Some recent developments in case law.

• Jurisdiction: Australia
• Author: McGowan, Phillip
• Date: 01 January 2013

Fischer v Howe [2013] NSWSC 462

In Fischer v Howe, (1) the plaintiff, Henry Fischer, was the son of the late Marie Fischer ('the deceased') who died on 6 April 2010. Mr Fischer claimed damages in negligence against Graham Howe, a solicitor, on the basis that he failed to make an informal will reflecting the deceased's instructions to make changes to her will made in November 2009.

The deceased had made at least 9 different wills during her lifetime. In 2007, a series of four wills were made around the same time as the deceased removed her daughter, Ms Marmont, as her attorney under a power of attorney and excluded Ms Marmont as a beneficiary of her estate.

In about March 2010, the deceased asked her general practitioner, Dr Zwi, whether she could suggest the name of a solicitor as she had 'lost confidence' in her current solicitor and accountant. Dr Zwi discussed the deceased with the defendant, who was also a patient of Dr Zwi. Dr Zwi informed the defendant that the deceased was elderly, frail but 'had all her marbles'. Based on the referral received from her GP, the deceased's career, Ms Knight, telephoned Mr Howe and he then spoke with the deceased. She informed the defendant that she needed assistance to make a new will and, as she had difficulty getting about, asked that he attend on her at her home.

On 25 March 2010, Mr Howe met with the deceased and spent about 1.5 hours obtaining instructions as to the terms of the will that the deceased wished to make to replace the 2009 will. The instructions to the defendant indicated that the deceased's estate was substantial. The deceased provided instructions that included making changes to the nominated executors as she had lost confidence in her accountant who was one of the executors, a minor charitable bequest, a gift to Ms Knight, and the division of her residuary estate between her son (as to 50%), her grandson (25%) and grand-daughter (the remaining 25%).

The deceased had asked the defendant whether he would be prepared to be appointed as her executor. He suggested that that she think about whom she wanted and that she could give her instructions to him when he provided the draft will to her.

She also instructed Mr Howe that she did not want her daughter, Ms Marmont, to be a beneficiary as she was upset that her daughter had ' abandoned her in a nursing home' after a fall and had removed jewellery and furniture from the deceased's home whilst she was admitted to hospital and convalescing in the nursing home. In response to this, Mr Howe advised the deceased of the potential for her daughter to make a Family Provision claim and discussed the matters considered by a court in these types of claims.

During the meeting, the defendant inferred that the deceased was in her nineties from the ages of her children, saw no evidence that the deceased was ill but was aware that she had some mobility issues.

Whilst he did not have a copy of the deceased's 2009 will and was unaware of the disposition of the estate under that will, he was aware of the fact that the deceased wanted the two executors named in that will removed. In fact, the instructions provided to the defendant made significant changes to the disposition of the deceased's estate from the gifts in the 2009 will. However, the defendant did not make inquiries of the deceased...