The surviving spouse alleged that the lawyer had provided deficient and liable advice to the spouse by not ensuring that all of the now deceased spouse's assets had been transferred to the surviving spouse as separate property before the now deceased spouse passed away. It was particularly argued that the lawyer should have specifically advised against the transfer of assets from the ill spouse to the surviving spouse prior to the time of death, as such transfers would be considered death rents.

Prior to the initiation of the compensation case, the Bar Council had issued a ruling in which the board found that the lawyer's advice on death benefits had been in breach of good legal practice. However, the board's ruling had not been brought before the court.

Both the district court and the high court acquitted the lawyer of the surviving spouse's compensation claim.

The High Court found that, among other things, not proved that the lawyer had advised against the transfer of assets between the spouses prior to the death, only that advice had been given on the risk that asset transfers could risk being considered gifts on death.

The High Court also concluded that the surviving spouse had arranged to make several cash transfers up to the spouse's death, and that the surviving spouse must therefore have understood the advice. In addition, the surviving spouse had requested a price for transferring real estate from the now deceased to the surviving spouse, without however subsequently returning to the lawyer after being informed of the price for this.

Although the judgment is concretely justified, the judgment confirms that lawyers cannot of course be held responsible for matters that fall outside their remit, and that clients – especially in family and inheritance law matters – may have a concrete obligation to take care of assets themselves and on securing their inheritance when correct advice has been given on the advantages and disadvantages of refraining from to perform a specific action.

Finally, the judgment confirmed once again that the fact that the Bar Council has considered that a lawyer has acted contrary to good legal practice does not in itself mean that the lawyer has also acted in a responsible manner.

The lawyer was represented in both instances by lawyer Michael Kjær Lauritsen and lawyer Ida Juul Jensen.

We are of course available if there are any questions about the judgment.

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