What is an informal will?
The High Court of Australia recently dismissed an application for special leave to appeal a NSW Court of Appeal decision in relation to a solicitor failed to offer the option of an informal Will to a client.
The background was as follows:
Mrs Fischer retained a solicitor, to prepare a new Will for her. On 25 March 2010, the solicitor attended on Mrs Fischer’s home to discuss her instructions for her new Will. The solicitor told Mrs Fischer that he would prepare a draft Will for her and would come and see her again in the week after Easter as he was going away. Mrs Fischer agreed with this as she wished for her son who would not be back in Sydney until after Easter to be present at the next meeting. Unfortunately Mrs Fischer died on 6 April 2010, with no new Will. Probate in solemn form of a Will Mrs Fischer signed four months earlier was granted.
Mrs Fischer’s son, who missed out on receiving a further 25% share of Mrs Fischer’s estate, commenced proceedings in the Common Law Division seeking damages for breach of duty of care owed to him as a disappointed beneficiary under the proposed new Will.
The Court at first instance found that the Solicitor was liable for damages as he was negligent in failing to have Mrs Fischer sign an informal Will when he visited her home on 25 March 2010.
The Solicitor appealed the decision. The Court of Appeal upheld the appeal.
The Court of Appeal found the following:
- the duty of care owed by the solicitor to the disappointed beneficiary (Mrs Fischer’s son) was limited by the terms of the retainer (costs agreement) that the solicitor had with Mrs Fischer;
- the retainer did not extend beyond the preparation of the formal will, as requested by Mrs Fischer;
- The Solicitor was under a duty of care to exercise reasonable care and skill in the preparation of Mrs Fischer’s formal will and to avoid any reasonably foreseeable frustration of that objective.
Therefore the Court of Appeal rejected the primary judge’s findings that Mrs Fischer had a settled testamentary intention when the appellant visited her home on 25 March 2010; that there was a “not insignificant risk” that Mrs Fischer might lose her testamentary capacity before the scheduled return visit; and that the appellant knew or ought to have known about this risk. The Court found that there had been no breach of duty and ordered that the Common Law judgment be set aside and be entered in favour of the Solicitor.
Mrs Fisher’s son applied for leave to appeal the decision to the High Court which was denied.
In the writer’s opinion this case emphasizes the importance, of signing an informal Will if there is going to be any delay between you giving instructions in relation to your Will and signing a formalized Will. If you were to pass away after signing an informal Will but before signing a formal Will, your wishes could still be upheld as an application could be made to the Court dispensing with the formal requirements of a Will and declaring your informal Will your last Will and Testament.
More about informal Wills
For more information about informal Wills or estate planning in general please contact Turner Freeman Lawyers Wills and Estates Department.