By Peter Moran and Toby Blyth -
Snapshot
- Ensure your client has capacity
- Full instructions are essential.
- Take detailed (typed) notes and retain them indefinitely.
- Follow up with your client.
- Consider an informal will in appropriate cases.
Practitioners will be aware of a raft of recent cases dealing with claims by disappointed beneficiaries. Liability can be long tail (occurring years after the will was drafted) and the costs well out of proportion to the fees charged. As the composition of families and the economy changes, practitioners are likely to see more claims. In this article we look at some common risk management issues for will drafters.
The following case studies illustrate some of the risks that must be borne in mind when taking instructions. They are followed by practical tips to avoid similar outcomes.
Urgent instructions
Case study: A solicitor was called to visit a friend (who was also a longstanding client) in hospital with very serious burns. The client gave instructions for a will, which were written on a piece of paper, but the client died before he could sign it. The solicitor was found negligent for failing to consider/use an alternative procedure whereby the solicitor signs the will at the direction of the client: Summerville v Walsh NSWCA unreported 26.02.1998. Practitioners should note that the section of the Succession Act referred to in this case has since been repealed. For the current legislation please see s 8 of the Succession Act, which strictly speaking does not set out any specific form of informal will. (See also Howe v Fischer [2014] NSWCA 286).
Practice tip:
- Consider preparing an informal will if you are on notice that death is imminent.
