By Rosslyn F. Curnow Nolch, Principal

Rosslyn Nolch Solicitors

Publisher’s Note: The outcome in Howe v Fischer [2013] NSWSC 462, discussed in this article, was overturned on appeal in Howe v Fischer [2014] NSWCA 286. Following the decision on the appeal, unless the instructions for the will are concluded and unless there is reason to think the testator is at imminent risk of death, then it appears a solicitor is unlikely to be held negligent for failing to advise about, or to procure, an interim will. However each case will turn on its facts and solicitors should take utmost care.

Every case of course turns on its own facts, but two recent cases, and an ageing population, highlight the need for consideration of a number of issues when agreeing to take on a new wills matter.

1. Fischer v Howe [2013] NSWSC 462

The lawyer was asked to act for a new client in relation to her will. The willmaker (W) had made a number of formal wills between 1982 and 2009 and wished to change certain dispositions in her then latest will made in 2009. In particular, W wished to leave the plaintiff in this matter a 50% share of her estate in lieu of the 25% left to him in the 2009 will.

W had lost faith in her previous lawyer and asked her doctor if she could recommend a lawyer. The doctor knew the defendant lawyer and contacted him, and in the course of the conversation noted that she believed W had testamentary capacity as she was of sound mind, although physically frail. Subsequently the lawyer spoke directly with W and then attended her home, where she resided with the assistance of a carer, two days later (25 March 2010).

At the time of the attendance, the lawyer took instructions during a lengthy conference. He was not provided with details of the 2009 will.

It is pertinent to note that during that conference, as well as stating her wishes in respect to the change in disposition to the plaintiff, W:

1. did not reveal her age (94), other than by reference to the ages of her children;
2. wanted her previous lawyer and accountant removed as executors and, when asked who she wanted as executor, ‘suggested that the defendant could be appointed. He (the defendant) advised her to think about whom she wanted and to let him know when he presented her with a draft of the will.’;
3. did not appear to be suffering from ill-health or appear to be exhausted from the lengthy conference.

This conference was shortly prior to the 2010 Easter holiday. At the conclusion of the conference the lawyer told W that he would be away on leave over the Easter break and would not return to work until after Easter. It was proposed that the lawyer would prepare a draft will and attend W during the week after Easter, with which W agreed, also stating that she would like the plaintiff to be present at that meeting. The lawyer left with instructions, and was to contact W upon his return from leave.

Later that day W spoke to the plaintiff over the telephone and told him that she had seen a lawyer and wanted to ‘schedule’ him to attend after Easter when the plaintiff could be present.

Subsequently, over a very short period of time during which W refused to be admitted to hospital, W became ill. On 31 March 2010 the lawyer commenced leave (Good Friday was 2 April 2010). W died on 6 April 2010, without executing a new will, and her doctor was ‘shocked’ that she had passed away at that time.

Following objections on the basis of a lack of testamentary capacity by a family member left out of the 2009 will, that will was finally admitted to probate with some modifications (which did not affect the plaintiff’s entitlement of 25% under that will). Subsequently the plaintiff brought an action against the lawyer for his ‘lost’ 25%, being the difference between what he received under the 2009 will (25%) and what he would have received under the ‘new’ will had it been made (50%).

What appears to have told against the lawyer was that he was very experienced, had a short time previously attended a seminar on informal wills, and that ‘The defendant accepted that there was no practical impediment to his making an informal will at the conclusion of the conference since it would not have taken long and there was no indication that the deceased’s attention or energy was flagging. He admitted that he did not give any consideration to an informal will which the deceased could have signed that day or shortly thereafter’.

The court stated (at 97):

I consider that the defendant was negligent in failing to procure an informal will at the conference on 25 March 2010. He could have done so. His failure to do so was a breach of his duty to exercise reasonable care. Although the deceased may not have been at risk of imminent death as [the doctor] understood the term, being at risk of dying within hours or within a day, she was, by reason of her age, lack of mobility, need for care and infirmity, 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. There was no reason for her, or her intended beneficiaries, to be subjected to that risk in light of her settled testamentary intentions, both as to dispositions and as to her desire to change her executors, and the circumstance that it was the solicitor who was responsible for the delay.

And (at 102):

The only thing that would have relieved the defendant of the obligation to procure an informal will would have been the deceased’s express instructions that she did not wish to take that course. No such instructions were forthcoming nor could they have been because the defendant did not raise the option with her. I do not accept that the preparation of an informal will was in any way inconsistent with the later execution of the formal will at the conference in April. To the contrary, the purpose of the making of an informal will was to safeguard the implementation of her testamentary intentions against the possibility that the deceased would lose her testamentary capacity either through death or stroke or other event to which her advancing age and frailty made her increasingly susceptible.

The plaintiff was awarded the difference between 25% and 50% of the estate against the lawyer.

1. Maestrale v Aspite [2012] NSWSC 1420

On 8 July 2002 the lawyer met with the deceased, who was on a day release from hospital, and took instructions for a will – this had been arranged by the plaintiff. Subsequently, on 15 July 2002, the lawyer attended the hospital with the original will for the purposes of having it executed, but unfortunately the deceased died 10 minutes before he arrived.

The plaintiff’s contentions, many of which the court accepted, included that:

• he had asked the lawyer on several occasions in the three weeks leading up to 8 July 2002 to attend his father for the purposes of making a new will (under which the plaintiff was to receive a greater share than provided in an earlier will);
• the lawyer negligently failed to have the deceased sign his instructions at the meeting 8 July 2002 (as an informal will);
• he had contacted the lawyer on 12 July 2002 and 13 July 2002 to say that his father’s health was deteriorating.

In response, the lawyer said that:

• it was not until the morning of 8 July 2002 that any arrangement was made for him to meet with the deceased;
• while he understood that the deceased had been diagnosed with cancer, the plaintiff had told him the doctors believed he had six months to live, and that the deceased gave him the same information on 8 July 2002, at which time the deceased appeared to be in a reasonably stable condition;
• had the plaintiff informed him of the urgency, he would have attended the deceased without delay, but denied having been so informed;
• he was aware of the applicable informal will provisions (section 18A Probate and Administration Act 1898 (NSW)) 2, but did not advise the deceased of the option of making an informal will because of his assessment of the deceased’s general state of health on 8 July 2002 together with the information the deceased gave him at that time that his doctors had given him some months to live.

The court considered the evidence of various experts and inter alia quoted from Hill v Van Erp [1997] HCA 9 where the solicitor was held liable to the intended beneficiary, the disposition being ineffective because the husband of the intended beneficiary was asked to attest the will:

Thus, when a solicitor accepts responsibility for carrying out a client’s testamentary intentions, he or she cannot, in my view, be regarded as being devoid of any responsibility to an intended beneficiary. The responsibility is not contractual but arises from the solicitor’s undertaking the duty of ensuring that the testator’s intention of conferring a benefit upon a beneficiary is realised. In a factual, if not a legal sense, that may be seen as assuming a responsibility not only to the testatrix but also to the intended beneficiary.

The court also quoted from Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 where a ‘disappointed beneficiary’ was unsuccessful:

It may be accepted that whenever a solicitor takes instructions to make a will, there is a potential for a duty to arise in favour of third parties who may be damaged if the solicitor fails to discharge the retainer with due care. Whether a duty actually arises in favour of a particular third party depends upon a variety of circumstances, and these have not by any means been clearly identified by the cases. … Hill v Van Erp, suggests a variety of potential matters including foreseeability of loss to the third party, control of the situation by the solicitor, proximity between the solicitor and the third party, general public reliance on satisfactory performance by solicitors, assumption of responsibility to discharge the retainer properly, the powerlessness of the third party to do anything to protect himself or herself, whether or not there is any conflict between the duty owed to the client and the alleged duty to the third party and perhaps other matters also.

There is as yet no consensus as to which matters are dominant or any formula which will guide a trial judge in formulating tests that will determine whether or not such a duty is owed. However … (i)t is up to the client to indicate when he or she is ready to make a particular will. Attempts by a solicitor to hurry up an undecided client or to seek to benefit particular beneficiaries are fraught with danger. Recognising this, Courts should be slow to inflict busybody functions or duties of this kind upon solicitors or other professional advisers.

In the circumstances of the present case, particularly in the absence of indication from the testatrix that she wanted to finalise the matter at least to the extent of executing a will that would secure a particular benefit to the art gallery, I do not consider that the stage was reached at which any duty of care arose on the solicitor’s part in favour of the art gallery.

The court then noted (at 106) that the situation in this case was distinguishable from the latter case, and that the deceased ‘had given clear and unambiguous instructions to (the lawyer) to prepare a will under which he intended that the plaintiff would benefit, to a material degree, differently from his other children. There is nothing to indicate that (the deceased) was uncertain as to his testamentary intentions at the conclusion of the (8/7/2002) meeting and everything to support the inference that he was thereafter awaiting the attendance of (the lawyer) to render those intentions final and enforceable.’

And (at 107):

By accepting those instructions, and in pursuance of carrying them out, … (the lawyer) had a coexistent duty to the plaintiff to ensure that in the event of any change in his father’s health or capacity he would make prompt arrangements to attend with a formal will or, if time did not permit, to attend with the file notes so that they might be signed and an informal will created. The breach of duty did not reside in an unduly dilatory approach to preparation of the will by allowing the passage of seven days before the will was prepared but in his failure to respond to the plaintiff’s urgent calls for advice and attention in the interim.

The court awarded damages against the lawyer based on the difference between what the plaintiff received under the ‘old’ will, and what he would have received under the ‘new’ will (with some adjustment for other factors pertaining to the deceased’s expressed wishes).

Other relevant points

Our professional rules, in respect to which the Australian Solicitors’ Conduct Rules (yet to be implemented) are very similar, highlight some areas where an ‘urgent’ will situation can put the lawyer in peril, for example (in addition to rule 10):

• Agreeing to Act for a Client (Rule 2): consider what might be deemed diligently attending to the work required with ‘reasonable promptness’ in the circumstances;
• Maintaining confidentiality (Rule 3): consider how to best effect ‘deathbed’ instructions when co-ordination with family members is required (particularly where they are existing clients, as is often the case);
• Avoiding conflicts of interest between clients and between the client’s and the practitioner’s own interest (Rules 8 and 9) 3: consider how one ceases to act if a material conflict arises when the willmaker’s health is failing.

We also should consider one of the suggestions contained in the 2012 Victorian Law Reform Commission’s Review of Succession Laws that willmakers be obliged to obtain a medical certificate before giving instructions for making a will 4, and also the suggestion that a person authorised to take affidavits or a medical practitioner act as a witness5.

So the questions we might need to consider before accepting instructions for wills include:

• Is it urgent, not only in time but in terms of the willmaker’s health?
• Is it urgent from the willmaker’s point of view, or are there really issues of capacity with the urgency being from the point of view of the intended beneficiary?
• Can one attend to the matter promptly (as in immediately, foregoing holidays, other emergencies etc.)?
• Is one able to assess competency immediately, as opposed to a slightly longer but more considered approach; and/or is there a legislative requirement for a medical certificate before instructions can be taken, in which case whose responsibility is it to pursue this?
• Is one prepared to write up an informal will ‘on the spot’ if the need arises, including adequate consideration of potentially difficult areas such as excluding immediate family members who would ordinarily expect to benefit?
• Is an informal will recognised in the lawyer’s particular jurisdiction, at present 6, or in the future if additional legislative requirements are imposed?
• What are the risks in errors being made in a hasty informal will, as opposed to one prepared in the serenity of one’s office with precedents and all necessary information to hand?

We also need to consider potential risks, some being obvious and some perhaps not, including:

• The willmaker may not really want a (new) will, but in the perceived immediacy of the matter the lawyer is given little time in which to give this considered attention, particularly if s/he is being pressured by such statements as ‘If mum dies before this will is signed …’ (we all know how this goes).
• If the (new) will is made, disappointed beneficiaries may allege all sorts of improprieties against the lawyer.
• If the (new) will is not made, disappointed beneficiaries may allege their ‘disappointment loss’ is in direct proportion to the alleged negligence of the lawyer.
• Indicators of diminished competency may be missed in the immediacy of the matter, particularly if the lawyer has not acted for that willmaker previously.
• An informal will prepared in haste may not meet applicable jurisdictional requirements (see point 3).
• Drafting errors may be made in the haste to prepare a will.
• If the willmaker indicates they want the lawyer to act as executor the lawyer may be caught between refusing or asking the willmaker to consider further, leaving him/herself open to accusations of delay; or agreeing, and being accused later of coercing the willmaker to make the appointment and failure to comply with the professional rules.
• There may be a higher risk of conflict between the interests of the willmaker, the interests of family members if they are existing clients, and also the interests of the lawyer in ensuring that all ethical duties are met as well as a personal interest in not being taken to task afterwards.

So whilst every person should be able to access legal assistance when and where required, there are evolving difficulties in regard to this area of law, and it may well be that in the future only specialist firms are willing to accept this type of work.

Note: Contributed by Rosslyn Nolch, Solicitors, for educational purposes only, and originally prepared for Wills, Powers of Attorney & Enduring Power of Guardianship (VIC) – Step-by-Step Legal Practice Guide and Precedents By Lawyers For Lawyers.

The interpretation is that of the author, and the reader should research all of the materials referred to for him or herself. Primary source of case information unless otherwise noted:

https://www.austlii.edu.au/.

This article does not constitute legal advice.

NOTE:

1. See also In Check Issue No. 59 www.lplc.com.au.
2. Section 18A Probate and Administration Act 1898 (NSW).
3. See also the 2012 Victorian Law Reform Commission’s Review of Succession Laws, referred to below, Point 2.43 and Question W5.
4. Point 2.43 and Question W4.
5. Point 2.17 and Question W1.
6. See for example: Fast v Rockman [2013] VSC 18 where an unexecuted Will was admitted to Probate as a document the deceased intended to be his Will, notwithstanding that he had not actually seen it (but had seen an earlier unexecuted Will to which he wanted minor changes); Re Will and Estate of Brian Bateman [2011] VSC 277 where an informal (draft) Will was admitted to Probate, and Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors [2007] VSC 415; and Estate of Baier [2013] NZHC 504 where a Will approved by telephone by the deceased was admitted pursuant to section 14 Wills Act 2007 (details courtesy Envoy June 2013, NZILE); contrasted with the result in Prucha v Standing [2011] VSC 90 where the Court found the deceased had not intended the document to be his last Will.

Tip Box

Whilst written for Victoria practitioners this article has interest and relevance for practitioners in all states.