How urgently should a solicitor treat instructions for a new will from a frail but healthy and alert 94-yr-old, living independently with the assistance of a carer?

That question confronted Sydney city centre lawyer Graham Howe who took instructions from Marie Fischer at her home on 25 March 2010 just prior to easter.

With her concurrence he proposed a draft of her new will – her ninth – be sent for consideration by post and he would return to her residence two weeks later, after the public holidays.

French born Madame Fischer died at the beginning of the week he was to return.

Her 72-yr-old son Henry and granddaughter Lilly sued Howe for not working more quickly to secure the greater benefits they would have received under the new will which reduced a bequest of 30% of the residuary estate to her carer and the 10% destined for international aid organisation Medecins San Frontieres.

Lilly settled her claim before trial but Henry was rewarded for pressing on with a judgment in May 2013 for 950k in damages and interest.

The trial judge ruled that the nonagenarian ought to have been accorded the same urgency as “a client who is dying in a hospital bed or about to make an overseas trip” and that it was unacceptable that Howe scheduled his return solely “to suit his own commitments”.

Howe’s retainer was, according to Justice Christine Adamson of the NSW Supreme Court, “to give legal effect to the deceased’s intentions and not merely to prepare a formal will and arrange for its execution”.

The appropriate course, in her honour’s view was to have the testator sign “an informal will” at the conclusion of the March meeting to take into account the risk of her dying or “falling and sustaining a serious injury or having a stroke or other cerebral event”.

She was referring to Section 8 of the NSW Succession Act (the equivalent of Qld Succession Act s 22) allows testamentary instructions signed in a way that fell short of the formal necessities for the making of a formal will, to be validated in some circumstances by the court.

Howe should have been alert to such measure and should have “procured” a signed memorandum recording her intentions on the spot.

Three appeal judges unanimously rejected all of her honour’s rulings.

There was, in their view, simply no justification for categorising the urgency for her will with that of a person on their deathbed in hospital.

While “it is obvious that a person aged 94 has a life expectancy shorter than someone of age 34, 54 or 74, …there was nothing to indicate that Mrs Fischer’s medical condition was such as to indicate impending death”.

But most importantly, the retainer was to prepare a formal will and arrange its subsequent execution. Such course had been followed for each of the eight previous wills the testator had commissioned.

Mme Fischer had accepted the proposal that a draft will would be sent to allow re-consideration of who should be appointed as executor and of the altered bequests themselves. The proposition that the solicitor was commit her to a testamentary intentions – then and there at the time of consultation – was nonsense.

But even if the trial judge’s formulation of the retainer were to be accepted, the most that would have been required of the solicitor – so ruled the court – “was to advise his client of the possibility of immediately signing a memorandum of instructions that might, in the event of a calamity occurring in the next two weeks, be produced for adjudication”.

There could never have been any duty to “procure” the client to do anything in response to that advice.

Howe v Fischer [2014] NSWCA 286 Beazley P Macfarlan JA Barrett JA 26/08/2014



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