SUMMERVILLE v WALSH

Court of Appeal (NSW)|1997-11-04|Before: Mason P, Sheller JA

SUMMERVILLE v WALSH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and BEAZLEY JJA 4 November 1997, 26 February 1998

Wills, Probate and Administration - testamentary instruments - wills - execution

Wills Probate and Administration Act 1898 s7 - whether duty of care owed to intended beneficiary

The respondent brought these proceedings against the estate of Mr Summerville, who had since died, to recover damages suffered as a result of his

failure to ensure that the document he prepared, in his capacity as solicitor for the deceased in question, was validly executed as a will. It was argued that even though the deceased was at the relevant time unable to write his signature or otherwise execute the document as a will an alternative procedure, for which s7 of the Wills Probate and Administration Act 1898 provided, should have been followed. In particular, the respondent's allegation was that Mr Summerville could and should have obtained a direction from the deceased to sign the document in the presence of attesting witnesses.

A solicitor undertaking the task of assisting a client to make a will, when s7 was in force, owed a duty to the client and any intended beneficiary to be familiar with its requirements. The method for execution of a will by direction may rarely have been used but it was shortly stated in the section dealing with formal validity and involved a simple procedure.

It was open on the evidence for the trial Judge to conclude that there was time available for the making of a valid will after it became apparent that the deceased could not write his signature and before he lapsed into unconsciousness.

Hill v Van Erp (1997) 188 CLR 159; Rogers v Whitaker (1992) 175 CLR 479 at 487 applied; Whittingham v Crease & Co (1978) 88 DLR (3d) 353; In the Goods of Chalcraft deceased [1948] p222 at 234 referred to.

This appeal requires the Court to determine whether a solicitor in general practice who is called to a hospital at short notice and late at night to prepare a will for a man so badly injured that he cannot write his name, should be aware of the statutory provision allowing another person to sign the will in the presence and at the direction of the person seeking to make it and owes a duty to an intended beneficiary to ensure that this course is adopted.

In the early hours of 22 March 1987 the late Ronald Bruce Lang (the deceased) suffered third degree burns to eighty percent of his body in a house fire. He was taken to Manning River District Hospital where he was admitted at about 1.43am. The medical view was that he was dying. Some time before 4am the deceased requested Sister Kathleen Burgess, who was on duty in the Acute Care Ward, to call a solicitor, Frank Hemich Summerville, to come to the hospital. According to an affidavit he made on 4 March 1989, Mr Summerville proceeded to the intensive care ward where he met the sister in charge who told him that the deceased had been shockingly burnt and was very agitated and wanting to see Mr Summerville to make a will. Mr Summerville asked "Is he conscious?" to which the sister replied:

"At the moment but I don't think he will be with us much longer. The doctor doesn't think he has any sight left and all we can do is try to ease the pain and settle him down. If you go in I want you to be prepared for a shock at what you see."

After some discussion Mr Summerville went into the ward preceded by the sister who said: "Mr Lang (or Bruce) your solicitor is here to see you." Mr Summerville saw on the bed the deceased whom he had known for about twenty years. The deceased said:

"Frank it is good of you to come, I am sorry to disturb you but I've had it and I want to make a will. I haven't got one."

Mr Summerville said: "Have you ever made a will Bruce?" to which the deceased replied: "Only when I went into the Army but that's no good now." Mr Summerville said: "Tell me what you want to do Bruce" to which the deceased replied: "I want Monica to have everything - my house, money in the bank at Gloucester, everything, and I want her and John Dodd to be my executors." Monica was the respondent, Monica Mary Walsh. There followed some interruptions when pain overtook the deceased and those attending him attempted to ease the discomfort. Mr Summerville wrote on a sheet of paper the following:

"Last Will and testament of Raymond Bruce Lang made at 4.30 AM at the MRD Hospital and made in anticipation of impending death. I want my whole Estate to go to my friend Monica Walsh for herself absolutely and I appoint her and John McHutchen Dodd to be the executors.

Signed by the testator 6y as his last will the same having been read over to him."

In the presence of Mrs Katherine Ann Saville, who was a telephonist and receptionist at the hospital, Mr Summerville said to the deceased:

"Bruce, I will read you what I have written and I want you to tell me if it is what you wish."

Mr Summerville then read the wording of the will to him and he said:

According to Mr Summerville, he appeared fully to understand what had been read. Mr Summerville said: "Bruce, do you think you can sign the will?" The theatre sister or ward nurse placed the writing pad attached to a board in front of the deceased and attempted to hand him a pen. Because of the burns and bandages on his hand or because of lapsing consciousness (Mr Summerville was not sure which) the deceased was unable to hold the pen or make any identifiable mark. Grey smudges on the paper were caused by his hand or bandages touching the paper. Mr Summerville deposed: "He then appeared to lapse into unconsciousness." Mr Summerville said to Mrs Saville and the other lady

present: "He just can't sign it" and they agreed. Mr Summerville then completed what was written on the piece of paper by apparently lining through the two lines commencing "Signed by the testator as his last will the same having been read over to him" and wrote underneath:

"The testator attempted to sign this as his will at 4.45am after the same was read to him and he said 'Yes that's a hundred per cent Frank'

Having done this Mr Summerville handed the paper to Mrs Saville to read and said to her: "When I read the above to Bruce, did you hear him say, that's a hundred per cent Frank?" She replied: "Yes." Mrs Saville then signed the document. Mr Summerville also appears to have signed it although his affidavit does not mention this. According to Mr Summerville, he remained in the ward for a couple of minutes during which the deceased "appeared to be either asleep or unconscious". However, as he was leaving one of the ward staff said: "Bruce, your solicitor is going now." The deceased appeared to stir and said: "Goodbye Frank and thanks very much." As Mr Summerville started to walk out, there was a pause in his breathing. The sister said: "Is he breathing, perhaps I had better send Monica in." then "No he is breathing. I saw his chest move." or words to that effect.

At 4.45pm on 22 March 1987 the deceased was pronounced dead.

On 20 July 1989 Needham AJ dismissed an application to have the paper admitted to probate as the last will and testament of the deceased on the basis that the deceased had not executed the document. Probate was granted of a will the deceased made in February 1960 in favour of his wife, Alva Olive Lang.

Mr Summerville having died previously, in December 1990 the respondent brought these proceedings against his executors to recover damages suffered as the result of his failure to ensure that the document was validly executed as a will. The respondent's argument was that even though the deceased was at the relevant time unable to write his signature or otherwise execute the document as a will an alternative procedure, for which s7 of the Wills Probate and Administration Act 1898 (WPA Act), then in force, provided, should have been followed. S7 was as follows:

"No will shall be valid unless it is in writing and executed in a manner hereinafter mentioned, that is to say, it shall be signed at the foot or end thereof by the testator or some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no formal attestation shall be necessary."

In particular, the respondent's allegation was that Mr Summerville could and should have obtained a direction from the deceased to sign the document in the presence of attesting witnesses.

On 8 May 1997 McInerney J, who heard the proceedings, gave judgment for the respondent in the sum of $332,794.51, including interest. A good deal of the argument before his Honour revolved around the question whether a solicitor retained to draw up a will owes a duty of care to an intended beneficiary. Any

doubts about the resolution of that question were, after the argument was completed but before his Honour delivered his judgment, resolved by the decision of the High Court in Hill v Van Erp (1997) 188 CLR 159, where Brennan CJ observed at 170:

"By accepting the testator's retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a testator on death to an intended beneficiary; it is foreseeable that, if reasonable care is not exercised in performing the task, the intended beneficiary will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with; and the intended beneficiary thereby loses the property."

Apposite to this case are earlier remarks the Chief Justice made in the same judgment at 169:

"An action for damages for negligence provides compensation to a plaintiff for loss measured by comparing the plaintiff's actual situation with the hypothetical situation in which the plaintiff would have been but for the negligence of the defendant. If the plaintiff's position is economically worse than it would have been but for the carelessness of the defendant, that is economic loss."

In addressing the question of whether Mr Summerville was in breach of the duty of care owed to the respondent as intended beneficiary, McInerney J referred to conflicting evidence about whether a solicitor in general practice should have a working knowledge of s7 of the WPA Act as it then stood and had stood for many years. On the one hand, Robert Francis Windeyer, a solicitor and a partner in the firm Windeyer Dodds in Sydney, swore in an affidavit as follows:

"6. In my opinion, any reasonably prudent solicitor who accepts or is prepared to accept instructions to prepare a Will should be aware of the provisions of s7 of the Wills Probate & Administration Act, which is fundamental to the formal validity of Wills. Further, in my opinion, any reasonably prudent solicitor preparing a Will for a person who is unable himself to sign the Will would and should ensure that the Will is signed on behalf of the testator in his presence and at his direction.

In my opinion, Mr Summerville's failure to have the Will validly executed in the circumstances was a departure from the practice and standards adhered to by reasonably prudent and competent solicitors in connection with the preparation of Wills, and would be regarded as such by all reasonably prudent and competent solicitors practising in that field."

On the other hand, Alan Joseph Palmer, a country solicitor in general practice at Forbes, was of a contrary view. Mr Windeyer was cross-examined. Mr Palmer was not because, apparently, he was unavailable to give evidence on the date set down for the hearing of the matter.

Mr Windeyer agreed that he had never experienced a case in which a testator had been unable to sign a will, nor did he know of any person who had had such an experience. Mr Windeyer was admitted in 1969 and became a partner of the firm, Windeyer Dive, now Windeyer Dodds, in July 1977. At the time he swore his affidavit he was the partner in charge of the property, probate and commercial team. During his career as a solicitor he had had a great deal to do with the preparation of wills. He did not resile from the statement that a solicitor involved in the making of wills should know there was a means by which, under the Act, a testator could make a will by directing someone else to sign it for him.

"As stated earlier, [s7] is a seminal section in the Wills Probate & Administration Act which would be bread and butter to any competent practising solicitor. The part of the Section giving a person the right to sign at the direction of the testator is such a startling provision that it should impress upon the mind of any practising solicitor. One could envisage many occasions when such a provision could be utilised. For example, if a quadriplegic wanted to execute his will and he had no movement in his arms and fingers, how then could he be expected to execute the will unless by this provision? There are other injuries no doubt where knowledge of this Section would be important.

There is no suggestion (as I understand the evidence) that the testator was unconscious when he could not sign the will or that it was not possible to seek his instructions on signing when it became apparent that he could not sign. The will was read through to him and he acknowledged that is correctly set out his requirements, saying it was '100 per cent Frank' and attempts were made to put a pen in his hand. It was at this point of time, when he was still conscious, that the problem arose. It was at this point of time that the question of the solicitor signing should have arisen."

McInerney J referred to Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] 1 Ch 384 at 402, where Oliver J warned against the courts' imposing upon solicitors - or upon professional people in other spheres - duties which went beyond the scope of what they were requested and undertook to do and the conclusion of the Privy Council in Stephens & Co v Allen (1921) 91 LJPC 32 that the question as to whether a solicitor is negligent or not in omitting to give effect to a statutory provision cannot be disentangled from the consideration of whether the statute which is involved is one which is of constant and common occurrence in practice, or whether it is one which is unfamiliar and remote. His Honour was of the view that s7 was not a remote section in respect to ordinary general practice as a solicitor and accepted Mr Windeyer's evidence that a reasonably competent solicitor should have been aware of the provision. His Honour said:

"T believe the evidence of Mr Windeyer [which] convinces me in all the circumstances of this case that Mr Summerville should have been aware of the provision; if he had been so aware he could have adopted that procedure and, in the evidence, had time to do so before the testator lapsed into conscientious [sic] and thus prepared a valid will. I believe in the circumstances there has [been] a breach of duty to the plaintiff and therefore the estate is liable to damages."

The appellants appealed from this decision on eight grounds, of which the first six related to the question whether a reasonably competent solicitor in the circumstances should have been aware of and adverted to s7 of the WPA Act. Grounds 7 and 8 related to whether, on the facts as established by the evidence, even assuming that the solicitor had adverted to s7, the deceased's consciousness at the time would have allowed the necessary procedure to have been followed to produce a valid will.

On its face, the submission of Mr Gee QC, who appeared for the appellants, that to require the competent and careful solicitor who agrees to prepare a will to know of the procedure whereby the solicitor or some other person might sign the

proposed will on behalf of the intending testator was to impose a counsel of perfection appeared attractive. Mr Windeyer, who specialised in this field of practice, had never over a period of about thirty years encountered such a situation. Mr Palmer, in his statement, did not believe that any practitioner, rural or otherwise, could carry around with him the technical details provided by the then s7 of the WPA Act for the making of a will in such extreme circumstances. He had never had a situation where a testator required some other person at his direction to sign a will, and felt certain that very few practitioners would have been confronted by that situation. If such a situation existed and the practitioner was forewarned, he would have a chance to look at the law and look at the section and determine how best to have the will executed.

"T have heard of wills being executed by pen in the mouth, I have heard of wills being executed by a pen in the hand and the hand guided by someone else. In both cases, the wills have been told [sic] to be valid. However, I have not heard of a case, until this one, where someone else was required to execute the will at the request and by the direction of the Testator."

Mr Palmer observed that Mr Summerville was, at the time of this event, sixty-eight years of age and probably studied law during or just after the war. He was likely to have been admitted nearly forty years before the event. He had no opportunity to decline the instructions. Something obviously had to be done urgently and on the spot. He was therefore afforded no opportunity to refresh his memory about wills and he had no knowledge before he went there that he was going to be requested to make a will in these circumstances. In any event, he had no real scope for research prior to the preparation and execution of the will.

Mr Gee submitted that there was no basis for the trial Judge's conclusion that s7, giving a person the right to sign at the direction of the testator, was such a startling provision that it should impress upon the mind of any practising solicitor. In Rogers v Whitaker (1992) 175 CLR 479 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 Ltd v Mayo (1965) 113 CLR 588 at 593, 601." Even so, such evidence is a useful guide. McInerney J accepted Mr Windeyer's evidence and despite Mr Gee's earnest arguments I am not persuaded that his Honour erred in doing so.

In Whittingham v Crease & Co (1978) 88 DLR (3d) 353 a solicitor allowed the wife of the principal beneficiary under a will to witness it. The British Columbia Supreme Court (Atkins J) said at 366: "......it seems to me that any lawyer who undertakes to attend a client and supervise the execution of a will can reasonably be expected to be familiar with all the comparatively simple provisions of the statute regulating the execution of wills and setting out the law in relation to gifts to witnesses and to the spouses of witnesses." S7 prescribed the formal requirements for a valid will which included the manner of execution. In my opinion, a solicitor undertaking the task of assisting a client to make a will, when s7 was in force, owed a duty to the client and any intended beneficiary to be familiar with its requirements. The method for execution of a will by direction may rarely have been used but it was shortly stated in the section dealing with formal validity and involved a simple procedure. The evidence showed that Mr Summerville was not familiar with this procedure. He agreed to assist the

deceased to make his will. He knew the deceased had not signed the document but, apparently, he thought he had fulfilled his task by writing out the statement he added to the end of the document, signing it himself and getting Mrs Saville to sign it as attesting witnesses. Unless he was so satisfied, it is hard to imagine why he would have left the ward and remarked to the respondent, as she said in evidence, "I think I have been able to give him peace of mind." This in itself may have been negligent but it was not the negligence the respondent relied on.

BUT FOR THE NEGLIGENCE - THE HYPOTHETICAL SITUATION

Had Mr Summerville adverted to the terms of s7 of the WPA Act he would have asked the deceased whether he could sign the document on the deceased's behalf and in his presence and in the presence of two or more witnesses. The deceased, if conscious, would have given this direction. But Mr Gee submitted that this procedure could not have been followed during any period when the deceased was unconscious. Not merely did the section require that the deceased give a direction to Mr Summerville to sign the will, it also required that Mr Summerville sign in the conscious presence of the deceased and that the witnesses attest and subscribe the will in the conscious presence of the deceased. In In the Goods of Chalcraft deceased [1948] p222 at 234, Willmer J, after referring to the decision of the Court of Kings Bench in Right v Price (1779) 1 Douglas 241; 99 ER 157 at 243-4 and 159, said: "But the principle clearly remains the same. If the deceased was, in fact, in a state of insensibility at the time when the document was attested, then it was not an attestation within the provisions of the Wills Act."

McInerney J said that there was no suggestion on the evidence that the deceased was unconscious at the time when he was unable to sign the will, or that it was not possible to seek his instructions on signing, when it became apparent that he could not sign. He was still conscious when the problem arose that he could not sign and it was at this point of time that the question of the solicitor's signing should have arisen. His Honour found that if Mr Summerville had been aware of the alternative procedure in s7 he could have adopted that procedure and, on the evidence, had time to do so before the deceased lapsed into unconsciousness.

His Honour did not spell out the full extent of the procedure and made no finding expressly, beyond that to which I have referred, that the deceased would have remained conscious while the procedure was followed to the point that there was a valid will.

Mr Gee relied upon Mr Summerville's evidence that the deceased "appeared to lapse into unconsciousness" after his unsuccessful attempts to hold the pen or make any identifiable mark and that while he remained in the ward for a couple of minutes the deceased appeared to be either asleep or unconscious. Mr Gee submitted that the onus was on the respondent to establish that, but for the negligence, a valid will would have been made. This required that the deceased give a direction to some other person to sign the document on his behalf and remained conscious during the period while this was done in his presence and the will attested by two or more witnesses in his presence.

Mr Summerville said no more than that the deceased appeared to lapse into unconsciousness and appeared to be either asleep or unconscious. When spoken to by the ward staff and told that Mr Summerville was going the deceased appeared to stir and said "Goodbye Frank and thanks very much." At that point he must have been conscious. The respondent herself gave evidence that she

returned to the ward, some time after 4am and after Mr Summerville had come out, and remained there until the early afternoon of that day. She observed the deceased was being given injections of what she understood to be painkillers. Whenever he became disturbed he apparently was given a painkiller. She was not aware he was unconscious. She said she did not speak to him because she did not wish to disturb him.

"T wanted him to be unconscious because he was always terrified of dying and I did not want to agitate him in any way and at that time he appeared to be calm. I am unaware whether he was unconscious or not."

She was asked "But he appeared to be [unconscious]?" and she replied: "I do know he appeared to be unconscious prior to speaking to me previously and he wasn't because he spoke to me." She said that once he lapsed into unconsciousness, as she understood it, he did not regain consciousness until he died. "But I don't know at what point he lapsed into unconsciousness." She was asked a little later:

"Q. He was breathing but not saying anything? A. That was right.

Q. Did the nurse come and attend to him from time to time while you remained with him after Mr Summerville had gone? A. Yes, they did. They used to make sure he was comfortable and turn him.

Q. But he did not regain consciousness through those attendances? A. He didn't appear to.

Q. You left the hospital at what time? A. It would have been probably about 2pm."

The transcript of the evidence given by Sister Burgess before Needham AJ on 20 July 1989, by Sister Candice Porter, who was also on duty, and by Mrs Saville was admitted by consent as were his Honour's reasons for judgment. Needham AJ remarked that the evidence made it quite plain that the deceased knew what he was doing or trying to do and that he was, despite his horrific injuries, mentally able to appreciate what he was doing and what he wanted to do. The respondent referred to some medical evidence for the most part relating to the period prior to Mr Summerville's visit. The nurses' am report of 22 March 1989 against the printed comment "Conscious level" stated "unconscious". The earlier night report referred to the solicitor's attendance but throws no light upon the deceased's state of consciousness at any point of time after that occurred. Mr Gee submitted that, in order to make good the hypothetical situation but for the alleged negligence, the respondent needed to show that the deceased remained conscious during a period or periods when the various steps to complete the process for the making of a valid will could have occurred. The respondent called no such evidence.

However, I am not persuaded that it was not open on the evidence for the trial Judge to conclude that there was time available for the making of a valid will after it became apparent that the deceased could not write his signature and before he lapsed into unconsciousness. The respondent made the point in her evidence that on occasion when the deceased appeared to be unconscious he was able to speak when spoken to and Mr Summerville gave evidence of just such an occasion. This occurred within the critical period after the attempt to write had been abandoned and before Mr Summerville left. His Honour found that if the deceased had been asked to give a direction for Mr Summerville to sign the document on his behalf he was competent and capable to give it. Mr Summerville's evidence supported the conclusion that he would have remained

so, perhaps intermittently, for a period sufficient to enable him to sign the will on the deceased's behalf in his conscious presence and for the attesting witnesses to do likewise.

During argument a point was raised about whether s7 of the WPA Act required not merely that the will be signed in the deceased's presence and by his direction but that such signature also be acknowledged by him for the will to be valid. I do not think that the section required this. Acknowledgment was required if the deceased had signed the will away from the presence of the attesting witnesses or if the person the deceased had directed to sign the will signed it away from the presence of the attesting witnesses. However this may be, the point was not significant in this case. If acknowledgment had been required, the deceased was conscious for a sufficient period to acknowledge the signature.

CONCLUSION In my opinion, the appeal should be dismissed with costs.

Counsel for the appellant: C Gee QC/D J Fagan Solicitors for the appellant: Colin Biggers & Paisley Counsel for the respondent: P J Deakin QC/I Roberts

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