Tuesday, July 16, 2013

Temporary wills

Photo Credit: SalFalko cc
Today’s post looks at a recent case in which a lawyer was successfully sued for failing to write up and sign a client’s will nine days before she died (as usual, a copy of the case can be found at the following link: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=164444).
The case involved a will maker (Mrs Fischer) who met with a lawyer shortly before Easter 2010 to change a gift of property she had made under her previous will in November 2009 (2009 will).  Under the 2009 will, 25% of the estate passed to Mrs Fischer’s son.  The updated will would have distributed 50% of the estate to the son. 
With Mrs Fischer’s permission, the lawyer delayed preparing the new will until the week after Easter.  Unfortunately, Mrs Fisher passed away before her new will was provided.
The son then claimed damages from the lawyer for the difference between the 50% he would have received and the 25% he actually received.
The Court held that the lawyer was negligent in failing to at least have an informal will signed at the initial meeting.  In particular, it was held that the lawyer should have realised that although Mrs Fischer was not at a risk of imminent death, she was by reason of her age, lack of mobility and need for care susceptible to a risk of losing testamentary capacity or dying in the period of a few days between the initial meeting and the agreed date for providing the updated document.

While the lawyer was ultimately found not liable on appeal, the case remains a timely reminder of best practice in the estate planning arena.
Until next week.