When taking instructions for a will the Court of Appeal in NSW confirmed that a practitioner was obliged to explain the option of making an informal will to the client if the practitioner became aware of any factors that might frustrate the making of a formal will.
The facts in the case
The practitioner took instructions from his 94 year old client for a new will and at the end of the conference arranged to contact the client when he returned from the Easter holidays in 12 days’ time. He later described her 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.
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 and before the practitioner saw her again.
The first instance decision - Fischer v Howe [2013] NSWSC 462
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.
The court of appeal decision - Howe v Fischer [2014] NSWCA 286
The first instance decision was overturned on appeal.
The court of appeal found that the client had not irrevocably committed herself to the bequests she instructed the practitioner about or the identity of the executor. The court also found that the mere fact that the client was 94 was not enough to say there was ‘not insignificant risk’ of death or loss of testamentary incapacity. There was no evidence that Mrs Fischer’s health was such as to indicate pending death or mental incapacity.
The court concluded the duty of the practitioner to the client, and any disappointed beneficiary, arising from his retainer was to take reasonable steps to achieve:
- fulfillment of the client’s objective of making a formal will in the agreed timeframe
- avoidance of any reasonably foreseeable frustration of that objective.
The practitioner was to exercise of the care and skill of the ordinarily skilled solicitor.
The court disagreed with the primary judges’ finding that the practitioner was under a duty to procure the informal will. They said the most that could be required of a practitioner if they were aware of any factors that might frustrate the making of a formal will was to explain the option of making an informal will to the client and the possibility that the court might be expected to declare it her final will if necessary later.
What should you do?
Review your will instruction checklist and update if necessary to include:
- consider your client’s circumstances, and physical and mental condition
- provide advice about an informal will if there is a likelihood that a formal will may not be executed within time.
