January 2013

Failure to act promptly to finalise the will - A costly mistake!

The recent Supreme Court case of Maestrale v Aspite [2012] NSWSC 1420 resulted in a lawyer being found negligent for failing to act promptly in the finalisation of a Will for a client.  The Court ordered the lawyer to pay damages of $282,631.81 plus legal costs.

Facts

The willmaker Mr Biagio Maestrale was admitted to hospital after being diagnosed with acute myeloid leukaemia.  On 8 July 2002 the plaintiff (Mr Maestrale’s son and his full-time carer) took Mr Maestrale out from hospital for the day to attend a social function at Leichhardt.

After the function that day, Mr Maestrale met with his lawyer, Mr Aspite at a local café to provide his lawyer with instructions for a new Will.  Mr Maestrale was clear and certain about his testamentary intentions.  He wanted a new Will to give the plaintiff a larger share of his estate because the plaintiff left his employment to care for him.  This increased share was at the expense of the plaintiff’s siblings.  The plaintiff was aware that his father wanted to give to him a larger share of his estate.

The background facts were in dispute.  However, Justice Fullerton accepted that the plaintiff had left urgent messages for the lawyer Mr Aspite to ring him in the days after 8 July 2002.  The plaintiff left those messages after becoming aware of his father’s deteriorating health.  The lawyer did not return the plaintiff’s calls.

On 15 July 2002 the lawyer finalised the Will and went to the hospital to have it signed.  Mr Maestrale died 10 minutes before the lawyer arrived.  The unsigned Will was not valid.  An earlier Will in which the plaintiff received a smaller share of the estate was recognised as Mr Masterale’s valid last Will.

The plaintiff started legal proceedings against the lawyer Mr Aspite to recover his loss.  It was claimed that Mr Aspite’s failure to act promptly caused the loss.

Legal Position

It is possible for a lawyer to be liable to an intended beneficiary under a Will.

Justice Fullerton referred to the High Court’s 1997 decision in Hill v Van Erp.  The judge accepted the High Court decision as authority for the proposition that defects in a lawyer’s work could, depending on the facts and circumstances of the case, be just as much a breach of duty to persons foreseeably damaged by that defective work as they are to the willmaking client.

The judge found that the lawyer Mr Aspite was negligent.  The lawyer breached his legal duty of care.  The breach of duty was not the seven days taken to prepare the Will.  The breach was the lawyer’s failure to respond to the plaintiff’s urgent calls for advice and attention in the seven days after the lawyer took instructions from Mr Maestrale.

Risk Management

The case included expert evidence from both parties.  The calculation of damages was complicated and required further expert evidence.  The case highlights that certain risk management steps could have avoided liability for the lawyer.  The steps could have included:

  • Giving Mr Masterale the opportunity to sign his instructions as an interim Will until his formal Will was prepared and signed.
  • Ensuring that complete information is obtained so that immediate action can be taken in relation to hospitalised clients or elderly clients.
  • Ensuring that your workload allows you to action matters promptly including responding to telephone calls.  Instructions should not be accepted if prompt action is not possible.
  • Keeping proper and complete file notes, including file notes of conversations with people ringing for or on behalf of a client.

Conclusion

It is good practice to clarify a will maker’s intentions in relation to Will instructions at the time of taking those instructions.  Giving a client an opportunity to sign their Will instructions as an interim Will is not a recent development as shown by the famous 1870 English case of Banks v Goodfellow (a case still referred to today because it sets out the classic legal tests for testamentary capacity to make a Will).  In Banks v Goodfellow, the lawyer saw the willmaker Mr Banks at his home and had him sign his instructions as an interim Will until the formal Will was prepared and signed about four weeks later.

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

Author: Gerard Basha