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.