Informal Wills and Solicitors’ duty of care
By Terry McCabe, McCabes Lawyers
‘Informal wills’ is a term used to describe instruments which fall short of being executed formally in the manner stipulated at law.
Australian courts now have the power to dispense with the formal requirements as to signing and witnessing and accept loosely-drawn documents that give effect to the testamentary wishes of a testator.
The recent case of Howe v Fischer  NSWCA 286 involved a claim by a disappointed beneficiary against a solicitor when an elderly testator, who was otherwise in good health, died in the period between the solicitor receiving instructions and preparation of the final will. The claimant argued that the solicitor was negligent for the delay in making the will and not having an informal will signed by the testator in the interim.
Although the ultimate judgment came in favour of the solicitor, the decision gave important directions for Australian practitioners and for those interested to avail estate planning services. The court accepted that a solicitor’s duty, which draws from his retainer, extends to intended beneficiaries and that he can be liable for a reasonably foreseeable loss suffered by them which emanates from the breach of such duty.
Solicitors taking instructions need to consider the risk of imminent death or incapacity of the testator. If it is reasonably foreseeable that the testator’s objective of giving effect to his testamentary wishes may be frustrated, the solicitor should advise him of the possibility of making an informal will.
Terry McCabeMcCabes Lawyers, Newcastle, Sydney, Australia
T: +61 2 9265 3202
Terry McCabe is the Managing Principal of McCabes. Through years of experience, Terry has developed significant expertise in commercial transactions, structuring, estate planning and business succession matters. This stems from his detailed knowledge of effective operating structures.
McCabes is a specialist Australian law firm providing innovative solutions for individuals and businesses. Having opened its doors in 1991 with only five employees, it now has over 60 lawyers practising in its Sydney and Newcastle offices. McCabes services clientele in all areas of business, and is known for providing high quality and timely advice.
Published: October 2015 l Photo: Joe Gough - Fotolia.com