- Practitioners should be aware of the provisions of the Succession Act, which allow a testator(trix) to make an “informal will”
- There is presently a lack of clarity as to the circumstances in which a solicitor has an obligation to advise on, and procure, an informal will from his/her client
- Hopefully, the anticipated judgment of the Court of Appeal in Fischer v Howe will bring some clarity to the issue. In the interim, practitioners should err on the side of caution
The preparation and drafting of wills is a conventional part of legal practice. The legal issues concerning wills and estates have always engaged elements of formality and technicality.
However, in the 1989 amendments to the Wills, Probate and Administration Act, (now adopted in the Succession Act 2006), legislative reform took place which, at least in one aspect, allowed for less formality, rather than more.
Before the introduction of this legislation, the execution requirements for a valid will (generally speaking) required that the document be signed by the testator(trix) in front of two witnesses, who also needed to sign the will. Practitioners will be aware that the amending legislation permitted recognition of an “informal will”, which did not comply with the otherwise mandated execution requirements.
While these changes were seen as alleviating formal requirements in favour of testators, in one sense they have added additional complications, and burdens, for practitioners. In particular, one of the “risk management” issues for lawyers is the question of when a lawyer is obliged to make an informal will for his or her client.
This issue has been before the New South Wales Supreme Court on a number of occasions – with varying outcomes.
In May, the New South Wales Court of Appeal heard an appeal in the case of Fischer v Howe (first instance reference  NSWSC 462). Hopefully, the Court of Appeal will clarify the issue of when a solicitor is obliged to discuss with a client the making of an informal will, and proceed to make such an informal will.
There are two recent Supreme Court first instance decisions on this issue, which appear to be in conflict.