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.
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.
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,  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  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  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.
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  WTLR 1999 108 and 117; Perrins v Holland  EWHC 1945 at para 45; and Petrovski v Nasev  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  164 CLR 539, Hill v Van Erk (1997) 188 CLR 159, Aslan v Shehadie  NSWCA 19, Queensland Art Gallery Board of Trustees v Henderson Trout  QCA 093, Smeaton v Pattison  QCA 341, Miller v Cooney  NSW CA 380, Vagg v McPhee  NSWSC 1584 and 2013 NSWCA 29, Home v Fischer  NSWSC 462 and 2014 NSWCA 286 and Calvert v Badenach  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  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  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  VSC 344
and Arnott v Kiss  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  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.
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  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  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  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”.
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