Declaration of interest: CBP Lawyers acted for Lawcover in the case discussed in this article.

In brief - Duty of care should be exercised but terms of the retainer are key

A recent NSW Court of Appeal judgment in Howe v Fischer has provided some clarity on whether solicitors failing to advise clients on the "informal will" provision of the Succession Act are in breach of their retainer or their duty to an intended beneficiary.

Disadvantaged beneficiary sues solicitor for professional negligence

In the first case, Fischer v Howe [2013] NSWSC 462, a solicitor was sued by a beneficiary who would have taken a greater share of his mother's estate if a last will and testament that the solicitor was instructed by his mother to prepare, had been prepared and executed prior to her death.
The primary issue before the court was whether the solicitor owed a duty - to the intended beneficiary - to advise the testatrix client of the possibility of creating an informal will, then procuring such a document from her.

Judge finds in favour of beneficiary but decision is appealed successfully

At first instance, Adamson J found that the solicitor did owe such a duty and that he was in breach of it, resulting in a damages award to the beneficiary of over $950,000 plus costs.
Lawcover successfully appealed the first instance decision in the NSW Court of Appeal, in Howe v Fischer [2014] NSWCA 286. The damages finding was overturned and the claimant, the disadvantaged beneficiary, was ordered to pay Lawcover's costs of the trial and appeal.

No doubt on client's testamentary capacity nor health

The solicitor, Mr Howe, was approached by his GP, Dr Zwi - who was also the GP to  Ms Fischer (a widow in her 90s) - about drafting a new will for Ms Fischer. Arrangements were made and the solicitor met with Ms Fischer in late March 2010. 
Although Ms Fischer was elderly and frail and had a full time carer, there was nothing to the solicitor's observation, nor anything that had been said by the GP, to indicate impending death or loss of testamentary capacity.

Testatrix gives instructions for a new will

Mr Howe spent approximately 90 minutes obtaining instructions for a new will. The primary issues from the solicitor's perspective were that Ms Fischer had lost confidence in her accountant, who was one of her executors under the existing will, and that she wanted to increase the share that her son would take as beneficiary from 25% to 50%. 

She also explained that she did not want to leave anything to her daughter. The solicitor took notes of his instructions and provided initial advice about a possible Family Provision Act claim.
At no stage during the conference did Ms Fischer appear to the solicitor to be suffering from ill health. She did not complain about the length of the conference, nor did she disclose any medical problems.

Draft will was to be presented to client after Easter break

By the conclusion of the conference, the solicitor and client arranged to meet again in approximately two weeks' time, when the solicitor would return with a draft will. In the interim, the solicitor would be away over the Easter break. 
That suited Ms Fischer because she indicated that she wanted her son, who was returning from overseas, to be present for the later meeting.
Unbeknown to the solicitor, subsequent to the initial conference, Ms Fischer informed her son that she wanted not only him, but also her GP and a barrister friend to be present when Mr Howe returned with the draft will.

Previous will goes to probate after client dies before finalising new will

Regrettably, Ms Fischer died before the end of the Easter break and before the solicitor had returned with the draft will. Ms Fischer's 2009 will went through to probate and the son's position as beneficiary remained at 25%, rather than moving up to 50% as was contemplated in Ms Fischer's discussions with Mr Howe.

Client's son sues for professional negligence

The son then brought professional negligence proceedings in the Supreme Court of NSW against the solicitor. He alleged that the solicitor owed a duty to him (as a non-client intended beneficiary) to draw up a will in manuscript during the conference that the solicitor had with his client Ms Fischer, and to have such a document executed by her, so that those testamentary wishes could be recorded as an "informal will" for the purpose of section 8 of the Succession Act 2006, and admitted to probate.

Duty of care on carrying out testamentary intentions

After referring to appellate authorities including Hill v Van Erp [1997] HCA 9, White v Jones [1995] UKHL 5, Summerville v Walsh [1998] NSWCA 222 and Maestrale v Aspite [2012] NSWSC 1420, Adamson J said at [88] that those "...authorities illustrate that the duty of care owed by a solicitor to intended beneficiaries extends to the means by which a solicitor can ensure that a testator's wishes are carried out." 

Her Honour found there were two principal mechanisms whereby a solicitor can ensure that a client's testamentary intentions were legally effective - first, by drawing up a formal will and ensuring that it is executed; and secondly, by drawing up an informal will which would take effect by reason of section 8 of the Succession Act.

Her Honour found that the solicitor's retainer by Ms Fischer was a retainer "… to give legal effect to the deceased's testamentary intentions, and not merely… to prepare a formal will and arrange for its execution" (at [90]). She then said that, in those circumstances, the duty to the intended beneficiary required the solicitor to "...procure an informal will..." (at [91]) at the time of the conference when the initial instructions were taken.

Court finds client had settled dispositive intention

There were a number of matters which Her Honour made particular reference to in reaching the conclusion that she did, including:
  • Ms Fischer had a settled dispositive intention.
  • The settled nature of her intentions was indicated by Ms Fischer's comments to her son - following the conference - that she wanted the son, her GP and the barrister friend to be present at the time when the solicitor returned with the draft will.
  • The solicitor knew that Ms Fischer was at least in her 90s, had difficulties with mobility and required a carer, and was at greater risk of having a fall or sustaining a serious injury or stroke.
  • There was no practical impediment to the solicitor drawing up an informal will when he was present at the time of the initial conference.

Court recognises client's risk of losing testamentary capacity

The court held that the solicitor was negligent in failing to procure an informal will at the time of the conference; that by reason of Ms Fischer's age, lack of mobility and need for care 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 [meeting when a draft will would be discussed]". 
Her Honour thought there was "…no reason for [Ms Fischer], or her intended beneficiaries (i.e. including her son, the plaintiff) to be subjected to that risk in light of her settled testamentary intentions..." (at [97]).
In finding in favour of the plaintiff, Adamson J awarded the difference between what the plaintiff/beneficiary took under the pre-existing will (25% of the residuary), compared to the 50% that he would have received if an informal will had been procured.

Potential repercussions for solicitors who draft wills 

If the first instance judgment had remained unchallenged, in my view there were a number of material issues for solicitors engaged in will drafting:
  • The necessity to bear in mind the interests of someone who is not the client - namely the intended beneficiary - more than the interests of the actual client, the testator/testatrix.
  • The obligation to proffer advice on the possibility of creating an informal will where such advice was not sought.
  • The obligation to encourage a course that was not a course agreed to with the client, merely because it suited the interests of a non-client beneficiary (i.e. advocating an informal will procedure when the client instead wanted to have a meeting once a proper draft will was prepared and for such a meeting to include family members and others).
  • The need to "procure" an informal will from a testator/testatrix client when that may be something that the client does not seek or desire.
  • The need to exercise a medical judgment (for which he/she is untrained) as to whether a client is close to death or at imminent risk of losing testamentary capacity when there are no indications that that is the case, nor any comment from the client or others as to any need for urgency.

Erroneous judgment overturned by Court of Appeal 

In Howe v Fischer, the Court of Appeal found that the primary judge's conclusion, that the solicitor's retainer by Ms Fischer was not merely to prepare a formal will and arrange for its subsequent execution but "… to give legal effect to [her] testamentary intentions …" (at [73]), was erroneous. 
The court also set aside the primary judge's finding that performance of the solicitor's retainer entailed "procuring immediate execution of an informal will".
Ms Fischer had made a number of formal wills on at least nine occasions between 1982 and 2009. In each case the will was typed in a solicitor's office and followed a familiar process, i.e. the solicitor on each of the earlier occasions took instructions, drew the will at some later point in time, then again met with the client to check the will, ensured that it met Ms Fischer's requirements, then - if so - that it was executed. 

Express terms of the retainer not breached by solicitor

It was clear from the evidence that Ms Fischer intended the same course to be followed for the will to be prepared by Mr Howe. She understood and accepted that he would return with a draft at a future point in time and wanted three people present when he did return for a further conference. 
That intention by Ms Fischer, and the agreement for the return in two weeks' time, formed express terms of the retainer. The evidence did not suggest an obligation to give effect there and then to testamentary intentions, nor to procure - at the time of the initial conference - immediate execution of an informal will.
Given that there was no failure on the solicitor's part to perform his solicitor/client retainer, there was no breach of the duty that he owed to the beneficiary/son.

Solicitor's duty to take reasonable precautions

However, the court found that in circumstances where - to a solicitor's knowledge - there is some factor at work that as a matter of reasonable foresight might cause the legal result sought by the client (i.e. the testator or testatrix) to be frustrated, it was part of a solicitor's duty to take such reasonable precautions - if any - as were available to avert that consequence.
In those circumstances, the duty of a solicitor to the intended beneficiary arising from the retainer by the testator/testatrix is a duty:
… to take reasonable steps to achieve, by the exercise of care and skill of the ordinarily skilled solicitor, two things: firstly, 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 [70].

Client retainer and duty of care to beneficiary

The court did find that the fact that the solicitor had been retained by Ms Fischer to prepare a will under which the plaintiff was to be a substantial beneficiary resulted in a duty of care to the plaintiff, but that the duty to the beneficiary took its content from the retainer by the testatrix. So, any breach of the retainer by failing to take reasonable care to perform and fulfil it will also be a breach of the solicitor's duty to the intended beneficiary.
The court cited Brennan (at 171) in Hill v Van Erp that: "… the duty of care owed by the solicitor to the intended but disappointed beneficiary is in the performance of the work in which he owes a corresponding duty - albeit contractually - to the testator" (at [71]). Tobias AJA (in Vagg v McPhee) was also quoted: "...the solicitor's duty to the disappointed beneficiary is circumscribed by 'the terms of the retainer and the instructions of the client, to whom the primary duty is owed'" (at [72]).
The Court of Appeal went on to find that even if the primary judge's formulation of the retainer was accepted (which it wasn’t), the most that could have been required of the solicitor was the exercise of reasonable care in advising Ms Fischer that it was possible for her to sign, virtually immediately, a statement of testamentary intentions in the expectation that, if she died or lost testamentary capacity within the next two-week period, the Supreme Court might make an order under section 8 of the Succession Act
The appeal judges refuted the suggestion that there could be any duty on a solicitor to "procure" Ms Fischer to do anything in response to that advice.

Appeal judges find there was no breach of retainer

However, the duty to call attention to the possibility of making an informal will would only arise if the solicitor was aware that some factor was at work that, as a matter of reasonable foresight, might cause Ms Fischer's objective of making effective testamentary dispositions by means of a formal will two weeks later to be frustrated.
The appeal judges found that there was no basis on which the solicitor could have been held to be so aware and accordingly, there was no breach of retainer.

Lawyers should focus on terms of retainer, exercise care and consider section 8 obligation 

It is a favourable and, I think, commonsense approach. The solicitor is required - correctly - to focus on the terms of his or her retainer with the testator or testatrix client. While the obligation to understand and apply section 8 of the Succession Act remains, it is not something that needs to be called into play on each occasion.
Rather, the solicitor needs to exercise the usual standard of care and foresight in determining whether there is any factor that might frustrate the client's objective of making effective testamentary dispositions by means of a formal will in the timeframe agreed between solicitor and client. A solicitor might consider:
  • Is there something to be aware of that might suggest imminent death or loss of testamentary capacity or other need for urgency? 
  • Is the client under intensive medical care in hospital? 
  • Is the client about to embark upon an overseas journey to some perilous location? (e.g. a soldier urgently called to a war zone)
  • Is there some indication (e.g. via medical evidence) that suggests a real risk of imminent loss of testamentary capacity?
Unless factors such as these exist, my interpretation of the Court of Appeal's judgment is that it is not a breach of a solicitor's retainer, nor a corresponding breach of a solicitor's duty to an intended beneficiary, to fail to bring to the testator/testatrix client a discussion about informal wills and section 8 of the Succession Act on each will-drafting exercise.
An abridged version of this article first appeared in the December 2014 edition of Law Society Journal.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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