We have had feedback regarding our last two posts that Frank was treated rather poorly. It must be stressed that the provisions of the current legislation give the Courts a greater degree of latitude in interpreting a document that purports to be a Will. The dispensing powers require the court to be satisfied that:
- The deceased had a testamentary intention, and
- Intended the document to be or constitute their Will
To recap: Monica Walsh brought proceedings against the estate of Frank Summerville to recover damages suffered as a result of his failure to ensure that the document he prepared, as Ronald’s solicitor, was validly executed as a will.
The Court accepted the argument that even though Ronald was unable to write his signature or otherwise execute the document as a Will legislation (in force at the time) provided an alternate procedure, that allowed another person to sign the will in the presence and at the direction of the person seeking to make it and this should have been followed. Frank could and should have obtained a direction from Ronald to sign the document in the presence of attesting witnesses.
On appeal the executors of Frank’s estate argued that in the circumstances a solicitor who was not an expert in Wills & Estate planning was called to a hospital late at night, at short notice to prepare a will for Ronald, who was so badly injured that he could not write his name; the fact he couldn’t recall or was unaware of the provision in the legislation shouldn’t be considered to be negligent; as a corollary there was no breach of his duty to an intended beneficiary.
Furthermore, even assuming the solicitor had been aware of the legislative provision, there was evidence that Ronald was drifting in and out of consciousness at the time therefore the necessary procedure to produce a valid will could not have been followed.
The appeals court found that a solicitor undertaking the task of assisting a client to make a will, owed a duty to the client and any intended beneficiary to be familiar with all requirements of the legislation in force at the time. It didn’t matter that the method for execution of a Will by direction was rarely used as it was stated in the section of the legislation dealing with formal validity and involved a simple procedure.
Similarly, the appeals court accepted the trial judge had not been mistaken in accepting the evidence that there was time available for the making of a valid will after it became apparent that Roland could not write his signature and before he lapsed into unconsciousness.
It is probable that under the current legislation that if Ronald’s executors sought probate on the Will made by Frank in March 1987 it would have been granted. However it is important to make plans for the future today because if you don’t have anything in place it will make a difficult time for your loved ones even more stressful.