By Peter Moran -
Snapshot
- The recent Court of Appeal judgment in Howe v Fischer provides new clarification regarding the obligation to provide advice on the creation of an “informal will”
- 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
- Solicitors need 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 time frame agreed between solicitor and client
Case overview
The recent Court of Appeal judgment in Howe v Fischer [2014] NSWCA 286 has provided some clarification on the obligation to provide advice on the creation of an “informal will”.
A solicitor was sued by a beneficiary who would have taken a greater share of his mother’s estate had a last will and testament, that the solicitor was instructed by his mother to prepare, been prepared and executed before 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 and then procuring such a document from her.
At first instance (Fischer v Howe [2013] NSWSC 462), Adamson J found that the solicitor did owe such a duty and that he was in breach of that duty. Accordingly, damages of more than $950,000 plus costs were awarded to the beneficiary.
Lawcover successfully appealed. The damages finding was overturned, and the beneficiary/claimant was ordered to pay Lawcover’s costs of the trial and appeal.
