SUMMERVILLE and ORS v WALSH [1998] NSWCA 222

SUMMERVILLE v WALSH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and BEAZLEY JJA 4 November 1997, 26 February 1998

[1998] NSWCA 222

Wills, Probate and Administration — testamentary instruments — wills — execution — Wills Probate and Administration Act 1898 s7 — whether duty of care owed to intended beneficiary

The question on this appeal was whether a solicitor in general practice who is called to a hospital at short notice and late at night to prepare a will for a man so badly injured that he cannot write his name, should be aware of the statutory provision allowing another person to sign the will in the presence and at the direction of the person seeking to make it, and owes a duty to an intended beneficiary to ensure that this course is adopted. Furthermore, an issue was raised as to whether, on the facts established by the evidence, even assuming the solicitor had averted to s7, the deceased's consciousness at the time would have allowed the necessary procedure to have been followed to produce a valid will.

The respondent brought these proceedings against the estate of Mr Summerville, who had since died, to recover damages suffered as a result of his

failure to ensure that the document he prepared, in his capacity as solicitor for the deceased in question, was validly executed as a will. It was argued that even though the deceased was at the relevant time unable to write his signature or otherwise execute the document as a will an alternative procedure, for which s7 of the Wills Probate and Administration Act 1898 provided, should have been followed. In particular, the respondent's allegation was that Mr Summerville could and should have obtained a direction from the deceased to sign the document in the presence of attesting witnesses.

Held:

A solicitor undertaking the task of assisting a client to make a will, when s7 was in force, owed a duty to the client and any intended beneficiary to be familiar with its requirements. The method for execution of a will by direction may rarely have been used but it was shortly stated in the section dealing with formal validity and involved a simple procedure.