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  • Claims against solicitors by disappointed beneficiaries on the basis of delay in will preparation are on the increase.
  • Following the first instance decision in Howe v Fischer there has been concern and uncertainty as to the extent of a solicitor’s duty to procure and/or execute an informal will at the time of taking instructions.
  • The Court of Appeal decision has now clarified the uncertainty.
  • The application to the High Court for Special Leave to Appeal from the decision of the Court of Appeal was dismissed on 8 April 2015.
  • Solicitors should consider potential risks to the testator such as imminent death or loss of capacity when taking instructions to draft a will.

All solicitors who accept instructions to draft wills should be familiar with the decision of the Court of Appeal in Howe v Fischer [2014] NSWCA 286 (26 August 2014).

In these proceedings, the testator’s son brought an action against the testator’s solicitor, seeking damages for a breach of duty of care owed to him as a disappointed beneficiary under a proposed new will. The son alleged that the solicitor was negligent in failing to procure the signing of an informal will at the time of taking instructions. The elderly testator, who was otherwise in good health, died before a new will was prepared.

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