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Informal Wills, When is it Necessary?

The recent decision of in Howes v Fisher[1] provides a lifeline to Australian wills and estates lawyers. The NSW Court of Appeal overturned Justice Adamson’s judgement that found that a solicitor was negligent in not offering to make an informal Will for the deceased.

The Facts

The deceased died on 6 April 2010. The son brought an action in negligence against the Solicitor for failing to make an informal will that expressed the deceased’s instructions for a new Will that she wished to execute and change the executor and disposition of property under her earlier Will made in 2009.

Under the 2009 Will the son was left 25% of the residuary estate. On 25 March 2010 the deceased instructed the solicitor to prepare a Will which left her son 50% of her residuary estate. The son claimed the difference.

Before her passing, the deceased had made 9 different Wills between 1982 and November 2009. All of which were formal Wills.

The deceased retained the solicitor to prepare a new Will for her. The solicitor attended on the deceased at her home and took instructions to prepare a new Will for her which changed her executor, provided legacies to a charity, her carer and left 50% of her residuary (what was left over) estate to her son, 25% to her granddaughter and 25% to her grandson. At the time of the visit the deceased was 94 years of age.

At the meeting the solicitor told the deceased that he would be on holidays and when he returned he would prepare a draft Will and see her. The deceased agreed to this.

The deceased died on 6 April 2010 before executing a formal Will which reflected her new instructions to the solicitor.

The Appeal

On appeal the Court held that the primary judge had erred in finding that:

  1. Mrs Fisher had a settled testamentary intention when the solicitor visited her on 25th March 2010;
  2. There was a “not insignificant risk” that Mrs Fisher might lose her testamentary capacity before the solicitor was scheduled to return to visit and the solicitor know or ought to have known about this risk; and
  3. The solicitor was responsible for the delay in the preparation of the formal will.
  4. The solicitor’s retainer was to prepare a formal will and arrange for its execution according to the agreed timeframe.
  5. The solicitor’s duty was to bring to bear the reasonable care and skill of the ordinary practitioner exercising and professing to have the special skill relevant to the field of professional practice.
  6. That a solicitor’s duty to a disappointed beneficiary under a will is circumscribed by the terms of the retainer with and the instructions of his or her client, to whom the primary duty is owed, such that any breach of the retainer by failing to take reasonable care to perform and fulfil it would also be a breach of the solicitor’s duty to an intended beneficiary.

What does the decision mean for me?

In practice an informal may only be offered to a client if there is a risk of imminent death. However if you are concerned, when you have given instructions to a solicitor and you are unable to sign a formal Will that same day, ask the solicitor if you can sign the instructions. This would mean that if anything happened to you between giving instructions and signing the formal Will, your instructions could be admitted as an informal Will to the court.

Should you have any queries or require any further information on informal Wills please contact the writer, Jenna Hutchinson on (07) 3025 9059.

[1] [2014] NSWCA 286

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