Fischer v Howe

The conference on Thursday 25 March 2010 between the deceased and the defendant 19The defendant spent about 1 ½ hours with the deceased obtaining instructions as to a new will which she wished to execute which would replace the 2009 will. When the defendant asked for a copy of the 2009 will, the deceased told him that she did not have a copy because it was with Mr Francis. 20At the time of the visit, the deceased was 94 years old. Although the defendant was not aware of her precise age, he appreciated that she was elderly, and assumed that she was in her nineties when she told him that her son was 73 and her daughter was 72. The defendant remembered the deceased as being stately and elderly and dressed smartly in street clothes. He did not observe her to have any difficulty with mobility in the time they spent together but accepted that she had some difficulties in that regard because of what the carer had told him of her reasons for wanting him to go to her home. 21In the course of the 1½-hour conference the deceased told the defendant that she wanted a new will because she had lost confidence in Mr Davis, her accountant, who was one of the executors under the 2009 will. Although she did not have any particular objection to Mr Francis, she wanted to replace him as an executor, since Mr Davis had introduced Mr Francis to her. According to the defendant's statement to police dated 7 July 2010, which was tendered by the defendant, the deceased: "seemed to harbour a good deal of animosity toward him and she was very clear in expressing that she didn't trust him." ". . she was clear she wanted nothing more to do with Davis." 22The deceased also referred to her late husband's decorations which were in the custody of Mr Francis for safekeeping and which she wanted to be displayed in suitable museum. 23In the course of the conference the deceased identified her assets as including unencumbered properties comprising the unit in which she lived at Mosman, two units at Artarmon that were rented out, shares, a bank account and a pension from the French government. The defendant appreciated that the deceased's estate was a substantial one. 24When the defendant asked the deceased whom she wanted as her new executor she said that the plaintiff was too ill to take on the role and suggested that the defendant could be appointed. He advised her to think about whom she wanted and to let him know when he presented her with a draft of the will. 25There was then a discussion between them as to suitable amounts for bequests to Medicins Sans Frontieres and Ms Knight. The defendant noted the initial instructions of $2,000 for Medicins Sans Frontieres and then a change to $3,000. He noted his instructions that a bequest of $30,000 was to be made to Ms Knight. 26The deceased then instructed the defendant that she wanted to leave the residue of her estate as follows: 50% to the plaintiff, 25% to her granddaughter, Lilly Fischer, and 25% to her grand-son Alain. 27At that point the deceased instructed the defendant that she did not want to leave anything to her daughter, Ms Marmont. She then proceeded to explain why she did not wish to make any provision for her daughter. Her reasons related to her daughter's conduct after the deceased had a fallen down the stairs in her unit a few years previously and broken her hip. She informed the defendant that her daughter had abandoned her in a nursing home and removed jewellery and furniture, which the deceased considered to be very valuable, from the deceased's unit while she was in hospital and recovering in the nursing home. 28At about this time, the defendant said words to the following effect to the deceased: "There are a number of ways a person can challenge another's will. If you do not have testamentary capacity, you cannot make a valid will. If you leave your daughter out, she may be able to make a claim under the Family Provision Act or the Succession Act which now covers that sort of claim, under which a court will decide if provision should have been made for her." 29Further discussion ensued about the effect of the Succession Act. The defendant obtained further instructions from the deceased about the respective financial circumstances of her children, which I infer to be germane to his assessment of the risk that Ms Marmont could successfully challenge the deceased's will. The defendant took detailed notes of the deceased's children's circumstances. The notes referable to Ms Marmont's financial circumstances record: H [husband] - worked in Bank (senile) W [wife- Ms Marmont]- small pension (French) Roseville- large house. 30The view expressed by the defendant at the conclusion of the discussion was: "Your daughter may have some need. It is hard to say from what you have told me. But the disentitlement factors are quite high." 31The defendant made the following contemporaneous record of advice given regarding the prospect of a claim for family provision: Discussed Succession Act/ Family Provision Act Moral Duty Needs Disentitlement factors high. 32At no time during the course of the conference did the deceased appear to the defendant to be suffering from ill-health. She did not complain about the length of the conference or ask for any rest. The defendant cannot recall whether she coughed during the conference. The deceased did not disclose her age, except inferentially by referring to the ages of her children. Nor did she disclose any problems with her health. 33The defendant was aware that Mr Francis and Mr Davis were executors under the 2009 will and that the deceased wanted them both removed. He did not, however, know that Mr Davis was a beneficiary under that will. Nor did he know of the other bequests under the 2009 will or how the residual estate was to be distributed. 34The defendant accepted that there was no practical impediment to his making an informal will at the conclusion of the conference since it would not have taken long and there was no indication that the deceased's attention or energy was flagging. He admitted that he did not give any consideration to an informal will which the deceased could have signed that day or shortly thereafter. 35At the conclusion of the conference the defendant told the deceased that he would be away on leave in Western Australia over the Easter break and would not return to work until after Easter. He proposed that he would prepare a draft will and come and see her on his return during the week after Easter. The deceased agreed with that proposal and said that she wanted the plaintiff to be present when the defendant returned. The arrangement was left on the basis that he would call her to arrange a time on his return. 36Because the defendant and the deceased were alone for the conference, apart from the initial exchange of pleasantries which were exchanged when Ms Knight was present, the defendant is the only direct source of evidence about what occurred. 37The defendant was cross-examined. I accept his evidence that, although he did not have a verbatim memory of their conversation, he had an independent recollection of their meeting. He made contemporaneous notes of the conference at the time which support his oral evidence. 38In July 2010 he was required to make a statement to police concerning his observations of the deceased at the time of the conference. There is no mention of the possible Succession Act claim by Ms Marmont in the statement to police but the contemporaneous notes amply corroborate the discussion concerning it. 39The findings set out above reflect my acceptance of defendant's evidence as to factual matters.

The 2009 will and the proposed will 40Although the defendant was not aware of the terms of the 2009 will, the provision it made is, at least potentially, an objectively relevant matter since it was a matter within the deceased's knowledge. The following table sets out the differences between the 2009 will and the will in respect of which the deceased instructed the defendant on 25 March 2010. Beneficiary Amount of bequest or % of residual estate 2009 will Proposed will Judith Knight (carer) 30% $30,000 Medecins Sans Frontieres 10% $3,000 Henry Fischer (plaintiff, deceased's son) 25% 50% Lilly Fischer (grand-daughter) 10% 25% Peter Davis (executor under 2009 will, accountant) 10% Nil Jonathon Morgan (great grandson) 5% Nil Alain Marmont (grandson) 10% 25%

41One of the effects of the proposed will was to increase the "family" share of the residual estate from 50% under the 2009 will to 100%. Another effect was to double the plaintiff's share. A third effect was to substantially reduce the size of the gifts to Ms Knight and Medicins Sans Frontieres. In addition, the deceased wanted to make provision for her late husband's decorations, including the Legion of Honour, to be given to the French Consul with a direction that it was her wish that they be displayed in a museum. 42Furthermore there was to be a change of executor. No longer would Mr Davis and Mr Francis be the executors. Aside from the change in the identity of the executors, the defendant did not know how material the changes to the will were, and made no enquiry in that regard.

The period from the time of the conference on 25 March 2010 until the deceased's death on 6 April 2010 43On about 25 March 2010, the plaintiff, who was not in Sydney at the time, spoke to his mother over the phone. The following conversation occurred: Deceased: Everything's OK. I have seen the lawyer. The dispositions are done and I want you and Ross [Hanrahan] to be there, as well as Dr Zwi. She has been very helpful. I want to schedule for him to come back when you arrive. Plaintiff: Mum, I will be back after Easter. Deceased: Dr Zwi organised the lawyer. 44At 7.19 pm on the evening of 25 March 2010 Ms Knight telephoned Dr Zwi and informed her that the deceased was unwell. There was no mention to Dr Zwi of the conference with the defendant that had taken place earlier that day. Indeed Dr Zwi was not aware, at any time prior to the deceased's death, that a conference with the defendant had taken place. 45On the afternoon of Friday 26 March 2010 Dr Zwi attended the deceased's home for a consultation in the course of which she measured the deceased's temperature as being 37.6 degrees and diagnosed pneumonia on the right side. This was an acute exacerbation of her chronic underlying lung disease. Dr Zwi prescribed oral antibiotics. The deceased did not accept Dr Zwi's advice that she go to hospital. 46At about this time, the plaintiff and the deceased had a further conversation to the following effect: Plaintiff: How are you? Deceased: I'm not too good. I have asthma. Dr Zwi is coming and told me to use oxygen when I have trouble breathing. I hope I don't have pneumonia." 47Dr Zwi returned to the deceased's home to examine her on Monday 29 March 2010. Her temperature remained at 37.3 degrees. She was not eating but she was drinking and coughing. Dr Zwi prescribed more oral antibiotics and made arrangements for a nurse to attend to administer intravenous antibiotics. Dr Zwi checked the deceased's blood tests and noted that, apart from mild anaemia, no abnormality was detected. 48On Tuesday 30 March 2010 Dr Zwi visited again. Alex, the nurse, also happened to be there. Dr Zwi, who considered that the deceased's condition had deteriorated further, again advised her to go to hospital. She also observed slight central cyanosis, due to low oxygen saturation, which manifested itself in blueness of the fingertips and lips. Dr Zwi inferred that the deceased's lung function was compromised because of the pneumonia. 49The defendant worked in his office on each of the business days between the 25 March 2010 and 30 March 2010. On Wednesday 31 March 2010, the defendant commenced his leave. 50Dr Zwi visited the deceased again on Thursday 1 April 2010. The Easter break intervened. Good Friday was on 2 April 2010. 51On the Tuesday after Easter, 6 April 2010, Ms Knight called Dr Zwi and asked her to make another home visit. The deceased told her that she did not want to die and asked whether she thought she would. Dr Zwi told the deceased that she thought she would "pull through". Following this consultation Dr Zwi was not concerned that the deceased was at risk of dying within the next few hours or within the day. 52Ms Knight telephoned Dr Zwi that afternoon to tell her that the deceased had died. Dr Zwi's evidence was that she was "absolutely shocked" because she did not expect the deceased to die that day.

Events following the deceased's death on 6 April 2010 53There was an investigation by police into the deceased's death. The defendant made a signed statement in which he deposed to the conference he had had with the deceased on 25 March 2010 consistent with my findings above. 54The executors commenced proceedings for probate in solemn form in the Probate List of the Equity Division of this Court (the Probate Proceedings). The grant of probate was opposed by Ms Marmont, who challenged the deceased's testamentary capacity. On 9 August 2010 she filed a defence in which she challenged each of the wills following the will made on 5 April 2007, being the last will in which she was named a beneficiary. In her cross-claim filed on 26 August 2010 she sought an order that the probate in solemn form be granted to the will dated 5 April 2007. Ms Marmont did not file a summons for family provision under s 57 of the Succession Act. 55Ms Marmont alleged, relevantly, in her defence in the Probate Proceedings that: ". . . on the occasions the deceased placed her signature severally on the documents bearing the dates 29 June 2007, 28 August 2007, 10 September 2007 and 19 November 2009, the deceased was not of sound disposing mind, memory and understanding in that her mind was on each of those times possessed of delusions that influenced the disposition of her property which, if her mind had been free of delusions, she would not have made." 56The alleged delusions related principally to Ms Marmont's conduct towards the deceased. Ms Marmont also alleged that the deceased became dependent on her carer and accountant and was old, suffered from macular degeneration and needed assistance to read and write and could only sign her name if she was directed where to sign. 57The Probate Proceedings were ultimately resolved by consent by modification of the terms of the will. Ms Marmont, who was not a beneficiary under the 2009 will, received 14% of the residual estate pursuant to the terms of settlement. The plaintiff's share of 25% was not altered in the settlement. Consent orders were made by the Court on 10 December 2010 to effect the settlement. As part of the resolution of the Probate Proceedings, Ms Marmont released the estate from any claim under the Succession Act for provision or additional provision out of the estate or notional estate of the deceased. 58Ms Marmont swore an affidavit which I allowed to be read, over the defendant's objection, pursuant to s 64(2) of the Evidence Act on the grounds that although she was available it was not reasonably practicable for her to attend for cross-examination since she was indisposed and unwilling to subject herself to the stress of coming to court in light of her age, 76, and ill-health. Much of her evidence was uncontroversial and can be accepted on that basis. 59However, Ms Marmont deposed that she would not have challenged a will which had been made in accordance with the instructions given to the defendant on 25 March 2010: ". . . because this would have caused financial and emotional conflict within my family. I would not have brought proceedings against my son Alain Marmont, (who would have received 25% of the estate), my brother Henry Fischer, (who would have received 50%) nor my niece Lilly Fischer, (who would have received 25%). I also verily believe I would have been provided for by my family members, particularly my son Alain had Mr Howe's instructions been formalised into a will." 60I do not accept this part of Ms Marmont's evidence. I am not satisfied that Ms Marmont was sufficiently concerned about causing financial and emotional conflict within her family to desist from challenging the proposed will, had it been enforceable. Although she may have been disinclined to bring proceedings against her son, I am not satisfied that this disinclination would have been sufficient to outweigh the intention that was manifested in her challenge to the 2009 will. Her principal motivation for challenging earlier wills may well have been to vindicate her own reputation and establish that her late mother's aversion to leaving her anything was based on delusional beliefs rather than reality.

The expert evidence 61Two expert witnesses were called. They prepared a joint report and gave concurrent evidence. The plaintiff relied on Pamela Suttor. The defendant relied on Richard Neal. Both experts were very experienced practitioners who gave evidence of the practices engaged in by solicitors in connection with the making of wills and other testamentary instruments. 62Ms Suttor's evidence was that the defendant ought to have prepared an informal will on 25 March 2010 or at the very least have obtained the deceased's signature to the file note that recorded her testamentary intention so that it could take effect as an informal will. She said that this practice was uniformly accepted by peer professional opinion as competent. The substance of her evidence appears from the following passages in the concurrent evidence: "I would go as high as saying that competent professional practice required one to consider whether it was appropriate to either sign the notes of the instructions or where the Will was simple in its dispositions to do a home made Will there and then. . . . I think the objective circumstances were quite telling. He knew that the beneficiary was 70 so that she must have been in her 90's even though he didn't know her at any stage. He knew she was frail. He knew that she lived with a carer. He knew that she had been hospitalised after a fall and she had less time available to live than she had lived in the past so she was in a vulnerable situation." 63Ms Suttor also considered the change in identity of the executors to be, of itself, a significant change. She said, in oral evidence: "[S]she had professional executors. My recall of the evidence of the conversation between the doctor and Mr Howe is that she had lost faith in those persons and an executor is somebody with whom one must have the utmost faith that they will honestly and faithfully execute the Will in accordance with its provisions and of course deal with any challenges to that Will and there is the other issue also as she indicated she may have wanted Mr Howe to be executor, the issue of commission and costs is not a relevant matter there." 64Ms Suttor also said: The overriding matter that a competent practitioner would be considering in these circumstances is the very significant changes that she wanted to make in that she expressed a loss of confidence in her prior solicitor and accountant, and she wished to make no provision for her daughter. They are probably more significant than who would ultimately act to administer the will, the beneficiary, Mr Fischer, being available to do so. 65Mr Neal considered that there was a range of conduct that he considered fell within competent professional practice which would be widely accepted by peer opinion. However, he accepted that all competent professionals would have turned their minds to the question whether an informal will ought to have been produced before the conclusion of the conference. He was under the mistaken impression that the defendant had in fact turned his mind to the question of an informal will and had adjudged the preparation of an informal will to be unnecessary. In my view, this misapprehension substantially reduced the value of Mr Neal's evidence and also diminished the weight that might otherwise be accorded to Mr Neal's view of the defendant's assessment of the deceased's wellbeing. 66Mr Neal considered that the question of what amounted to competent professional practice was to be resolved by reference to: "whether there was something of an immediate dispositive nature to be achieved". 67Mr Neal considered that there would be some circumstances where it would be imperative for a competent practitioner who was unable to produce a formal will immediately to raise the issue of an informal will with the client, including the following: (1)If the solicitor was called to the client's hospital bedside and death was imminent; or (2)If a client who had a settled dispositive intention conferred with a solicitor on his or her way to the airport to make an overseas trip. 68Mr Neal's own practice is that where a clients' dispositive intentions are clear and he obtains instructions that the client wants a particular result, he takes some action to ensure that those instructions are given legal effect at that time. He would take it upon himself to raise the issue of what the client would want to happen with the estate if the client stepped under a bus. He said that, had he been in the defendant's position, he would have asked whether there was some specific dispositive step that she wanted him to take then and there. 69Mr Neal agreed that, if an informal will had been drawn up but no provision had been made for an executor, the beneficiaries propounding that will could put forward an administrator who would be appointed with letters of administration with the will annexed, as occurred in Alan Yazbek v Ghosn Yazbek & Anor (No. 2) [2012] NSWSC 783 per Slattery J. In any event, the deceased was content to appoint the defendant as her executor. The defendant, not the deceased, was the one who had reservations about the appointment.

Whether the defendant owed a duty of care to the plaintiff 70There was a contract of retainer between the defendant and the deceased. There was a co-extensive duty to exercise reasonable care and skill in the performance of the retainer which arose both by reason of an implied term in the contract (Astley v Austrust [1999] HCA 6; 197 CLR 1 at [44]-[48] per Gleeson, CJ, McHugh, Gummow and Hayne JJ) and the co-extensive duty to take care owed in tort: Hawkins v Clayton [1988] HCA 15; 164 CLR 539. 71A solicitor retained to draw up a will and ensure that the will drawn up takes effect in accordance with its terms owes a duty of care to an intended beneficiary under the will which gives rise to a duty to exercise reasonable care and skill in the performance of those tasks: Hill v Van Erp [1997] HCA 9; 188 CLR 159 per Brennan CJ at 170-171; Dawson J at 187; Toohey J at 190 and Gaudron J at 199-200. 72The duty owed to intended beneficiaries cannot be in conflict or at odds with the duty owed by the solicitor to the client and is always subject to the client's express instructions. Were it otherwise, the solicitor could not fulfil both the duties owed to the client and the duties owed to intended beneficiaries. However, as Dawson J in Van Erp emphasised in the following passage at 187, in most cases, the interests of the client and the intended beneficiaries are not in conflict: Recognising a duty of care in a case such as the present one does not involve any conflict of duties on the part of the solicitor such as might occur in other situations, because the interests of the client are in all relevant respects the same as the interests of the intended beneficiary. The interests of the intended beneficiary exist only because of the client's intentions and in carrying out those intentions the solicitor is necessarily serving the interests of the intended beneficiary.

The content of the duty and whether it was breached

The parties' submissions 73The plaintiff submitted that the defendant owed him a duty, as an intended beneficiary, to implement the deceased's wishes. He submitted that, having regard to the deceased's age, lack of mobility, settled testamentary intention and the circumstance that the changes she wished to make to her testamentary disposition of property and the identity of her executor were substantial, the defendant was required to draw up an informal will at the conclusion of the conference and have the deceased sign it. The plaintiff submitted further that the preparation of an informal will was also required since there was a period during which he would be unavailable to prepare the formal will which would result in a delay of about a fortnight. 74The plaintiff contended that it would have taken a relatively short time for the defendant to draw up an informal will and that reasonable care required it, in light of the factors referred to above. 75He submitted that s 5B of the Civil Liability Act 2002 did not relieve the defendant of liability for breach. The risk that an intended beneficiary whose share of the estate would be enlarged by the new will would suffer loss if the deceased's intentions were not recorded in an enforceable form was foreseeable: s 5B(1)(a). 76The plaintiff submitted that the risk was not insignificant: s 5B(1)(b). He relied on Vella v Permanent Mortgages Pty Limited [2008] NSWSC 505 in which Young CJ in Eq found at [531]-[533] that although the probability of harm being suffered was low the risk was nonetheless not insignificant. The Court of Appeal reversed the decision but the correctness of his Honour's observations at first instance was not disturbed: Mitchell Morgan Nominees Pty Limited v Vella [2011] NSWCA 390. 77The plaintiff submitted that the "calculus" of factors listed in s 5B(2) which are relevant to the consideration of s 5B(1)(c) did not have the effect of negating negligence. He accepted that the probability of harm being suffered was relatively low although not insignificant. The likely seriousness of the harm was considerable since the deceased's intentions would be thwarted and the plaintiff would receive less than he would have done had an informal will be made at the conclusion of the conference. He contended that the burden of taking precautions to avoid the risk of harm was not onerous and could have been effected in a relatively short time on 25 March 2010 when the defendant was still in the presence of the deceased. The plaintiff submitted that there was no social utility in the activity that created the risk of harm, since what created the risk of harm was the defendant's failure to take an extra ten or so minutes to draft an informal will. 78The defendant's preliminary submission was that it was not open to the plaintiff to make a case that the defendant was negligent in failing to procure an informal will at the conclusion of the conference on 25 March 2010 since that case was not pleaded. He also contended that the plaintiff was, effectively, putting a case of negligent failure to advise of the availability of an informal will and that no such case had been pleaded. 79The defendant's substantive submissions were largely based on the scope of his retainer, which he contended was confined to the preparation of a formal will. The defendant submitted that the deceased accepted the time frame that he proposed for the task that he was retained to do. Accordingly, he argued that he was not in breach of his retainer. Since he was not in breach of his retainer, he contended that he could not have been in breach of his duty of care, either to the deceased or to her intended beneficiaries. 80The defendant also relied on Vagg v McPhee [2013] NSWCA 29 (Vagg) in support of the proposition that a distinction ought be drawn between the task that a solicitor was retained to carry out and some other task which, had it been carried out, would have bettered the position of persons who would otherwise have stood to enjoy the residual estate. He submitted that it did not follow from the fact that the plaintiff would have been in a better position had an informal will been made on 25 March 2010 that the defendant was under a duty to the plaintiff to procure an informal will. 81Further, the defendant submitted that the deceased wanted her son and Mr Hanrahan, to be present at a conference with the solicitor in order that the will that was executed could most reliably be defended against any attack by her daughter under the Succession Act, either on the grounds that inadequate provision had been made for her or on the grounds that she lacked testamentary capacity. In these circumstances, the defendant contended that he was under no duty to prepare an informal will. 82In addition, the defendant contended that even had he prepared such a document, the deceased would not have signed it anyway since she wanted to confer with her son and Mr Hanrahan after the formal will had been drafted. The defendant's senior counsel disparaged "informal wills" which he described variously as "back of the envelope" and "defective" wills in his submissions.

Reasons 83I reject the defendant's preliminary submission that the case as put by the plaintiff was not pleaded. The plaintiff's case was that the defendant was negligent in failing to procure an informal will at the conclusion of the conference on 25 March 2010. Although other cases were pleaded, I consider that the ultimate case put by the plaintiff was amply pleaded in [12] of the statement of claim, which alleged: "In the further alternative, given the simple and uncomplicated instructions given to the defendant by Mrs Fischer [the deceased] as pleaded in paragraph 6 hereof . . . the defendant could, and was under a duty to draw up a will in manuscript during the conference he had with Mrs Fischer [the deceased] on 25 March 2010 incorporating the testamentary provisions she had indicated to him and have such document executed by her and witnessed with two persons or, in the event he was unable to find a person to act as a second witness to the document, have Mrs Fischer [the deceased] sign the same and the defendant witness her signature so that Mrs Fischer's [the deceased's] testamentary wishes could be recorded in an 'informal will' for the purposes of s 8 of the Succession Act 2006 and with the intention that the same may be so admitted to probate." 84The principles which apply to the determination of the standard of care are well established. Evidence of acceptable practice amongst professionals is a useful guide but it is for the Courts to adjudicate on what is the appropriate standard of care: Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 487. As Sheller JA (Mason P and Beazley JA agreeing) said in Summerville: "In Rogers v Whitaker at 487, five members of the High Court said, that in Australia, it had been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. 'But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade; (See eg Florida Hotels Pty Limited v Mayo [1965] HCA 26; 113 CLR 588 at 593, 601.' Even so, such evidence is a useful guide." 85While expert evidence as to the duties of solicitors is admissible, it is not necessary either to establish negligence or refute it: Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 at 654, per Kirby P. 86I was, however, greatly assisted by Ms Suttor's evidence, which I accept. Although the experts' written reports revealed some disagreement, I do not consider that, after cross-examination there was any real dispute between Ms Suttor and Mr Neal about what reasonable care required of solicitors. To the extent that there was a difference in their opinions it was largely confined to the defence under s 5O of the Civil Liability Act which is addressed below. 87Whether a solicitor has been negligent depends on the circumstances of the case but the following examples of negligence illustrate that fulfilment of the duty generally requires thought to be given by the solicitor as to how the testator's intention to benefit intended beneficiaries is to be made legally effective: (1)Failure to ensure that a will was properly executed: Hill v Van Erp; (2)Delay in preparing the will and presenting it for execution: White v Jones [1995] 2 AC 207 (White v Jones); (3)Failing to advise a severely disabled testator, who was unable to sign his will, that the solicitor could do so on his behalf, and failing to proceed to do so: Summerville v Walsh [1998] NSWCA 222 (Summerville); (4)Failing to respond in a timely way to calls following a conference in which instructions for a will were taken when the solicitor must reasonably have known that the purpose of the calls was related to the preparation of the will: Maestrale v Aspite [2012] NSWSC 1420 (Maestrale v Aspite). 88These authorities illustrate that the duty of care owed by a solicitor to intended beneficiaries extends to the means by which a solicitor can ensure that a testator's wishes are carried out. There are two principal mechanisms whereby a solicitor can ensure that the client's testamentary intentions are legally effective when the client dies: first, the solicitor can draw up a formal will and ensure that it is duly executed; or secondly, the solicitor can draw up an informal will which will take effect by reason of s 8 of the Succession Act. These steps are not strictly alternatives since an informal will can be prepared and later superseded by a formal will. 89The scope of the retainer is the principal matter that delineates the scope of the duty of care since a solicitor generally has no duty with respect to matters going beyond the limits of his retainer: Heydon v NRMA Limited [2000] NSWCA 374; 51 NSWLR 1 at [364]. 90I consider that the defendant's retainer was to give legal effect to the deceased's testamentary intentions, and not merely, as the defendant contended, to prepare a formal will and arrange for its execution. Where the law provides, as in s 8 of the Succession Act, for an avenue for giving legal effect to testamentary intention in addition to making a formal will, its "informality" is no reason to disregard the availability of that avenue. The making of an informal will is merely another way of achieving a particular legal effect and is, in my view, relevantly analogous to the procedure considered in Summerville of a solicitor signing a will on behalf of a client as provided for by s 7 of the Wills Probate and Administration Act. 91In the circumstances of the instant case the duty the defendant owed to the plaintiff as an intended beneficiary required him to procure an informal will on 25 March 2010. 92The deceased had a settled dispositive intention in respect of the whole of the estate and also, importantly, wanted to change her executors. I accept Ms Suttor's evidence that such a change is a matter of importance and the defendant ought to have regarded it as such. I reject the defendant's submission that "merely getting rid of an executor in whom you had lost confidence is no big deal". The deceased's statement to the plaintiff not long after the conference: "the dispositions are done" is a powerful indication that she regarded the dispositions about which she had instructed the defendant as being settled and not the subject of further consideration in the foreseeable future. Her statement to that effect also highlights the purpose of the conference at which Dr Zwi, Mr Hanrahan and the defendant were to be present: namely to ensure that the best assessment of her testamentary capacity was available to defend her will against a potential challenge by her daughter. 93In the instant case the defendant did not even give consideration to the making of an informal will. At the time of the conference on 25 March 2010 the solicitor knew each of the following: (1)the deceased was at least in her nineties since her two children were in their seventies; (2)she had difficulties with her mobility and required a carer; (3)some years previously she had fallen down some stairs in her unit and broken her hip which required her hospitalisation and residence in a nursing home before her return to her unit; (4)she was at greater risk of falling and sustaining serious injury or having a stroke or other cerebral event or other incident that would compromise her testamentary capacity than had she been younger; (5)she was adamant that she wanted to change the identity of her executor because she had lost faith in him; (6)she wanted to change the dispositions; (7)any prevarication expressed as to the quantum of the bequests to her carer and Medicins Sans Frontieres was resolved in the course of the conference; and (8)the reason for the delay in preparation of the formal will for execution was because of the defendant's own commitments. 94Although the defendant did not know how substantial the change in the dispositions was, he made no enquiry as to this matter. It was therefore not reasonable for him, in the absence of enquiry, to assume that they were other than substantial and of importance to his client. 95The deceased's preference for the conference, at which the formal will would be available, to be timed so that the plaintiff, Dr Zwi and Mr Hanrahan could be present indicates to me that she was concerned to fortify her new will against attack from her daughter, either on the grounds of testamentary capacity or on the basis that no provision had been made for her. It did not, in my view, signify any uncertainty as to her testamentary intentions or as to her desire that they be legally effective. 96The defendant admitted that there was no practical impediment to his drawing up an informal will on 25 March 2010. He said: "If I had any reason to believe that Mrs Fischer was in such poor health when I spoke with her that she was at risk of imminent death, I could and would have prepared a manuscript will for her there and then and had her execute that will, if she was willing to do so." 97I consider that 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. Although the deceased may not have been at risk of imminent death as Dr Zwi understood the term, being at risk of dying within hours or within a day, she was, by reason of her age, lack of mobility, need for care and infirmity, susceptible to a not insignificant risk of losing her testamentary capacity in the period of about a fortnight between the initial conference and the proposed conference. There was no reason for her, or her intended beneficiaries, to be subjected to that risk in light of her settled testamentary intentions, both as to dispositions and as to her desire to change her executors, and the circumstance that it was the solicitor who was responsible for the delay. 98I reject the defendant's submission that Vagg's Case is "on all fours" with the instant case. I do not consider Vagg's Case assists the defendant. The facts in Vagg differed in three significant respects from the cases of White v Jones, Hill v Van Erp, Maestrale v Aspite and the instant case. These distinguishing aspects were identified in Vagg by Basten JA, Ward JA agreeing at [11]: first, there was no specific bequest that failed because of want of due care by the solicitors; secondly, the testatrix understood that the property referred to, her interest in the joint tenancy, would not form part of her estate; and thirdly, the estate had a claim for more than nominal damages and therefore there was no justification for finding a duty in favour of the beneficiaries.

The parties' submissions 99The issues of breach and causation were addressed in tandem. The plaintiff submitted that, had the deceased been advised of the option of making an informal will on 25 March 2010 as a stop-gap until the formal will could be executed at the later conference in April 2010, she would have taken the option because there would have been no reason not to. 100The defendant submitted that the deceased, even had she been aware of the option, would not have taken it because she wanted her son and Mr Hanrahan and Dr Zwi to be present when her new will was executed. 101The defendant also submitted that the fact that the deceased did not raise the issue of her will with Dr Zwi at any of the house visits between the conference on 25 March 2010 and her death on 6 April 2010 showed that she was unconcerned with the delay and that, had she been given the option of signing an informal will, she would have declined the option and waited for a more formal ceremony.

Reasons 102The only thing that would have relieved the defendant of the obligation to procure an informal will would have been the deceased's express instructions that she did not wish to take that course. No such instructions were forthcoming nor could they have been because the defendant did not raise the option with her. I do not accept that the preparation of an informal will was in any way inconsistent with the later execution of the formal will at the conference in April. To the contrary, the purpose of the making of an informal will was to safeguard the implementation of her testamentary intentions against the possibility that the deceased would lose her testamentary capacity either through death or stroke or other event to which her advancing age and frailty made her increasingly susceptible. 103I reject the defendant's submission that the deceased would not have availed herself of the option of making an informal will on 25 March 2010 had she been made aware of its availability and had one been drafted for her. It is at odds with the objective probabilities. It disregards the vehemence of the deceased's antipathy towards Mr Davis and, by association, Mr Francis. It also disregards the importance to her of the substantial changes that she proposed to make to her will, the nature and magnitude of which were within her knowledge but to which the defendant was not privy and in respect of which the defendant had made no enquiry. 104Furthermore I do not consider that the evidence enables me to make an assessment of the extent to which the deceased was able to address matters other than her immediate illness in the course of the period from the evening of 25 March 2010 and the time of her death. The evidence does, however, tend to suggest that she needed assistance from her carer to make a phone call, at least in part because of her poor eyesight

The defence under s 5O of the Civil Liability Act that the defendant acted in accordance with competent professional practice 105Section 5O creates a defence where, subject to rationality, there is a practice accepted by peers as competent practice to which the defendant adhered: Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151. To establish the defence, the defendant would have to establish that: (1)He acted in a manner that accorded with an identified practice; (2)The practice was widely, but not necessarily universally accepted by peer professional opinion; (3)The practice was widely accepted as competent; and (4)The practice was not irrational. 106The experts agreed that every competent solicitor would have considered, in the circumstances of the instant case, whether to make an informal will at the conclusion of the conference. Accordingly, the first difficulty that confronts the defendant is that he did not act in a manner that accorded with the practice that was universally required of competent legal practitioners, although, unlike the solicitor in Summerville, who was unaware of the relevant provision, s 7 of the Wills Probate and Administration Act 1898, the defendant knew of s 8 of the Succession Act and had recently attended a seminar in which the topic of informal wills was addressed. 107Given that he failed to address this significant preliminary question, the defendant cannot, in my view, get the benefit of being taken to have made an appropriate assessment of the urgency of the situation, since he, not having addressed the question himself, necessarily failed to raise it with the client. 108Accordingly, the defendant has not made out the defence under s 5O because he has not established that he complied with competent professional practice. 109In any event, I do not accept that there is a rational distinction between a dying client who is in a hospital bed and someone about to make an overseas trip on the other hand, and the deceased's situation on the other. Her age and infirmity put her closer to the precipice between testamentary capacity and the lack thereof than most. Her dispositive intention with respect to the residue of her estate can be taken to have been settled before the conference and, to the extent that it required some resolution in respect of specific bequests to a charity and to her carer, this was done in the course of the conference. Although the deceased was not definite about who her executor would be, she was adamant about who she did not want her executors to be: namely those named in what was then her last will. 110If there was a universal practice amongst competent practitioners of drawing up an informal will in the two instanced cases, I have difficulty seeing why the practice would not also extend to someone in the deceased's circumstances. I regard any distinction that would require competent practitioners to procure an informal will in the two cases of the dying client and the client going overseas, but not in the deceased's circumstances, as irrational.

Damages 111The defendant submitted that even if I found him liable, I should discount the damages since the plaintiff has, at best, lost the chance of obtaining a will in which his share of the residue of the estate was 50% rather than 25%. The matters relied on by the defendant as diminishing the value of the chance were: (1)the prospect that the deceased would not have been prepared to sign an informal will; (2) the prospect that a court would not have been satisfied that the informal will met the requirements of s8 of the Succession Act 2006; (3)the prospect that the informal will would have been challenged on the grounds that the deceased lacked testamentary capacity; and (4)the prospect that the informal will would have been challenged on the ground that it failed to make adequate provision for her daughter, Ms Marmont. 112For the reasons already given, I do not consider there to have been any real prospect that the deceased would not have been prepared to sign an informal will that reflected her settled dispositive intentions as expressed to the defendant on 25 March 2010. The informal will was merely a stop-gap measure and would, in no way, have impeded the proposed conference that was envisaged to occur after Easter. Had it been prepared by the defendant and signed by the deceased, I am satisfied that it would have been found to be the deceased's will under s 8 of the Succession Act. 113For the reasons already given I do not accept Ms Marmont's evidence that she would not have challenged an informal will to the effect of the proposed will. However, I do not consider there to be any reason to suppose that any such challenge would have been more detrimental to the plaintiff's entitlement than the challenge that she in fact made in the Probate Proceedings. The settlement that was ultimately reached diminished the proportional distributions to others but not to the plaintiff, although it necessarily diminished the value of the residual estate and, accordingly, the value of the plaintiff's share. 114For these reasons I do not consider that any discount is appropriate to diminish the value of what the plaintiff has lost by the defendant's negligence. He is entitled to the net loss of the further 25% share of the estate. Had the figures in the plaintiff's final schedule been agreed, the plaintiff would have been entitled to judgment in the sum of $824,447.82 plus interest from 17 December 2010, being the date of resolution of the Probate Proceedings at which distributions were made from the estate of the deceased, until the date of this judgment. 115However, the parties were unable to agree on the accuracy of the figures proposed by the plaintiff in his schedule of damages. It was agreed at the conclusion of the hearing that, rather than my calculating damages from the source documents, it would be preferable for me to deliver my reasons for judgment and have the parties prepare short minutes of order that reflect these reasons. 116It is appropriate that I reserve the question of costs since I have not heard argument on whether there is any reason why costs on the ordinary basis ought not follow the event.

Orders 117The orders and directions I make are: (1)Judgment for the first plaintiff. (2)Direct the parties to calculate the quantum of damages having regard to these reasons. (3)Costs reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2013