01/07/2013

The recent NSW case of Fischer v Howe looks at what happens if the client gets hit by a bus after they’ve given instructions but before they can sign their Will.

A NSW solicitor has been successfully sued in the NSW Supreme Court for failing to advise the client to create an informal Will to confirm her testamentary instructions.  An informal Will could have assured those testamentary instructions were acted on if anything happened to her before she could sign the properly prepared Will.

The 94 year old client gave her testamentary instructions to her solicitor and agreed to wait two weeks for him to prepare the Will. 12 days later, and before she could sign the new Will, she died. As a result her old Will from 2009 was admitted to probate and one of the beneficiaries of the new Will sued the solicitor for the amount that they missed out on because the testamentary instructions weren’t admitted to probate.

The Court ruled that the solicitor should have prepared an informal Will at the time of the meeting, or at least have obtained his client’s signature on a note recording her intentions.  An informal Will would have been a document setting out her testamentary intentions that was signed by the client even though it was not signed by the mandatory two other witnesses.

The Court found that in the absence of a formal Will and in all the other circumstances an informal Will would have been admitted to probate and would have had the same effect as a formal Will.

The Court also held that the only thing that would have relieved the solicitor of the obligation to advise on and prepare an informal Will would have been the deceased’s express instructions that she did not wish to take that course.

The case means that having clients sign file notes of their instructions, or an informal Will hastily prepared, could become an essential practice for all advisers involved in estate planning.

Estate planners who are not lawyers but who are advising on the client’s estate planning should move quickly once they receive their client’s instructions regarding their estate planning.  They should either have the client sign the instructions to indicate the validity of the testamentary intentions set out in those instructions or should have the client sign a statement that they understand the importance of an informal Will but nonetheless do not want their testamentary intentions to have the effect of a proper Will until that formal Will is drawn up and signed.

Townsends Lawyers Estate Planning Fact Finder contains advice and execution elections relating to these issues for ease of use by estate planning advisers and their clients. 

For more information, please call Sandra Mencinskyj at Townsends Business & Corporate Lawyers on (02) 8296 6222.