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Howe v Fischer [2014] NSWCA 286 is a successful court of appeal decision in NSW for a practitioner who did not obtain an informal will before his client died.

The first instance decision of Fischer v Howe was referred to in our article Informal wills should be front of mind as a timely reminder for practitioners to consider the need to prepare informal wills. The practitioner was initially found negligent for failing to procure an informal will at the initial conference with his 94 year old client when she gave him instructions for a new will.

The court of appeal found that the client, Mrs Fischer, 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:

a duty to take reasonable steps to achieve, by the exercise of the care and skill of the ordinarily skilled solicitor, two things: first, fulfilment of the client’s objective of making a formal will according to the agreed timeframe and, second, the avoidance of any reasonably foreseeable frustration of that objective.

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.

The decision largely turned on the facts of the case but it is still a good reminder for practitioners to consider their client’s circumstances as well as physical and mental condition when taking instructions for a will. Advice about an informal will should be given if there is a likelihood that a formal will may not be executed within time.