A recent Court of Appeal case in New South Wales has highlighted potential responsibilities for practitioners when taking Will instructions.

By way of background Section 8 of the Succession Act 2006 (NSW), outlines “When may the Court dispense with the requirements for execution, alteration or revocation of wills?”

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person’s will-if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside the State.

It has not generally been clear that the intention was for informal wills to become the norm. However, it seems as if the provisions have added some extra onus on practitioners to prepare informal wills when possible. A recent case under appeal to the Court of Appeal highlights the issue.

In Fischer v Howe [2013] NSWSC 462, the Court found that a solicitor was negligent in not preparing an informal will for a testatrix. The Testatrix was 94, in fair health and had full capacity. Her doctor contacted a lawyer and confirmed this. The lawyer met with her just before the Easter weekend and discussed considerable changes she wanted to make to her will. The lawyer did not consider any urgency in the making of the new will and advised her he would be away over Easter and would return the following week. She died on the Tuesday after Easter. Hew new will was never sighted by her or signed. Her son sued the lawyer as he was expecting a substantial change in his favour under the new will. The Judge said “The defendant was negligent in failing to procure an informal will at the conference on 25 March 2010. He could have done so. His failure to do so was a breach of his duty to exercise reasonable care”

This case does not mean that a solicitor must prepare an informal will for each and every client. However, in circumstances such as this, where instructions are clear and there is an appreciable risk of the testator losing capacity (or dying) it would seem to be prudent to, at the very least, have the client execute the instructions. If the instructions are incomplete or the testator still needs to give further consideration to them then this is not appropriate. Solicitors here in New South Wales should consider preparing an informal will for any testator who gives full and complete instructions as to what they want in their new will. This is particularly important in instances where you are acting for an elderly or unwell testator, perhaps even one who is about to travel.

Solicitors here are waiting on the verdict of the Court of appeal as there may be definitive requirements in more situations to make informal Wills and that ay become the norm.

PUBLICATION: ENVOY – The newsletter of The New Zealand Institute of Legal Executives
DATE: September 2014
AUTHOR: Andrew Johnstone, APEARS, Sydney, Australia

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