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But I don’t have any assets, what’s the point in having a will?These days, everyone at least has superannuation so there is some risk that may fall within notional estate, in NSW at least. Most super policies also contain life insurance, which can be substantial. This can become part of your estate in some cases.
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What is testamentary capacity?In order for a will to be valid, the will-maker must have testamentary capacity. This means that the will-maker must: understand the nature of making a will and the effect of making a will understand, at least in general terms, the nature and extent of the property of which they are disposing be aware of those who might be thought to have a claim upon their testamentary bounty have the ability to evaluate and discriminate between the respective strengths of the claims of such persons
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Do I truly have testamentary freedom?You are free to set out your wishes and how you would like your assets to be distributed after death in a will. Such a freedom, however, is not absolute in Australia.
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What are mutual wills?Mutual wills can also be called mutual will contracts. Mutual wills form a legally binding contract between two people. It involves two wills being drafted in terms that both parties agree to, and it prohibits either party from revoking or amending their will unless the other party agrees. As a result, when one person dies, both wills can no longer be amended. See also: The Curious Case of the Mutual Will
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What is the difference between a “normal” will and mutual wills?Usually, normal wills are revocable. That means it can be cancelled and you can make a new one. However, mutual wills can only be revoked while both parties are still alive, have capacity, and when there is agreement between the parties. Therefore, mutual wills contain an express or implied agreement not to revoke the will after the death or incapacity of either party.
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What is an example of a mutual will?An example may be where a couple makes an agreement that when the surviving partner dies their property will go to a specified beneficiary. Another example may only deal with the will of one of the parties. For example, when a housekeeper agrees to work for free on the basis that their employer will leave the house and contents to them.
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When would I be involved in a mutual will?A common scenario is when you wish to gift your estate to your surviving spouse to ensure your wealth passes on to your children when your surviving spouse dies. A mutual will would ensure that when you die, your surviving spouse cannot amend or revoke the will. This means your children will become the “ultimate beneficiaries” of your estate. In another case, you may wish to gift your estate directly to your children without gifting anything to your surviving spouse. In such a case, a mutual will could prevent your surviving spouse from making a family provision claim against your estate.
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Are mutual wills confined to husbands and wives?No. Mutual wills can be made between any two people who wish to bind each other to an estate plan.
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What happens if one party breaches the mutual will?If your surviving spouse breaches the mutual will, you can reply on the mutual wills contract to obtain some type of compensation.
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Can you give me an example of how a mutual will would work?Imagine Clare and John are married. They each have a daughter from a previous marriage. They make wills to agree to leave their assets to each other. In such wills, they agree the estate of the surviving spouse would be equally divided between Clare’s daughter and John’s daughter. John dies a few years later and his estate passes to Clare. At the time of John’s death, Clare’s estate is held on a constructive trust. (Constructive trust is an arrangement where a person holds property as the owner for the benefit of at least one beneficiary). This means that Clare must deal with the assets in the estate in the way that was outlined in the mutual will.
In the context of professional negligence, several professions are commonly involved in legal claims due to the nature of their work and the high standards of care and expertise expected of them. Each of these professions is governed by specific professional standards and statutory regulations, and the professionals are expected to perform their duties with a high level of skill and care. When they fail to meet these expectations, it can lead to negligence claims.
Medical Professionals
This group includes medical professionals such as doctors, nurses, dentists, veterinarians and other allied healthcare providers. Medical malpractice claims can arise from misdiagnoses, surgical errors, medication errors, and other forms of care that fail to meet accepted standards.
Legal Professionals
Lawyers and conveyancers can face negligence and breach of contract claims for not properly advising a client, not properly drafting legal documents, including wills, so they are clear in their terms, and lastly for unreasonable delay in progressing a client’s matter. The client must suffer damage to be successful in a claim. Damages may include legal costs if they are incurred because of the legal professional’s negligence.
Financial Professionals
This includes accountants, financial advisors, and auditors. Negligence claims in this sector often involve poor financial management, incorrect tax advice, or inadequate auditing.
Construction and Engineering Professionals
Architects, engineers, and builders can be sued for negligence related to building defects, structural failures, or non-compliance with safety standards.
Real Estate Professionals
Real estate agents and property managers can face claims for failing to disclose property defects or misrepresenting property features.
Information Technology Professionals
IT consultants and firms may be liable for issues like software malfunctions, data breaches, or project failures that cause financial losses.
Fiduciaries
Trustees, Executors and Administrators of Estates, Guardians, and Attorneys have a legal and ethical duty to act in someone else’s best interest. These roles arise in contexts where trust, good faith, and confidence are given by one party to another.
No two cases of professional negligence are ever the same, which is why Dormer Stanhope prioritises an individually tailored approach to each matter, based on an intimate understanding of our client’s circumstances. If your claim is successful, you may be able to recover damages for physical or psychological pain and suffering, damages for economic losses such as loss of earnings, your out-of-pocket expenses, and the cost of previous and future domestic care and assistance. However, more often than not, our clients are motivated by a desire to ensure no one else experiences what they have been through rather than financial gain.
At Dormer Stanhope, we offer our professional negligence services on a no win no fee basis to assure you that you won’t be worse off by bringing a claim.
No matter which professional sector you have been let down by, contact Dormer Stanhope today for a free initial consultation about your individual circumstances and advice on the options which are available to you to right the wrong you have suffered.
Some of the most commonly involved professions include:
When you have put your trust in a professional and they have fallen short of the standard of care which should be expected of their profession, it can not only be disappointing but can have significant financial, physical, and even psychological ramifications.
In New South Wales, professional negligence, often referred to as professional malpractice, generally encompasses several types of breaches by professionals that can lead to legal liability.
The main types of professional negligence
Breach of Duty of Care
Professionals are expected to exercise a reasonable level of skill and care that is typical of their profession. A breach occurs when a professional fails to meet this standard, causing harm or loss to a client.
Breach of Contract
This type of negligence arises when a professional fails to fulfil the terms of a contract with a client. This could involve not completing work as agreed upon or not delivering services within the specified time frame.
Breach of Fiduciary Duty
Certain professionals, like lawyers and financial advisors, have a fiduciary duty to act in the best interest of their clients. Breach of this duty can occur if there's a conflict of interest or if the professional benefits at the expense of the client.
Breach of Statutory Duty
Professionals must comply with various statutes that govern their profession. Failure to adhere to these statutory requirements can result in statutory negligence.
Misrepresentation
This occurs when a professional provides false or misleading information on which a client relies, resulting in loss or damage. This can be either a fraudulent misrepresentation (made knowingly without belief in its truth) or a negligent misrepresentation (made without reasonable grounds for belief in its truth).