Howe v Fischer

In *Howe v Fischer*, the plaintiff, a disappointed beneficiary, brought proceedings against the defendant solicitor alleging professional negligence. The testatrix, the plaintiff's mother, had retained the solicitor to prepare her will. However, the testatrix died before the will was finalised and executed. The central dispute concerned whether the solicitor owed a duty of care to the disappointed beneficiary and, if so, whether that duty had been breached.

The legal issues before the Court of Appeal were whether the terms of the retainer between the solicitor and the testatrix imposed a duty on the solicitor to take immediate steps to have an informal will signed, or whether the solicitor should have been aware of the risk that the testatrix might die or lose testamentary capacity within the agreed timeframe for finalising the will. The court was required to determine the scope of the solicitor's duty of care in the context of preparing a will, particularly when the client was elderly.

The Court of Appeal found that the terms of the retainer did not require immediate steps for the signing of an informal will. The agreement was for the solicitor to present a draft will at an agreed future time, approximately two weeks after the initial consultation, which suited both parties. The court reasoned that the solicitor was entitled to rely on the agreed timeframe and was not obliged to anticipate the testatrix's death within that period, especially as there was no indication that she was in imminent danger or had lost testamentary capacity. The court applied principles relating to the scope of a solicitor's duty of care, which is primarily defined by the terms of the retainer and the reasonable expectations arising from it.

The appeal was allowed, and the orders of the Common Law Division were set aside. The court entered a verdict and judgment for the defendant solicitor, ordering that the plaintiff pay the defendant's costs of the proceedings at first instance. The respondent was ordered to pay the appellant's costs in the Court of Appeal and was granted a certificate under the Suitors Fund Act 1951 (NSW) if qualified.