Legal Bedside Manner pt 2

Our last post concerned the dismissal of an application for probate on the Will of Ronald Lang prepared by his solicitor, Frank Summerville, in March 1987  on the basis that it was not validly executed. Probate was granted on Ronald’s previous Will of February 1960 in favour of his wife, Alva. As a result, Monica Walsh, the beneficiary of the later Will received nothing.

Frank had died prior to Monica Walsh bringing proceedings against him; in December 1990 she sued his estate to recover damages suffered as the result of his failure to ensure that the document was validly executed as a Will. The legislation in force at that time enabled either the Will maker “or some other person in his presence” to execute the Will in the presence of two witnesses.

Monica argued that Frank could and should have obtained a direction from Roland to sign the document on his behalf in the presence of the two witnesses.

In this matter the argument revolved around  whether a solicitor retained to draw up a Will owes a duty of care to an intended beneficiary. If reasonable care is not exercised in performing the task, the intended beneficiary loses the property.

Compensation to the intended beneficiary is measured by comparing  their actual situation with the hypothetical situation they would have been in but for the negligence of the defendant. Therefore if the intended beneficiary is financially worse due to the carelessness of the Will maker’s solicitor, they have suffered economic loss.

The Court accepted evidence that although the situation where an individual was unable to sign their name was rare any reasonably prudent solicitor who accepts or is prepared to accept instructions to prepare a Will should be aware of the provisions with regard to the formal validity of Wills.

In the Court’s opinion, Frank’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. Importantly as the legislation in force at the time provided that a person had the right to sign at the direction of the Will maker it should have been impressed upon the mind of any practising solicitor.

The problem arose after the Will was read to Ronald and he acknowledged that it was ‘100 per cent Frank’ and attempts were made to put a pen in his hand; Ronald was still conscious, and Frank should have been aware of the provision and adopted that procedure before  Ronald lost consciousness and thus prepared a valid will. The Court found that in the circumstances there was a breach of duty to Monica and awarded her the sum of $332,794.51, including interest from Franks estate.

The executors of Frank’s estate appealed this decision, and that is the subject of our next post.

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