The decision of Fischer v Howe [2013] NSWSC 462 is a timely reminder for practitioners preparing wills.
The practitioner in this case was found negligent for failing to procure an informal will at the initial conference he had with his 94 year old client (subsequently deceased) when she gave him her instructions for a new will.
The solicitor described the deceased as looking “stately and elderly and dressed smartly”. She did not appear to be suffering from any ill health. She lived at home with the help of a carer and appeared to know exactly what she was doing. At the end of the conference, the solicitor arranged to contact the client when he returned from the Easter holidays in 12 days’ time.
The day after the initial conference, the deceased was diagnosed with pneumonia on the right side of her chest. Her condition deteriorated and she died on the Tuesday after Easter, somewhat unexpectedly.
The court found that by reason of the deceased’s age, lack of mobility, need for care and infirmity, she was “susceptible to a not insignificant risk of losing her testamentary capacity in the period of about a fortnight between the initial conference and the proposed conference”. As a result the solicitor should have considered having the client sign an informal will.
While the judgment does not go so far as to require practitioners to sign every client up to an informal will, it is a reminder that you should turn your mind to the circumstances of your client and consider whether it is appropriate.
