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Case Law | High Court of Australia
The High Court’s landmark 1988 decision on when a solicitor’s inaction — not just a mistake — can ground a professional negligence claim in Australia.
| Parties | Hawkins v Clayton & Anor |
| Year | 1988 |
| Court | High Court of Australia |
| Citation | (1988) 164 CLR 539 |
| Decision | The High Court held that a solicitor who retained a client’s will after the testator’s death owed a duty of care to the executor — a foreseeable third party — and breached that duty by failing to make contact for approximately 11 years. The estate suffered real loss as a result of the prolonged inaction, and the solicitor was liable. |
A solicitor was engaged to draft and witness a will. After the testator executed the document, the solicitor retained the original — which was common practice at the time, and which created an ongoing custodial responsibility.
When the testator died, the solicitor did nothing. No attempt was made to locate the executor. No one was notified that the firm held a will. Approximately eleven years passed before the matter came to light.
During those eleven years, real property belonging to the estate — which had not been administered — declined significantly in value. The beneficiaries suffered a measurable financial loss that would not have occurred had the estate been dealt with promptly after death.
The executor eventually brought a claim against the solicitor, arguing that the failure to take any steps to notify the estate’s representative after the testator’s death constituted professional negligence.
The High Court found in favour of the executor. The majority held that the solicitor owed a duty of care not just to the original client — who was by then deceased — but to the executor as a foreseeable third party who would be directly affected by the solicitor’s conduct.
The breach was found in the solicitor’s sustained inaction. Retaining the will created a responsibility to act when it became necessary to do so. The death of the testator was the triggering event. A competent solicitor in that position would have made reasonable enquiries and brought the will to the attention of the executor within a reasonable period.
Causation was established on the basis that the estate’s loss — the decline in the value of the real property — would not have occurred had the will been disclosed and the estate administered in a timely way.
The solicitor was held liable for the loss suffered by the estate as a direct consequence of that failure to act.
Hawkins v Clayton established two important propositions that continue to shape professional negligence law in Australia.
First: a solicitor’s duty of care is not necessarily confined to the immediate client. Where a third party is sufficiently proximate — close enough to the matter that they are foreseeably and directly affected by the solicitor’s conduct — a duty may extend to them. The executor in Hawkins had a direct relationship with the subject matter of the retainer, even though they had no direct dealings with the solicitor during the testator’s lifetime.
Second: doing nothing can be a breach of duty. This is perhaps the most significant contribution of the case. Australian negligence law had generally developed around acts — things that went wrong because of something the professional did. Hawkins confirmed that a sustained failure to act, where a reasonable professional would have acted, is equally capable of grounding liability. The omission must be in a context where a special relationship exists and reliance is foreseeable — but where those conditions are met, inaction is no defence.
This principle runs in parallel with what the High Court later affirmed in Rogers v Whitaker (1992) 175 CLR 479, where a surgeon’s failure to proactively disclose a material risk — again, an omission rather than an active error — was held to constitute a breach of the duty of care. Both cases reflect the same underlying idea: professionals can be negligent not only by doing something wrongly, but by failing to do something at all.
If you or your family have discovered that a solicitor failed to act on a deceased person’s will — and that failure caused financial loss — Hawkins v Clayton is directly relevant to your situation.
The case is most commonly cited in:
Hawkins v Clayton sits within a line of High Court authority on the scope of solicitor and professional duties in Australia. These two decisions are closely connected and frequently cited alongside it.
Rogers v Whitaker (1992) 175 CLR 479
The High Court held that a surgeon’s failure to proactively warn a patient of a material risk — an omission — constituted a breach of the duty of care. The case is foundational to informed consent doctrine and reinforces the principle that professional negligence can arise from failing to disclose, not just from actively doing something wrong. Read the Rogers v Whitaker case summary →
Hill v Van Erp (1997) 188 CLR 159
The High Court extended solicitor liability to a disappointed beneficiary who lost an inheritance due to a solicitor’s failure to ensure a will was properly witnessed. Like Hawkins, the claimant was a third party — not the client — and the loss arose from how the solicitor managed the will process. Read the Hill v Van Erp case summary →
Professional negligence claims in Australia must generally be commenced within the limitation period from the date you became aware — or should reasonably have become aware — of the negligence. That period varies by state: typically three years in NSW, QLD, SA, ACT and NT, and up to six years for general claims in VIC, WA and TAS.
In cases involving a solicitor’s omission — where the negligence was the failure to act rather than an identifiable act — the discovery question can be genuinely complex. When did you first know, or when should you reasonably have known, that something had gone wrong? If there is any doubt, get advice now. Missing the deadline permanently extinguishes your right to claim, regardless of how strong the case would otherwise be.
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Discovering that a solicitor sat on your family member’s will — and that the estate paid the price — is a distressing thing to confront. You may be entitled to recover that loss. Our specialist team will assess your situation honestly, at no cost. If there is a viable claim, we will pursue it on a no-win, no-fee basis. If there is not, we will tell you clearly and explain why.
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COMMON QUESTIONS
The High Court held that a solicitor who retained a will after the testator’s death owed a duty of care to the executor — as a foreseeable third party — and breached that duty by failing to make contact or notify anyone for approximately 11 years. The estate suffered financial loss during that period, and the solicitor was found liable. The case confirmed that sustained inaction by a solicitor, in circumstances where a reasonable practitioner would have acted, can constitute professional negligence.
Yes. Hawkins v Clayton (1988) 164 CLR 539 is one of the leading Australian authorities confirming that an omission — a deliberate or negligent failure to act — can constitute a breach of a solicitor’s duty of care. The key question is whether a reasonable solicitor in the same position would have taken steps to act, and whether that failure caused the claimant’s loss. Where a solicitor has assumed responsibility for a matter (such as holding a will in custody), prolonged inaction is unlikely to be a defence.
It may well be relevant. If a solicitor held documents related to the estate, had responsibilities arising from that custody, and failed to take reasonable steps to notify the executor or advance the administration, Hawkins v Clayton supports the argument that a duty of care existed and was breached. Whether you have a viable claim depends on the specific facts — including the nature of the solicitor’s role, the extent of the delay, and the loss suffered by the estate. A free case evaluation is the fastest way to find out.
The limitation period depends on your state. In most jurisdictions, you have three years from the date you became aware — or should reasonably have become aware — of the negligence. In some states, such as Victoria and Western Australia, the general limitation period for non-personal-injury claims can be longer. In cases involving a solicitor’s omission, the date of discovery may be later than you expect, because the negligence only becomes apparent when the inaction comes to light. If you are uncertain, do not assume your time has expired — get advice as soon as possible.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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