SOLICITORS’ DUTIES WHEN DRAFTING WILLS

Solicitors’ Duties When Drafting Wills

Solicitors’ Duties When Drafting Wills

Scope 

1. Solicitors have many duties to others that arise from difference sources. Primarily they arise from the retainer itself but other sources include The Legal Profession Act 2007, The Profession Regulations 2008, and the Rules of Practice 1994. Some do not realise that the 1994 Rules are still in force and think them otiose because they antedate the Legal Profession Act. It is true that there are conflicts between the Act and the Rules of Practice in some areas such as for example maintenance of transit ledgers. In that event the usual rules of statutory interpretation apply and the Statute overrides the Rules. It would be admirable if the Rules were revised and repassed. 

2. When drafting Wills all of those duties continue to apply, and in particular those arising from the general relationship of solicitor and client which is a fiduciary relationship. It is one of the utmost good faith where the client is entitled to place his or her confidence, good faith, reliance and trust in the solicitor. At the same time other duties of solicitors not to the client but to the Court or other members of the profession may arise. In particular, all solicitors have a duty to act with competence, honesty and courtesy towards other solicitors, parties and witnesses. I am not going to deal with any of those, but let it not be inferred that those duties do not exist when drafting Wills. I am only going to deal with those duties that specifically relate to drafting Wills. 

Summary 

3. In summary, those duties at least include the duties to:

a) Ensure the client has the capacity to make the Will.
b) Ensure the client has real knowledge and approval of the Will. 
c) Ensure the client is not acting under undue influence;
d) Give competent, comprehensive and independent advice; 
e) Prepare a valid Will (promptly); 
f) Give legal effect to the testator’s intentions;
g) Ensure valid execution and attestation.


Capacity 

4. The touchstone (accordingly to LawCite it has had 282 citations!) for capacity is contained in the Judgment Cockburn CJ in Banks v Goodfellow (1870) LR 5 QV 549 where he said:

“it is essential… that a testator shall understand the nature of the act and its effects, shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, that if the mind had been sound, would not have been made”. 

5. In Banks v Goodfellow the testator was suffering from a delusion that he was being pursued by spirits and that a man long since dead came to molest him. Despite this, it was held (at 566) that he retained “sufficient intelligence to understand and appreciate the testamentary act in its different bearings”. 

6. It is always a question of fact whether the delusion affected capacity as the relevant time. This is illustrated by Vince v Smith (Unreported Judgment 17/1975) in which I appeared for the Plaintiff seeking specific performance of a lease with an option to purchase for a favourable sum. The Defendant landlord was described by one medical practitioner as “a paranoid senile old man”. He said that the deceased had delusions that people were persecuting him, about being affected by radio and television rays, that he could talk to his son in Launceston from Hobart, and he spoke of “conversing with the Lord and hearing voices from heaven”. Justice Chambers was unimpressed. He said at page 9 of the judgment (page 152) of the volume of unreported judgements for 1975); 

“it is a tenet of the Christian faith that man may converse with the Lord through prayer and, if the deceased heard voices from Heaven, he would appear to have been in good company – see the Revelation of St John the Divine, chapter XIV, verse 13, and many other similar references in that Book of the New Testament”.

7. Since this was excluded as a delusion(!), and it could not be shown that any delusions affected capacity at the time of execution, we got our decree of specific performance! 

8. The High Court has put it in these words: 

“He must know what he is about, have sense and knowledge of what he is doing and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty”. (Timbury v Coffee (1941) 66 CLR 277 at 280 per Rich ACJ. 

9. In Tasmania Perpetual Trustees Ltd v Rourke, [2012] TASSC 44 (4 July 2012), the testator had dementia. Justice Evans at para 24 accepted the following:

1) “A person can have dementia and paranoid ideation and still have testamentary capacity. The presence of the former does not necessarily negate testamentary capacity. 

2) There can been catastrophic and sudden deterioration in the condition of the dementia.

3) Paranoid ideation can be discrete. It tends to relate to specific and discrete areas. Thus the fact that testatrix may have shown a degree of paranoid ideation in relation to neighbors did not mean that she had any such paranoid ideation in relation to family members. 

4) Paranoid ideation is often a suspiciousness, a doubt, which is amenable to reason or to challenge, a delusional belief is a fixed illogical belief which is not challenged or questioned by the patient. 

5) A patient may have delusional beliefs, may have hallucinations, may have a psychotic disorder but still be quite capable of identifying what they own and who might have a claim on their bounty. The presence of psychotic ideation and delusional beliefs do not preclude the person having reason in other areas. 

10. In that matter the testatrix had executed a Power of Attorney in favour of her daughter, the defendant. However she had paranoid delusions regarding her daughter including that she had sold her car and stolen the proceeds of sale. She wanted to revoke the Power of Attorney and appoint another. At para 26 Justice Evans records:

 “… Mrs Atherton and Mr X attended on Krystyna Bishop and instructed her to prepare the appropriate documents. Ms Bishop did not act on Mr Atherton’s instructions to prepare the necessary documents, although prompted to do so by Mr X (who was to be the new attorney). Ms Bishop had concerns about Mrs Atherton’s capacity to give instructions”.

11. Mr Atherton went to Tasmanian Perpetual Trustees and Executors and there executed a Will. Justice Evans said (para 29) “I have no doubt that when she did so she lacked testamentary capacity as she was influenced by a paranoid delusion that the defendant had stolen the proceeds of the sale of her car”. 

12. In Romascu v Manolache [2011] NSWSC 1362 (12 December 2011) Associate Justice Hallen wrote an instructive judgment. There are 42 cases cited in it. So far as solicitors duties are concerned, he adopted some passages from an unreported case (at para 169) which included the adoption of the advice concerning the taking of instructions contained in Wills, Probate and Administration Service New South Wales (Butterworth) [at 10, 019] that read as follows:

 “if any doubts do arise as to the testator’s capacity the following procedures on the taking of instructions will assist significantly in the avoidance of potential problems for the estate as well as for the solicitor and a discharge of his duties: 

1) The Solicitor who is to draw the Will should attend on the testator personally and fully question the testator to determine capacity – the questions should be directed to ascertain whether the testator understand that he is making a Will and its effects, the extent of the property of which he is disposing and the claims to which he ought to give effect; 

2) One or more persons should be present, selected by the solicitor having regard to their calibre as witnesses if required to testify whether the issue of capacity is raised. Where possible, one of the witnesses should be a medical practitioner, preferably the doctor who has been treating the testator and is familiar with him, who should in making a thorough examination of a testator’s condition, question him in detail and advise the solicitor as to the capacity and understanding of the testator. The presence of others persons at this time would require the testator’s consent;

3) A detailed written record should be made by the solicitor, the results of the examination recorded by the medical practitioner and notes made by those present. If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the Will. It is a good general practice for the solicitor who took instructions to draw the Will and be present on execution and this practice should not be departed from in these circumstances. On execution, the attesting witnesses should, where possible, come from those persons (including the solicitor) referred to above who are present at the time of instructions and, again, as at every stage, detailed notes of the events and discussions taken. If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the Will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted”. 
      
13. In Manning v Hughes; estate of Ludewig [2010] NSWSC 26 of 47 Justice White adopted a passage from Hutley’s Australian Wills Precedents, 7th Ed, (Lexis Nexis Butterworths at 1.14: 

 “Where the solicitor is drafting a Will and there was any possibility that the testator’s capacity might later be questioned, the solicitor should ask questions the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied. It follows that the solicitor taking instructions for a Will must have the Banks v Goodfellow test at the front of his or her mind”.

14. Note that it is the time of the giving of instructions, not the date of execution of the Will that it is determinative. If it is established that the deceased had capacity at the time of instructions but lacked it at the time of execution of the Will that will not affect capacity (Romascu v Manolache at para 195. The principle cannot apply if there are material differences between the instructions and the Will. The longer the period between the instructions and execution, the less the principle may be applicable. 

15. It should be remembered that capacity may exist at a particular time but not at another time, may exist in relation to some decisions but not others, and may relate to a particular area of life but not another. Delusions may be restricted to a particular circumstance and not impinge on capacity. 

Questions 

16. Lindsay Ellison SC recommends (unpublished paper Testamentary Capacity; When Things Go Wrong) simple relevant questions such as:

a) What is a Will?
b) Who is your family?
c) Have you made a prior Will? Where is it located? What were the terms of it? 
d) Why are you changing your Will? 
e) What are some people included and some people excluded? 
f) What are your assets – identification, quantum and value? What is your income stream? Are assets held by way of joint tenancy, tenancy in common or through a corporate shareholding? 

17. Ensure that questions you ask of the testator are directed towards actually determining the question of capacity by involving some reasoning and understanding, and are not just memory testers. Asking what the scores were in the last Hawthorn match might indicate a good memory but nothing more. Be wary of asking testators (if in hospital) where they are. Quite often there is an understandable lack of knowledge if they have more important things to think about and have recently been admitted to some unknown building. 

18. Do not be completely put off by signs of dementia or cognitive impairment. There are many stages of that condition where testamentary capacity may be present. Indeed varying degrees may be affected by medication changing from time to time. The Mini Mental State Examination (“MMSE”) is a diagnostic tool that is used extensively for aged or dementing patients. It is a screening test for evaluating cognitive impairment. It is indicative but not determinative of cognitive impairment. If a client wishes to make a Will and there seems to be lucid times when capacity is present, you need to liaise with medical staff (who may not be at all interested). Sometimes there may be a CT scan of the brain which points to frontal lobe atrophy. Since that is the basis for decision making that may be of greater relevance to the question of capacity than MMSE. 

Knowledge and Approval 

19. At paragraph 201 of Romascu v Manolache it was also said:

 “201.In addition to showing that the deceased had testamentary capacity, the Defendant, as the propounder of the December Will, must also show that the deceased knew and approved its contents. This requirement is conceptually distinct, and separate, from testamentary capacity and must not be conflated with it; Hoff v Atherton [2005] WTLR 1999 108 and 117; Perrins v Holland [2009] EWHC 1945 at para 45; and Petrovski v Nasev [2011] NSWSC 1275 (17 November 2011) at 255. 

20. Your duty to be sure of capacity and knowledge and approval needs to be carried out in every case. You can be called to Court to account in effect for your conduct in the preparation and execution of a Will and if you do not meet the standards, quite apart from the possible actions for negligence, disciplinary proceedings, and real embarrassment, you can be the subject of excoriating judicial remarks 1. For example: 

Hawkins v Clayton [1988] 164 CLR 539, Hill v Van Erk (1997) 188 CLR 159, Aslan v Shehadie [1998] NSWCA 19, Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 093, Smeaton v Pattison [2003] QCA 341, Miller v Cooney [2004] NSW CA 380, Vagg v McPhee [2011] NSWSC 1584 and 2013 NSWCA 29, Home v Fischer [2013] NSWSC 462 and 2014 NSWCA 286 and Calvert v Badenach [2014] TASSC 61. 

21. Lindsay Ellison SC, who has appeared in many of the relevant cases, recommends recording the obtaining of instructions, the explanation and the execution process. He suggest either a transcription of the shorthand or dictaphone recording or an audio or visual recording by mobile phone. 

22. He has criticised trenchantly the practice of simply giving the Will to the testator and asking him or her to read it. This means nothing other than the testator “looked at it”. He says that “it is essential that the Will be read aloud and the contents explained. The testator should be invited to repeat what the Will says and what the instructions were. Favourable answers to leading questions prove little. Beware of the “Noddy Syndrome” (i.e. asking simple questions requiring only a yes or no answer to which the testator simply nods). 

Discretionary Testamentary Trusts 

23. Complicated testamentary trusts, at least in the case of lay people of average intelligence, provide a substantial risk to carrying out the duty of ensuring knowledge and approval. Discretionary testamentary trusts can offer significant benefits by way of tax minimisation and asset protection. Tax is minimised because:

a) Income can be distributed to potential beneficiaries paying the least amount of tax; and 

b) If there are children income distributed to them is not subject to the penal rates applicable to inter vivos trusts. 

24. Some protection against claims of creditors in the event of bankruptcy is afforded, and possibly against claims by spouses, although this is highly arguable after Kennon v Spry [2008] HCA 56

25. An example is form 25.01 in the eighth edition of Hutley’s Australian Wills Precedents (2014) which is claimed by the authors to be a reasonably simply version. However the following comment at page 348 is telling:

 “Unfortunately, many testators fail to include testamentary trusts in their Wills, either through a lack of awareness of the tax effectiveness of such trusts, or because the testator’s or their lawyers are put off by what is perceived to be complexity in the wording of such precedents. The present precedent seeks to overcome the problem of perceived complexity by providing a clear, usable and understandable precedent which allows a testator to set up, in one Will, separate testamentary discretionary family trusts for each of those members of the testator’s family whom the testator wishes to benefit in that way”.

26. No doubt being very aware of the duty to ensure knowledge and approval, the authors offer an explanatory document “intended to be handed to clients”. In the first place I emphasise that it is unlikely that your duty is carried out by simply handing an explanation to the client. You need to explain and invite the client to tell you what the client’s understanding is. Simply asking “do you understand” and getting a nod means little. Secondly, the explanatory document in Hutley is divided into part 1 and part 2 and, quite frankly, it is not for the faint hearted. But of course such complicated Wills have their place for the right people, and if you use one because it is appropriate, be sure to ensure that you explain it and get proof of knowledge and approval and record that in an appropriate way. 

Testamentary Undue Influence 

27. In Probate Law undue influence is not the same as the equitable doctrine of undue influence. In order to render a Will void, there must be influence which amounts to coercion. This has been the law for a long time, indeed since Williams, formerly Cook v Gaud [1828] EngR 132 (1828) 1 Hag Ecc 577/581. There Sir John Nicholl said:

“The influence to vitiate and act must amount to force and coercion destroying free agency – it must not be the influence of affection and attachment – it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion – by importunity which could not be resisted: that is was done merely for the safe of peace so that the motive was tantamount to force and fear”.

28. However, especially in the case of the elderly and infirm, it does not have to be actual violence. 

“The coercion may, of course, be of different kinds; it may be in the grossest form such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion though not actual violence”. (Winter v Crichton (1991) 23 NSWLR 126 at 122. 

29. To perform your duty to negate undue influence you should ask questions (without anyone other than an independent witness present) that elicit information about such things as:

• Is there a relationship of trust and confidence with another person who is looking to benefit?
• Is there evidence of domination of the older person? 
• Is there a substandard degree of education, literacy or financial knowledge? 
• Are they ill, alcohol or drug dependent, infirm, illiterate, unable to speak English, or mentally incapable? 
• Can the client mange his or her finances? Are they in fact left in the hands of someone else such as an attorney?
• Have there been prior Wills? If so, what is the reason for the change and is it plausible? 
• Has another person been suggesting a change in the Will in their favour?

30. Do not forget to be wary of the “Noddy Syndrome”. This expression describes a tendency to gratuitous concurrence in an older person. Sometimes older persons agree with your questions just to avoid appearing difficult, to avoid embarrassment or to placate you. You should ask them open ended questions rather than leading questions. 

31. If there is the slightest suspicion of undue influence, the other person or persons should be asked to wait outside so that you can interview your client alone. Obviously that is liable to cause resentment and disagreement and you need to be prepared to deal with that as a matter of reality. That is why in the first instance pleasantries should be exchanged and you should get to know your client before getting into the instructions proper. Then if you do wish to interview independently, you can say that the law requires that the testator receive independent legal advice which by law means it has to be given in the absence of anybody else. Quite often the others are going to be beneficiaries under the Will anyway and that is a good excuse for putting them outside. 

32. Many practitioners confuse the doctrine of testamentary undue influence with the equitable doctrine of undue influence. Most practitioners will be more familiar with the latter, within which certain relationships automatically raise a presumption that undue influence has been exercised, such as parents and young children, solicitors and clients, doctors and patients and religious advisers and followers. The most plausible explanation for the difference between equity and probate undue influence is that they were simply the historical byproducts of the dual administration of law and equity. Under that the Court of Chancery had no jurisdiction in the administration of Wills. They were solely within the jurisdiction of Ecclesiastical Courts. It has been argued that in a post Judicature Act system the difference between them is ripe for review, but at the current time the difference remains stark and it would probably take legislative intervention to change. (Nye v Sewell (1894) 15 NSWR 18; Buckley v Maddocks (1891) 12 NSW Eq 277 at 287 (Steven J); Elders and testamentary undue influence in Australia; (2005) 28 University of New South Wales Law Journal 145 (Fiona Burns). 

The Duty to Give Competent and Comprehensive Advice 

33. This may seem self evident, but it should not be forgotten that Wills and Succession Law is quite ancient and there are many traps for young players. For instance, those who would set up a trust vesting in a beneficiary over the age of eighteen need to be advised of the necessity to prevent the application of the rule in Saunders v Vautier (1841) 4 Beav 115; 41 ER 482; as recently applied in Kristic v State Trustees Limited [2012] VSC 344 and Arnott v Kiss [2014] NSWSC 1385 if they want their wishes carried into effect. 

34. An obvious example is also the need to advise the testator about the risk of excluded beneficiaries making a claim under the Testator’s Family Maintenance Act, and of course the steps which ought to be taken to minimise or obviate that risk. 

35. Linked to that, and especially acute in an aging society where there has been significant re-partnering as a result of 47% of relationships (on recent statistics) breaking down irretrievably, is the risk of failure of testamentary intention to benefit biological children when under a will the whole estate of a testator is to go to his or her second spouse. This is the situation that arises when a testator with such children has re-partnered and makes a Will giving the whole of his or her estate to the second spouse in the confident expectation that that spouse will upon death provide for the children of the dead parent. There are cases where following the death of the biological parent, there is a falling out between the stepparent and stepchild as a result of which the stepparent benefits his or her own children from a prior relationship and excludes the stepchild. 

36. As we have seen in the previous paper, the case law is clearly to the effect that the stepchild has no claim against a stepparent after cessation of the relationship (by death or divorce) that gave rise to the step-parenting relationship in the first place. Parents in that position need to be advised of the risk, and if they want to get around it what their options are. (But see Calvert v Badenach [2014] TASSC 61).

37. Of course there is a primary risk whenever property is held as joint tenants. The asset will simply pass by survivorship to the stepparent and there will be nothing for the biological parent to even try to pass on by will to his or her children. However even as tenants-in-common, if it is to pass by will to the second spouse the risk still remains of biological children being excluded. In those circumstances the client should be advised to only leave a life interest in his or her aliquot share and thereafter the remainder to his children. 

Independent Advice 

38. The reference to giving independent advice is sometimes referred to as the duty to avoid conflicts of interest. Clients are entitled to full and independent advice which is compromised if your solicitor is also solicitor to other parties who have a claim on the testator’s bounty. It is always a question of degree and you will have to make judgments as you go. Obviously if a solicitor gets involved in a client’s assets either by gift to him or her in the Will, that is not performing the duty of independent advice! The clear duty is to send the client away to get independent legal advice from another solicitor. 

The Duty to Prepare a Will 

39. When instructions are received it is your duty to prepare the Will within a reasonable time. If you do not and a person who would have been a beneficiary misses out on that benefit as a consequence, you will liable to that intended but disappointed beneficiary. (Gartside [1983] NZLR 37 – 89 year old testator and in frail health had suffered a fall and was admitted to a rest home and the solicitor was called and received instructions, but had not prepared the Will seven days later when testator died). Promptitude is also expected when instructions are taken from military or naval personnel on active service (Otter v Church [1953] 1 Ch 280).

The Duty to Give Legal Effect to the Testator’s Intentions 

40. This is self evident. If the testator comes to you and instructs you to deal with the estate in a certain way and you fail to do it, whether that is because you make a mistake of law or because you overlook an instruction, you will have failed in carrying out your retainer and be liable. 

Valid Execution and Attestation 

41. The solicitor has a duty to ensure that a Will is effective by proper execution. In Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159; the solicitor allowed the husband of a beneficiary to execute the Will, as a result of which the disposition to the beneficiary was void and the solicitor liable to her in negligence. 

Duty to Notify an Executor of a Will 

42. In Hawkins v Clayton (1988) 164 CLR 539 the High Court found solicitors who had retained custody of a Will liable in Court to the executor for loss suffered by reason of their failure to locate and inform him of the Will or its contents until six years after the testator’s death. In the intervening period the main asset of the estate, a house, was permitted to fall into disrepair and lie vacant. Brennan J said at 555: 

“Where the custodian has reason to believe that disclosure by him to the executor of the existence, contents and custody of the Will is needed in order that the Will may be made effectual, the custodian is under a duty promptly to take reasonable steps to find, and to disclose the material facts to, the executor”. 

Conclusion 

43. Most of the solicitor’s duties when drafting Wills do not require special efforts or anything other than the ordinary care and skill that is expected in any matter. However with an aging society, taking instructions from elderly people has become more and more demanding of the solicitor’s skill, and the steps required to carry out his or her duty are more onerous. Every solicitor must never forget the requirement for Banks and Goodfellow questions to be asked when there is cause to do so. This means longer interviews, more time and will actually impact on costs. However, as in all matters legal, “if a thing is worth doing, it is worth doing well”.  


Dated this 16th day of July 2015


S.P. BISHOP 

Solicitors’ Duties

APPENDIX 1

HOW TO FAIL IN YOUR DUTY OF ENSURING CAPACITY AND KNOWLEDGE AND APPROVAL

This case covers a number of duties of solicitors in Will making, and I recommend it be read in full. 

Petrovski v Nasev: The estate of Janakievska [2011] NSWSC 1275 (17 November 2011). 

Summary of Facts:

The testator made two Wills, a 1999 Will and 2004 Wills. She was 82 at the time of the 2004 Will and died at age 87. She owned cash and chattels and two houses having an estimated value of about $1,500,000.00. It was claimed that at the time of her 2004 she was senile, suffering from defective memory, had suffered a stroke, was in poor health physically and mentally, and did not speak, read or write in the English language. In October 2004 Alek Nasev, the brother of the testator’s deceased husband, Peter (therefore brother in law of the testator) contacted the solicitor saying that the testator had had the same Will as his brother before his brother died, then made a different one, but now wanted to go back to what was in the original Will. Specifically; “she wants to change her Will. It is worrying her that she has not left me anything. She told me what she wants in her new Will”. The solicitor, Ms Zlatevski was his solicitor and not the testator’s. She prepared a draft Will based on what Mr Nasev told her. It included a gift to him of a house worth about $500,000.00. He brought the testator to the solicitor’s office to sign the Will. At the meeting she sat side by side with the testator who appeared to be looking at the 2004 Will whilst she was translating its contents from Macedonian to English for her. The testator did not disagree with anything, she nodded when asked if she understood clauses. The whole contents of the file note was as follows:

 “File Note: 1.00pm 17 December 2004 
 Conference Mrs Valsika Janakievska and Alek. 
 Confirmed her telephone instructions, showed me her Medicare card. Does not receive pension. Signed Will. 
 Discussed Will want us place in safe custody. 
 Do not write to her home or give anything to anyone”.

There are curious aspects to that file note and to the whole case. However I am extracting it in relation to solicitor’s duties. In short, Mr Nasev had pressured the testator into giving him one of the two houses. It was held that the 2004 Will had been executed as a result of undue influence and probate in solemn form was given of the 1999 Will. The solicitor utterly failed to ascertain capacity (upon which there was no finding but only because the Judge decided it was not necessary since he made the finding of undue influence) or ascertain that undue influence. Relevant quotations from the judgment include the below paragraphs:

 “p.140. Ms Zlatevski did not give any evidence of any usual, or regular practice in relation to the way in which she took instructions, drafted or had the Will she had drafted executed. Nor did she give any evidence of a practice in relation to questioning an elderly person prior to her Will being executed, by for example, asking questions that would elicit general, or other, knowledge. She was not asked any questions about her knowledge, in 2004, of Banks v Goodfellow (supra) and I do not know whether she had the “Banks v Goodfellow test at the front of her mind”… she gave no evidence of having taken any special precautions when seeing the deceased on 17 December 2004. 

P.142. Ms Zlatevski did not say that what she spoke with the deceased about was designed to test the deceased’s cognitive powers, or was otherwise for the purpose of ascertaining her testamentary capacity. She did not say that the deceased’s responses led her to form the view that she ultimately expressed. One might have expected the evidence of the solicitor relying upon such pleasantries our courtesies, if relied upon to determine capacity, to be more expansive about what had been said. 

P.158. There was nothing in Ms Zlateski’s Affidavit that fleshed out any enquiries she made of Alek, or the deceased, to demonstrate how Alek had helped the deceased out, or what her husband’s Will had been. She said that the deceased said ‘he helped us initially and then later helped with the purchases. He helped with the paperwork’. No investigation of the extent, context or the time when these matters occurred appears to have taken place. 

P.173. It is most regrettable that Ms Zlatevski did not see fit to record in the file note of her interview with the deceased, more detailed facts of what had occurred. Had she done so, the Court’s task might have been a great deal easier. 

P. 180. Ms Zlatevski said that the deceased had told her that Alek had not been provided for in her prior Will. She said that the deceased’s, only concerned seemed to be that she had left Mr Nasev out of something, his entitlement. Again, at this point, she did not suggest to either the deceased, or to Alek, that even though the deceased might have wanted him with her during the discussions, he should wait outside so that she could confer with the deceased alone. 

P.181. Ms Zlatevski did not reasonably investigate the nature of any prior Wills of the deceased and/or the reasons why the deceased wished to change her Will. Speaking with Mr Attapallil might have presented a different picture and provided her with more information upon which she could obtain instructions from the deceased. 

P.182. In addition, she took no steps to ascertain whether the deceased was suffering from any medical condition that might affect her capacity. Her conversation on this topic appears to have been limited to the enquiry “how are you” as part of the “general pleasantries”. Ms Zlatevski did not enquire whether the deceased was under the care of any particular doctor, when she had last seen a doctor, or whether she was taking any medication. She acknowledged that the deceased was “elderly”. 

P.183. In discussing the contents of the Will with the deceased, Ms Zlatevski appears to have been satisfied with asking the deceased whether that was what she wanted (after reading out the clause) and with the deceased nodding, or indicating affirmatively. She gave oral evidence that the deceased, apart from nodding, only said “that’s right” in relation to the remainder clause, if anything happened to Alek or Pavle. 

P.194 the circumstances should have inspired a more prudent professional approach by the solicitor. She seems to have been completely unaware of the risks that she was running, not only in conferring with the deceased at a meeting attended by a beneficiary who, initially, had given her instructions, but also a beneficiary who had been the subject of a complaint to the Police and a beneficiary who was also her client”. 

It goes on and on… she even sent the bill to her client Mr Naslev instead of the testator. 

Solicitors Duties

APPENDIX 2
CASE SUMMARIES

Calvert v Badenach [2014] TASSC 61 (24 November 2014) 

Decision of Blow CJ 

FACTS:

1. Geoffrey Doddridge gave instructions to Robert Badenach to draw a Will leaving the whole of his estate to Roger Calvert, the son of his deceased partner. He was 77 years old, terminally ill, and had a daughter with whom he had no contact from the age of 3 when he separated from her and her mother. He had done a prior Will with the same firm in 1984 with a legacy of $10,000.00 to the daughter, but she was not mentioned in the October 1984 Will. The testator died without revoking the Will. The net estate was $612,000.00 approximately. The daughter made an application under the TFM Act and received $200,000.00 and the costs of all parties were to be paid out of the estate on a solicitor and client basis.

2. The bulk of the estate was two properties. He and Roger Calvert owned them both as tenants in common in equal shares. If they had been held as joint tenants when he predeceased Roger, Roger would have taken them by survivorship and those properties would have ceased to form part of the estate. Of course he could have given or transferred his aliquot share and indeed other assets to Roger before he died and placed them totally out of reach for the purposes of the TFM Act. The solicitor did not ask about the existence of other family, and so consequently gave no advice about arranging his affairs so as to avoid a TFM claim. 

HELD:

The claim for damages in negligence was dismissed. 


REASONS:

1) The was a duty to enquire as to the existence of family members who could make TFM claims. It was breached. 

2) It was not proved on the balance of probabilities that had the solicitor discharged that duty the testator would in fact have taken steps to preserve the estate so as to ensure that it was not diminished by the TFM claim by the daughter. 

3) Note that it was therefore specifically not decided whether there was a duty to a disappointed beneficiary as distinct from the duty to a testator. 


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