I often have clients who urgently require a Will as they have received a terminal diagnosis, are about to take a trip or are elderly. The question of whether or not a solicitor has a duty to prepare a Will and arrange for it to be signed as quickly as possible when the client is elderly or infirm has recently been considered in the case of Howe v Fischer [2014] NSWCA 286.

Background

The background of Howe v Fischer [2014] NSWCA 286 is as follows:

1. Mr H had visited Mrs F in her home to take instructions for a new Will;

2. Mrs F’s previous Will left 30% of her estate to her carer, 10% to Medecins Sans Frontieres, 25% to her son and the balance to four other family members;

3. Mrs F’s instructions for her new Will left $3,000.00 to Medecins Sans Frontieres and then 50% of the balance of her estate to her son, 25% to her granddaughter and 25% to her grandson;

4. Mr H was going on holiday soon after their meeting for Easter, so he offered to make an appointment to see Mrs F to sign her Will when he returned;

5. Mrs F decided she would like her doctor and a lawyer friend of hers to attend her next meeting with Mr H, so his proposed date was acceptable to her;

6. Mrs F passed away before she could sign her Will;

7. Mrs F’s son brought proceedings seeking damages for breach of duty of care owed to him as a disappointed beneficiary under the proposed new Will, as his benefit would have been far greater under the new Will than Mrs F’s current Will;

8. The Court found that Mr H had been negligent in not preparing an informal Will for Mrs F.

Appeal

Mr H appealed the decision. The Court of Appeal found that:

1.  The primary Judge had erred in finding that:

(a) Mrs F had made up her mind on all the instructions she had given Mr F at their initial meeting;

(b) There was a “not insignificant” risk that Mrs F might lose capacity before her meeting with Mr H to sign her Will;

(c) Mr H should have realised that this risk existed; and

(d) Mr H was responsible for the delay in the preparation of Mrs F’s Will.

2. Mr H had been retained by Mrs F to prepare her new Will, and while he was under an implied obligation to avoid any unnecessary delay in undertaking this work, he was not required to prepare an informal Will at his initial meeting with Mrs F for her to sign;

3. That Mr H’s duty was to bring to bear the reasonable care and skill of an ordinary solicitor exercising and professing to have the special skill relevant to being a solicitor; and

4. That a solicitor’s duty to a disappointed beneficiary under a Will is restricted by the terms of the solicitor’s retainer, and the instructions of his or her client, to whom the primary duty is owed.

I urgently need a Will prepared – what should I do?

Although it may seem efficient to pick up and complete a Will from your newsagency, these Will Kits can be problematic. If you need a Will prepared quickly, I strongly recommend you contact an estate planning solicitor. Please contact me should you require assistance or advice as passing away without a will can have big issues.