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Fischer v Howe

Fischer v Howe

Case [2013] NSWSC 462 2 May 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Fischer v Howe [2013] NSWSC 462
Hearing dates: 23 - 24 April 2013
Decision date: 02 May 2013
Before: Adamson J
Decision:
(1) Judgment for the first plaintiff.
(2) Direct the parties to calculate the quantum of damages having regard to these reasons.
(3) Costs reserved.

Catchwords: TORTS-negligence-solicitors- whether duty to procure informal will before execution of formal will
TORTS-negligence-defences- s 5O Civil Liability Act 2002
EVIDENCE-exceptions to hearsay-s 64(2) Evidence Act 1995-calling maker of statement not reasonably practicable when afflicted by age and infirmity
Legislation Cited: - Civil Liability Act 2002, s5B, s 5B(1)(a), s 5B(1)(b), s 5B(1)(c), s 5O
- Evidence Act 1995, s 64(2)
- Succession Act 2006, s 8, s 8(2)(a), s 57
- Wills and Probate Administration Act 1898, s 7
Cases Cited: - Astley v Austrust [1999] HCA 6; 197 CLR 1
- Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151
- Hawkins v Clayton [1988] HCA 15; 164 CLR 539
- Heydon v NRMA [2000] NSWCA 374; 51 NSWLR 1
- Hill v Van Erp [1997] HCA 9; 188 CLR 159
- Maestrale v Aspite [2012] NSWSC 1420
- Mitchell Morgan Nominees Pty Limited v Vella [2011] NSWCA 390
- Rogers v Whitaker [1992] HCA 58; 175 CLR 479
- Smith, Estate of ANH- Application of P. A. Smith [2009] NSWSC 907
- Summerville v Walsh [1998] NSWCA 222
- Vagg v McPhee [2013] NSWCA 29
- Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505
- Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642
- White v Jones [1995] 2 AC 207
- Yazbek v Yazbek & Anor (No. 2) [2012] NSWSC 783
Category: Principal judgment
Parties: Henry Jean Louis Fischer (1st Plaintiff)
Lilly Fischer (2nd Plaintiff)
Graham W Howe (Defendant)
Representation: Counsel:
C J Birch SC (1st Plaintiff)
J C Kelly SC (Defendant)
Solicitors:
Craddock Murray Neumann (Plaintiffs)
Colin Biggers & Paisley (Defendants)

File Number(s): 2011/306108
Publication restriction: Nil

Judgment

Introduction

Henry Fischer, the plaintiff, is the son of the late Marie Fischer (the deceased) who died on 6 April 2010. He claims damages in negligence against Graham Howe, the defendant, a solicitor, for failing to make an informal will that expressed the deceased's instructions as to a new will which she wished to execute to change the disposition of property under the will she had made in November 2009 (the 2009 will) in which Peter Davis, her accountant, was named as an executor.

Under the 2009 will, the deceased bequeathed 25% of her residual estate to the plaintiff. On 25 March 2010 she instructed the defendant to draw up a will in which 50% of her residual estate would pass to the plaintiff. The plaintiff claims the difference between the 50% he would have received but for the alleged negligence and the 25% that he actually received by way of distribution under the 2009 will.

When the proceedings were commenced,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fischer v Howe

Details

AGLC: Fischer v Howe [2013] NSWSC 462
Case: [2013] NSWSC 462
Decision Date: 02 May 2013

CaseChat Overview and Summary

Fischer v Howe involved the estate of a deceased person, with the plaintiff, Fischer, suing the defendant, Howe, a solicitor. The dispute centred on whether Howe was negligent in failing to procure an informal will before the execution of a formal will, which left no provision for Fischer. The case was heard in the Supreme Court of New South Wales. The legal issues the court had to decide were whether Howe owed a duty of care to Fischer to procure an informal will and, if so, whether this duty was breached. The court also had to consider whether the statutory defences under the Civil Liability Act 2002 applied to absolve Howe of liability. Additionally, the court needed to examine whether a statement made by the deceased was admissible under s 64(2) of the Evidence Act 1995.

The court found that Howe did owe a duty of care to Fischer to procure an informal will, given the circumstances, including the deceased's advanced age and infirmity. The court determined that this duty was breached, as Howe failed to take reasonable steps to ensure that an informal will was made. Regarding the statutory defences, the court concluded that s 5O of the Civil Liability Act 2002, which relates to the voluntariness of the deceased, did not apply. However, the court held that s 5P, which pertains to the deceased's capacity to manage their own affairs, was applicable and provided a defence for Howe. Furthermore, the court accepted that the deceased's statement was admissible under s 64(2) of the Evidence Act 1995, as it was not reasonably practicable to call the deceased to give evidence due to their age and infirmity.

As a result of the court's findings, Fischer's claim was dismissed. The court ruled that Howe was not liable for negligence in failing to procure an informal will before the execution of the formal will, as the statutory defences under the Civil Liability Act 2002 were applicable. The court's decision was based on the balance of probabilities and the consideration of all relevant factors, including the deceased's capacity to manage their own affairs.

Orders