Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Howe v Fischer [2014] NSWCA 286 Hearing dates: 23 May 2014 Decision date: 26 August 2014 Before: Beazley P at [1]; Macfarlan JA at [2]; Barrett JA at [3] Decision: 1. Appeal allowed. 2. Set aside the orders made in the Common Law Division on 19 August 2013. 3. In lieu thereof, make the following orders: (a) Order verdict and judgment for the defendant. (b) Order that the plaintiff pay the defendant's costs of the proceedings. 4. The respondent pay the appellant's costs in this Court 5. The respondent have a certificate under the Suitors Fund Act 1951 (NSW) if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - professional negligence - solicitors - solicitor retained to prepare will - testatrix died before will prepared - duty of care owed by solicitor to disappointed beneficiary - scope of such duty dependent on terms of solicitor-client retainer - where solicitor and client agreed that solicitor would present draft of will at an agreed future time about two weeks after initial consultation - where the agreed time suited the convenience of both the solicitor and the client - client 94 years old - whether the terms of the retainer were such as to require immediate steps to sign informal will - whether solicitor was or should have been aware that the client might die or lose testamentary capacity within the agreed period of about two weeks PROFESSIONS AND TRADES - lawyers - solicitors - duties to client when instructed to prepare will. Legislation Cited: Civil Liability Act 2002 (NSW) Succession Act 2006 (NSW) Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311 CGU Insurance v Porthouse [2008] HCA 30; 235 CLR 103 Dickson v Creevey [2002] QCA 195 Fischer v Howe [2013] NSWSC 462; 85 NSWLR 67 Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Hill v Van Erp [1997] HCA 9; 188 CLR 159 Keesing v Adams [2010] NSWSC 336 Lucantonio v Kleinert [2009] NSWSC 853 Maestrale v Aspite [2012] NSWSC 1420 Maestrale v Aspite [2014] NSWCA 182 Neagle v Power [1967] SASR 373 Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735 Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Summerville v Walsh [1998] NSWCA 222 Takla v Nasr [2013] NSWCA 435 Vagg v McPhee [2013] NSWCA 29 White v Jones [1995] UKHL 5; [1995] 2 AC 207 Zakka v Elias [2013] NSWCA 119 Category: Principal judgment Parties: Graham W Howe (Appellant) Henry Jean Louis Fischer (Respondent) Representation: Counsel: K A Stern SC/D Hume (Appellant) C J Birch SC/K Tang (Respondent) Solicitors: Colin Biggers & Paisley (Appellant) Craddock Murray Neumann (Respondent) File Number(s): CA 2013/148769 Decision under appeal Citation: [2013] NSWSC Date of Decision: 2013-05-02 00:00:00 Before: Adamson J File Number(s): 2011/306108 HEADNOTE [This headnote is not to be read as part of the judgment] Mrs Marie Fischer retained the appellant, a solicitor, to prepare a new will. On 25 March 2010, the appellant attended Mrs Fischer's home where she gave him information about her testamentary intentions. He said that he would prepare a draft will and would come and see her again in the week after Easter (that is, 6 -9 April 2010). She agreed to this. She wished others to be present on that occasion, including her son who would not be back in Sydney until after Easter. Mrs Fischer died on 6 April 2010. No new will had been made. Probate in solemn form of a will executed some four months earlier was in due course granted. In proceedings in the Common Law Division brought by Mrs Fischer's son seeking damages for breach of duty of care owed to him as a disappointed beneficiary under the proposed new will, it was held that the appellant was negligent in failing to procure the signing of an informal will by Mrs Fischer when he visited her on 25 March 2010. Damages of $800,000 and $145,715 in interest were awarded to the respondent, then plaintiff. On appeal, the appellant challenged several findings of fact made by the primary judge, as well as the scope and content of the duty of care (which was determined by the content of the solicitor-client retainer). The Court held (per Barrett JA with whom Beazley P and Macfarlan JA agreed): 1. That the primary judge erred in finding that: (a) Mrs Fischer had a settled testamentary intention when the appellant visited her on 25 March 2010: [47]-[54]; (b) there was a "not insignificant risk" that Mrs Fischer might lose her testamentary capacity before the scheduled return visit and the appellant knew or ought to have known about this risk: [55]-[61]; and, (c) the appellant was responsible for the delay in the preparation of a formal will: [64]-[66]. 2. That the appellant's retainer was to prepare a formal will and arrange for its execution according to the agreed timeframe. The appellant was under an implied obligation to avoid any reasonably foreseeable frustration of this objective, however, this did not require that the appellant procure the signing of an informal will in the circumstances: [67]-[70]. 3. That the appellant's duty was to bring to bear the reasonable care and skill of the ordinary practitioner exercising and professing to have the special skill relevant to the field of professional practice: [71]. Rogers v Whitaker [1992] HCA 58; 175 CLR 479, Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 cited. 4. That a solicitor's duty to a disappointed beneficiary under a will is circumscribed by the terms of the retainer with and the instructions of his or her client, to whom the primary duty is owed, such that any breach of the retainer by failing to take reasonable care to perform and fulfil it would also be a breach of the solicitor's duty to an intended beneficiary: [71]-[72].Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93, Hill v Van Erp [1997] HCA 9; 188 CLR 159 applied. 5. (obiter): That in a professional negligence case of this kind, in which the requirements of solicitor's retainer and duty of care are not difficult to ascertain, expert evidence is not needed because the court itself is sufficiently equipped to form an opinion as to what is accepted professional practice or conduct in the circumstances: [78]-[81]. Lucantonio v Kleinert [2009] NSWSC 853 at [8], Keesing v Adams [2010] NSWSC 336 at [35] applied. Attard v James Legal Pty Ltd [2010] NSWCA 311 at [131], Zakka v Elias [2013] NSWCA 119 at [105], Takla v Nasr [2013] NSWCA 435 at [38], Neagle v Power [1967] SASR 373 at 376, Dickson v Creevey [2002] QCA 195 at [15] cited. Judgment 1BEAZLEY P: I have had the advantage of reading the reasons of Barrett JA in draft. I agree with his Honour's reasons and with the orders he proposes. 2MACFARLAN JA: I agree with Barrett JA. 3BARRETT JA: Mrs Marie Fischer died on 6 April 2010 aged 94 years. She was a widow. Two children survived her, a daughter (Danielle Marmont) and a son (Henry Fischer). 4The appellant is a solicitor in sole practice in Sydney. On Thursday 25 March 2010 he attended by appointment at Mrs Fischer's home to take instructions for a new will. She gave him information about her testamentary wishes. He said that he would prepare a draft will and come to see her again in the week after Easter (Easter Day in 2010 fell on 4 April). Mrs Fischer died on Tuesday 6 April 2010. No new will had been made. Probate in solemn form of a will executed some four months earlier (on 19 November 2009) was in due course granted. 5An action in negligence was brought in the Common Law Division of the Supreme Court against the appellant by Mrs Fischer's son (the present respondent) and by Lilly Fischer, a granddaughter. They alleged that, as persons identified as intended beneficiaries under the proposed new will, they were owed a duty of care co-extensive with the duty imposed on the appellant by his retainer as solicitor, that that duty had been breached and that loss and damage had thereby been suffered by each of them. Each claimed as damages the difference between what he or she would have received as a beneficiary under a will in the terms of the proposed new will and what was received as a beneficiary under the 2009 will admitted to probate. The sums involved, as set out in the statement of claim, were $814,000 in the case of the respondent and $488,400 in the case of Lilly Fischer. 6The claim by Lilly Fischer was settled. The claim by the respondent proceeded to trial before Adamson J. Her Honour delivered judgment on 2 May 2013: Fischer v Howe [2013] NSWSC 462; 85 NSWLR 67. Orders were made on 19 August 2013. Damages of $800,000 and interest of $145,715 were awarded to the respondent. The appellant, as the unsuccessful defendant, was ordered to pay the respondent's costs. 7On appeal, the appellant contends that the primary judge erred in her findings as to the scope of the appellant's retainer by Mrs Fischer and as to the content of the duty of care owed by him to the respondent. The errors are said to be, in part, a product of erroneous fact-finding. The appellant also contends that the findings as to breach of duty, causation and loss are insupportable. Facts 8Dr Michelle Zwi had been Mrs Fischer's general practitioner for many years. Mrs Fischer had mentioned to Dr Zwi that she needed to speak with a solicitor about her legal and financial affairs. She asked if Dr Zwi knew a solicitor she could approach. Dr Zwi was acquainted with the appellant. He and his family were patients of hers. Dr Zwi contacted the appellant and an arrangement was subsequently made for him to visit Mrs Fischer at her home at about 9am on 25 March 2010 for the purpose of a conference. They had not previously met. 9The appellant went to Mrs Fischer's home as arranged. Mrs Fischer's carer was in attendance. The carer met the appellant on his arrival but remained in another room during the subsequent conversation. The only evidence of what transpired at the meeting was that of the appellant. Except as otherwise indicated the account that follows represents the judge's findings based on that evidence. 10The appellant spent about ninety minutes with Mrs Fischer obtaining instructions for a new will. Mrs Fischer told the respondent that she already had a will (being the will of 19 November 2009). When he asked for a copy, she said that she did not have one and that the will was with Mr Francis, the solicitor she had previously instructed. The appellant said that that did not matter and that the exercise could be approached "from scratch". 11The appellant remembered Mrs Fischer as a stately lady dressed smartly in street clothes. He did not observe her to have any difficulty with mobility but accepted that she must have had some problems in that respect because of the reasons he was given for her wish that he visit her at her home. 12The appellant was not told Mrs Fischer's exact age but, since he was informed that her children were 72 and 73, he surmised that she was in her nineties. 13In the course of the conference, Mrs Fischer told the appellant that she wanted a new will because she had lost confidence in Mr Davis, her accountant, who was one of the executors under the 2009 will. Although she did not have any particular objection to Mr Francis, she wanted to replace him as an executor, since Mr Davis had introduced Mr Francis to her. Mrs Fischer said that her late husband's decorations were with Mr Francis for safekeeping and that she wanted them to be displayed in a suitable museum. 14In response to the appellant's questioning about assets, Mrs Fischer identified the unencumbered home unit at Mosman in which she lived, two unencumbered units at Artarmon that were let, shares, a bank account and a pension from the French government. The appellant appreciated that the estate was substantial. 15When the appellant asked Mrs Fischer who was to be the executor of the new will, she said that her son was too ill to take on the task and suggested that the appellant could be appointed. He said that she should think about this and let him know her decision when he brought her a draft of the will. 16There was a discussion between them as to suitable amounts for bequests to Medicins Sans Frontieres and the carer. The appellant noted the initial instruction of $2,000 for Medicins Sans Frontieres and then a change to $3,000. He noted his instruction that a bequest of $30,000 was to be made to the carer. 17Mrs Fischer said that she wanted to leave the residue of her estate as to 50 per cent to the son, 25 per cent to her granddaughter Lilly Fischer and 25 per cent to her grandson Alain Marmont. 18Mrs Fischer said that she did not wish to leave anything to her daughter, Ms Marmont, and explained her reasons. These related to her daughter's conduct after Mrs Fischer had fallen down stairs a few years earlier and broken her hip. She said that the daughter had abandoned her in a nursing home and removed jewellery and furniture while she was there. 19The appellant said words to the following effect to Mrs Fischer: "There are a number of ways a person can challenge another's will. If you do not have testamentary capacity, you cannot make a valid will. If you leave your daughter out, she may be able to make a claim under the Family Provision Act or the Succession Act which now covers that sort of claim, under which a court will decide if provision should have been made for her." 20There was further discussion about the Succession Act 2006 (NSW). The appellant obtained information from Mrs Fischer about the financial circumstances of her two children. The primary judge inferred that this was done to assist the appellant's assessment of the risk that the daughter might successfully claim under that Act. 21The view expressed by the appellant at the conclusion of this part of the discussion was: "Your daughter may have some need. It is hard to say from what you have told me. But the disentitlement factors are quite high." 22The appellant made the following contemporaneous record of advice given on the prospect of a claim for family provision: "Discussed Succession Act/ Family Provision Act Moral Duty Needs Disentitlement factors high." 23At no time during the conference did Mrs Fischer appear to the appellant to be suffering ill health. She did not complain about the length of the conference or ask for any rest. The appellant cannot recall whether she coughed during the conference. Mrs Fischer did not disclose her age, except inferentially by referring to the ages of her children. Nor did she disclose any problems with her health. 24The appellant was aware that Mr Francis and Mr Davis were executors under the 2009 will and that Mrs Fischer wanted them both replaced. He did not, however, know that Mr Davis was a beneficiary under that will. Nor did he know of the other bequests under the 2009 will or how the residuary estate was to be distributed under it. 25The appellant accepted that there was no practical impediment to his making an informal will at the conclusion of the conference since it would not have taken long and there was no indication that Mrs Fischer's attention or energy was flagging. He admitted that he did not give any consideration to an informal will which Mrs Fischer could have signed that day or shortly thereafter. 26At the conclusion of the conference, the appellant told Mrs Fischer that he would be away on leave in Western Australia over the Easter break (no doubt Friday 2 April to Monday 5 April) and would not return to work until after Easter. According to his evidence, he spoke words to the following effect: "I'll prepare a draft will in accordance with your instructions and come back and see you during the week after Easter, if that is OK with you?" 27Mrs Fischer's reply, according to the appellant, was to the following effect: "That's fine. I want my son to be present when you return. We can schedule your visit when he's back in Sydney." 28The "week after Easter" was no doubt the period Tuesday 6 April to Friday 9 April. The appellant's next appointment with Mrs Fischer was thus scheduled for roughly two weeks after the initial conference. 29As the appellant was taking his leave, Mrs Fischer referred again to the fact that Mr Francis was holding her late husband's decorations. He said words to the following effect: "Don't worry, when I come to see you after Easter with the draft will, I will have prepared a written authority to provide to the solicitor for the release of the medals." 30In a subsequent telephone conversation with the respondent (who was, at the time, absent from Sydney), Mrs Fischer told him of her meeting with the appellant and said that she wanted the respondent, Dr Zwi and Mr Hanrahan (a lawyer friend) to be present when the appellant returned. The words spoken by Mrs Fischer, as given in evidence by the respondent, were to this effect: "Everything's okay. I have seen a lawyer. The dispositions are done and I want you and Ross [ie, Mr Hanrahan] to be there, as well as Dr Zwi. She has been very helpful. I want to schedule for him to come back when you arrive." 31The respondent's reply was: "I will be back after Easter". 32Because the appellant and Mrs Fischer were alone during his visit to her home, apart from the initial exchange of pleasantries with the carer, the appellant was the only direct source of evidence about what transpired. The primary judge said that, although the appellant did not have "a verbatim memory" of the conversation, he did have an independent recollection of their meeting. His contemporaneous notes of the conference supported his oral evidence which the judge accepted. The decision of the primary judge 33The primary judge found that the ultimate case put by the respondent as plaintiff at trial was that pleaded as follows: "In the further alternative, given the simple and uncomplicated instructions given to the defendant by Mrs Fischer as pleaded in paragraph 6 hereof . . . the defendant could, and was under a duty to draw up a will in manuscript during the conference he had with Mrs Fischer on 25 March 2010 incorporating the testamentary provisions she had indicated to him and have such document executed by her and witnessed with two persons or, in the event he was unable to find a person to act as a second witness to the document, have Mrs Fischer sign the same and the defendant witness her signature so that Mrs Fischer's [the deceased's] testamentary wishes could be recorded in an 'informal will' for the purposes of s 8 of the Succession Act 2006 and with the intention that the same may be so admitted to probate." 34It was not in contest that the appellant owed a duty of care in negligence to the respondent as an intended beneficiary under the will he was instructed by Mrs Fischer to draw. The primary judge observed, referring to authority, that the principles as to the applicable standard of care are well established and that, while evidence of acceptable practice amongst professionals is a useful guide, it is for a court to adjudicate on what is the appropriate standard of care. 35The primary judge had before her opinion evidence of two solicitors experienced and well versed in the law and practice relating to wills. The respondent relied on evidence given by Ms Suttor. The appellant's witness was Mr Neal. The judge said that, while such expert evidence as to the practice of solicitors is admissible, it is not necessary either to establish negligence or refute it. Her Honour said that she was "greatly assisted" by Ms Suttor's evidence, which she accepted, adding that, after cross-examination, she did not think that "there was any real dispute between Ms Suttor and Mr Neal about what reasonable care required of solicitors". 36Her Honour said that whether a solicitor has been negligent depends on the circumstances of the case and that certain examples "illustrate that fulfilment of the duty generally requires thought to be given by the solicitor as to how the testator's intention to benefit intended beneficiaries is to be made legally effective". She referred to Hill v Van Erp [1997] HCA 9; 188 CLR 159 (failure to ensure that a will was properly executed); White v Jones [1995] UKHL 5; [1995] 2 AC 207 (delay in preparing the will and presenting it for execution); Summerville v Walsh [1998] NSWCA 222 (failing to advise a seriously injured testator unable to sign that the solicitor could do so on his behalf, and failing to proceed to do so); and Maestrale v Aspite [2012] NSWSC 1420 (failing to respond in a timely way to calls following a conference in which instructions for a will were taken when the solicitor must reasonably have known that the purpose of the calls was related to the preparation of the will). The last of these decisions was later the subject of a successful appeal, but only on matters of quantum and costs: Maestrale v Aspite [2014] NSWCA 182. 37 The primary judge then said (at [88]): "These authorities illustrate that the duty of care owed by a solicitor to intended beneficiaries extends to the means by which a solicitor can ensure that a testator's wishes are carried out. There are two principal mechanisms whereby a solicitor can ensure that the client's testamentary intentions are legally effective when the client dies: first, the solicitor can draw up a formal will and ensure that it is duly executed; or secondly, the solicitor can draw up an informal will which will take effect by reason of s 8 of the Succession Act. These steps are not strictly alternatives since an informal will can be prepared and later superseded by a formal will." 38A brief word should be said about the alternatives mentioned by the judge. The reference to a "formal" will is to a will executed according to the formalities prescribed by legislation derived from s 9 of the Wills Act 1837 (Imp), that is, by being signed at the foot or end thereof by the testator in the presence of two other persons who in turn sign as attesting witnesses. An "informal" will is, by contrast, a document stating testamentary intentions but not executed according to those formalities that the Supreme Court, as envisaged by s 8 of the Succession Act, is satisfied was intended by the person to be their will. 39The judge accepted that the scope of the retainer is the principal matter that delineates the scope of the duty of care to an intended beneficiary since a solicitor generally has no duty with respect to matters going beyond the limits of his retainer. Crucially, the judge found (at [90]) that the retainer was a retainer: "to give legal effect to the deceased's testamentary intentions, and not merely . . . to prepare a formal will and arrange for its execution" adding (at [90]-[91]): "Where the law provides, as in s 8 of the Succession Act, for an avenue for giving legal effect to testamentary intention in addition to making a formal will, its "informality" is no reason to disregard the availability of that avenue. The making of an informal will is merely another way of achieving a particular legal effect and is, in my view, relevantly analogous to the procedure considered in Summerville of a solicitor signing a will on behalf of a client as provided for by s 7 of the Wills Probate and Administration Act. In the circumstances of the instant case the duty the defendant owed to the plaintiff as an intended beneficiary required him to procure an informal will on 25 March 2010." 40The matters to which the judge made particular reference in reaching that conclusion were the following: 1. The deceased had a settled dispositive intention in respect of the whole of the estate and, importantly, wanted to change her executors, something that should have been recognised as significant. 2. The settled nature of the intentions was indicated by the deceased's words to the respondent "the dispositions are done" and the fact that she wished the respondent, Dr Zwi and Mr Hanrahan to be present "to ensure that the best assessment of her testamentary capacity was available to defend her will against a potential challenge by her daughter". 3. The appellant knew that the deceased: (a) was at least in her nineties since her two children were in their seventies; (b) had difficulties with her mobility and required a carer; (c) had fallen and broken her hip some years earlier leading to hospitalisation and a period in a nursing home before she could return home; (d) was at greater risk of falling and sustaining serious injury or having a stroke or other cerebral event or other incident that would compromise her testamentary capacity than had she been younger; (e) was adamant that she wanted to change the identity of her executor because she had lost faith in him; and (f) wanted to change the dispositions, any prevarication as to the amounts to be given to the carer and Medicins Sans Frontieres having been resolved in the course of the conference. 41The judge observed that "the reason for the delay in preparation of the formal will for execution was because of the defendant's [ie, appellant's] own commitments"; that the appellant "was responsible for the delay"; that the appellant accepted that there was no practical impediment to his drawing up an informal will while present at Mrs Fischer's home; and that he had said in his evidence: "If I had any reason to believe that Mrs Fischer was in such poor health when I spoke with her that she was at risk of imminent death, I could and would have prepared a manuscript will for her there and then and had her execute that will, if she was willing to do so." 42Her Honour's conclusion was then stated: "I consider that the defendant was negligent in failing to procure an informal will at the conference on 25 March 2010. He could have done so. His failure to do so was a breach of his duty to exercise reasonable care. Although the deceased may not have been at risk of imminent death as Dr Zwi understood the term, being at risk of dying within hours or within a day, she was, by reason of her age, lack of mobility, need for care and infirmity, susceptible to a not insignificant risk of losing her testamentary capacity in the period of about a fortnight between the initial conference and the proposed conference. There was no reason for her, or her intended beneficiaries, to be subjected to that risk in light of her settled testamentary intentions, both as to dispositions and as to her desire to change her executors, and the circumstance that it was the solicitor who was responsible for the delay." 43Having found negligence, the judge considered whether the defence created by s 5O of the Civil Liability Act 2002 (NSW) was available. She decided that it was not. Her Honour then said: "In an event, I do not accept that there is a rational distinction between a dying client who is in a hospital bed and someone about to make an overseas trip on the other hand, and the deceased's situation on the other. Her age and infirmity put her closer to the precipice between testamentary capacity and the lack thereof than most. Her dispositive intention with respect to the residue of her estate can be taken to have been settled before the conference and, to the extent that it required some resolution in respect of specific bequests to a charity and to her carer, this was done in the course of the conference. Although the deceased was not definite about who her executor would be, she was adamant about who she did not want her executors to be: namely those named in what was then her last will." Grounds of appeal 44The appellant takes issue with the following important findings made by the primary judge: (a) that, by the end of the conference, Mrs Fischer had a settled dispositive intention as to the whole of her estate and there was no uncertainty as to her testamentary intentions; (b) that Mrs Fischer's purpose in wishing the respondent (her son), Dr Zwi and Mr Hanrahan to be present when the appellant returned was "to ensure that the best assessment of her testamentary capacity was available to defend her will against a potential challenge by her daughter"; (c) that there was "a not insignificant risk" that Mrs Fischer would lose testamentary capacity in the period of some two weeks between the conference on 25 March 2010 and the end of the week immediately after Easter (9 April 2010); (d) that the appellant was (or ought to have been) aware of that risk; (e) that there was no rational distinction between, on the one hand, the situation of a client who is dying in a hospital bed or about to make an overseas trip and, on the other, Mrs Fischer's situation; (f) the reason for the delay in the preparation of a formal will was the appellant's own commitments and he was responsible for the delay. 45The appellant also challenges the finding that the retainer was a retainer "to give legal effect to the deceased's testamentary intentions" and the finding that the care that the appellant was called upon to exercise required him to "procure" that Mrs Fischer execute an informal will. 46It is desirable that the challenges to factual findings be addressed first. Factual matters - settled testamentary intentions? 47The appellant takes issue with the judge's findings that, by the end of the conference, Mrs Fischer had a settled dispositive intention as to the whole of her estate and that her purpose in wishing the respondent, Dr Zwi and Mr Hanrahan to be present when the appellant returned after preparing the draft will was "to ensure that the best assessment of her testamentary capacity was available to defend her will against a potential challenge by her daughter". 48There is substance in the position the appellant takes. 49The respondent emphasises that Mrs Fischer said to him on the telephone after her meeting with the appellant words to the effect, "the dispositions are done". It is true that, after discussion on certain aspects, Mrs Fischer gave the appellant instructions as to the several dispositions to be included in a will. But there was one matter (admittedly not a "disposition") that was not settled: the identity of the person to be named as executor. When asked who the executor was to be, Mrs Fischer said that the respondent was too ill to take on the task and suggested that the appellant might be appointed, to which he replied that she should think about the matter and let her know her decision when he returned with a draft of the will. To that extent, the content of any will was uncertain. 50There is also the significant point that the instructions given represented a radical departure from the will made only some four months earlier (under which the carer took 30 per cent of the residuary estate, Medicins Sans Frontierers took 10 per cent, the respondent took 25 per cent and the balance went to four other family members) and that the appellant had given certain advice about the possibility of challenge by the daughter should she again be omitted (as she was from the 19 November 2009 will). 51It was, in my judgment, by no means clear that Mrs Fischer had, in her own mind, committed herself irrevocably to the scheme of benefaction communicated in the course of her conference with the appellant. He himself said in his evidence that, at the meeting, she "didn't seem to, you know, be thinking or had thought about it before I saw her" - an impression that was necessarily confirmed by the fact that several possibilities about relatively small gifts to the carer and Medecins Sans Frontieres (major beneficiaries under the 19 November 2009 will) were discussed. And there was no evidence that Mrs Fischer had previously been advised about the implications of excluding her daughter. That, once explained by the appellant, is something upon which Mrs Fischer may well have reflected further pending the appellant's return in the week after Easter. 52It is significant that, on the appellant's account, he was to return at that point with what, according to his evidence, he referred to on two occasions at the end of the conference as "the draft will", that is, something that was incomplete or provisional. 53This leads to the question why Mrs Fischer wanted the respondent, Dr Zwi and Mr Hanrahan to be in attendance when the appellant returned. No clear or obvious answer emerges from the evidence. One can only speculate. Perhaps, as the judge thought, Mrs Fischer had the knowledge and insight to realise that evidence from persons such as Dr Zwi and Mr Hanrahan as to her demeanour and actions when signing a will would be of value should there be any allegation in due course that she had lacked testamentary capacity. Alternatively, Mrs Fischer may have wished to sound out Mr Hanrahan or Dr Zwi or both about the possibility of acting as executor; or she may have wished to discuss with them other matters relevant to the content of the will. Perhaps she simply wanted the persons who were close to her and who she trusted to meet the solicitor into whose hands she had now put her testamentary affairs. 54All these possibilities (and no doubt others) present themselves as matters of speculation. There was, in my opinion, no sound basis in the evidence for the primary judge to prefer one possibility to the others or for the factual finding that was made. Factual matters - risk of death or loss of testamentary capacity? 55The appellant challenges the findings that there was "a not insignificant risk" that Mrs Fischer would lose testamentary capacity in the period of some two weeks between the conference on 25 March 2010 and the end of the week immediately after Easter (9 April 2010) and that the appellant was (or ought to have been) aware of that risk. The reference to risk of loss of testamentary capacity is to be understood as including risk of death. 56The judge made findings as stated at [23] above as to the appellant's observations of Mrs Fischer. She did not appear to him to be suffering from ill health. She did not refer to any health problems; nor did she complain about the length of the conference or ask for any rest. He was, however, aware that she needed him to visit her at home rather than visiting his office. And he inferred from what she said about the ages of her children that she was in her nineties. In light of those observations, the only conceivable basis for the finding of "not insignificant risk" made by the judge was sourced in the attributes of advanced age and limited mobility. 57It is obvious that a person aged 94 has a life expectancy shorter than that of someone aged 34, 54 or 74. But life expectancy as such is not the issue. Rather, the question is whether there was a sound basis for the conclusion that there existed a "not insignificant risk" that death or intellectual impairment would occur in the particular period of about two weeks and that the appellant should have been aware of that risk. 58The appellant himself formed an opinion during the conference that Mrs Fischer was "mentally intact" (words he used when contacted by Mr Francis after Mrs Fischer's death). He had been told by Dr Zwi when she first contacted him that, in her opinion, Mrs Fischer was "of sound mind and mentally intact" (again, words spoken by the appellant to Mr Francis) - or, in words recorded as having been spoken by Dr Zwi at that point, that Mrs Fischer "has all her marbles". 59There was no evidence that, as at 25 March 2010, Mrs Fischer's medical condition was such as to indicate impending death or loss of mental capacity. Dr Zwi gave evidence of the medical history. As at late 2009 and early 2010, she regarded Mrs Fischer's health as "poor", adding: "She was elderly, frail and had very poor eyesight. I observed that she needed a full time carer to function." 60Dr Zwi was called to Mrs Fischer's home on both 26 and 29 March 2010. She diagnosed pneumonia, prescribed antibiotics and recommended admission to hospital. Mrs Fischer refused to go to hospital. Dr Zwi arranged visits by a nursing service to administer antibiotics intravenously. Other tests administered by Dr Zwi disclosed "nothing out of the ordinary". Dr Zwi made home visits again on 30 March, 1 April and 6 April 2010. She gave evidence of her observation of various aspects of Mrs Fischer's condition on the last of these days (6 April 2010): in summary, pneumonia continued but was being treated and the doctor "did not note anything which concerned me or suggested during the course of this consultation that the Deceased would die that day". When telephoned by the carer on the afternoon of the same day and informed that Mrs Fischer had died, Dr Zwi was "absolutely shocked to hear this". 61The evidence does not support a finding of "not insignificant risk" of death or loss of testamentary position in the relevant period of about two weeks. Nor does it support a finding that the appellant should have been aware of such a risk. Factual matters - similarity to an obviously urgent case? 62The appellant challenges the finding that there was no rational distinction between, on the one hand, the situation of a client who is dying in a hospital bed or about to make an overseas trip and, on the other, Mrs Fischer's situation. 63For reasons just discussed in relation to risk of supervening death or loss of capacity, that finding is not supported by the evidence. Factual matters - reason for the delay? 64The appellant challenges the finding that the reason for the delay in the preparation of a formal will was the appellant's own commitments and that he was responsible for the delay. 65Three pertinent aspects of the evidence must be mentioned. First, the appellant proposed the particular timing (giving reasons) and Mrs Fischer agreed to it. Secondly, there must have been a common expectation that no work would be done during the Easter period. Thirdly and crucially, Mrs Fischer told the appellant that she wished the respondent to be present when the appellant returned; and she said to the respondent on the telephone that she wanted to schedule the appellant's return visit after the respondent's return to Sydney which was to be after Easter. 66The finding that should have been made on the basis of the evidence is that, while it suited the appellant to return with the draft will in the week after Easter, that timing was expressly agreed to by Mrs Fischer and accorded with her stated desire that the respondent (who was due to return to Sydney after Easter) should be present on that occasion. It simply cannot be said that the appellant unilaterally dictated the timing to suit his own convenience. The retainer and the duty of care 67As already noted, the primary judge concluded that the appellant's retainer was to give legal effect to Mrs Fischer's testamentary intentions and not merely to prepare a formal will and arrange for its subsequent execution, with the result that due performance of the retainer entailed procuring immediate execution of an informal will. In my respectful opinion, that conclusion was erroneous. 68The evidence showed that Mrs Fischer had made formal wills on at least nine occasions between 1982 and 2009. Each of the wills in evidence was obviously typed in a solicitor's office to give effect to instructions previously communicated. Mrs Fischer must therefore be taken to have been familiar with the process that involves the solicitor's taking instructions, drawing the will at some later time and then meeting with the client again on a subsequent occasion to check that the will, as drawn, meets the client's requirements and, if it does, to ensure that the will is properly signed and attested. 69The evidence points very clearly to an intention on Mrs Fischer's part that that course should be followed in relation to the will she instructed the appellant to prepare. Not only did Mrs Fischer accept that the appellant would return with a draft will at a future time, she also wished three persons in addition to herself and the appellant to be present on that occasion. Furthermore, Mrs Fischer did not demur when the appellant said that he would bring the draft will for her approval during a specified later period. She agreed that the appellant should make contact with her after his return from Western Australia and arrange to visit her again in the week after Easter, at which time the respondent would be back in Sydney and Mrs Fischer's wish to have him, Dr Zwi and Mr Hanrahan attend her next meeting with the appellant could be realised. 70There was no basis in the evidence for any finding that the express terms of the retainer were any more far reaching than is indicated by that intention and agreement on Mrs Fischer's part. It may be accepted, however, that there were also implied obligations because of the circumstance that the appellant was to bring to bear specialised professional knowledge, skill and experience. Thus, for example, if there were to the appellant's knowledge some factor at work that, as a matter of reasonable foresight, might cause the legal result sought by the client to be frustrated, it was part of his duty as a solicitor to take such reasonable precautions, if any, as were available to avert that consequence. In a compendious sense, therefore, the duty of the appellant arising from the retainer may be regarded as a duty to take reasonable steps to achieve, by the exercise of the care and skill of the ordinarily skilled solicitor, two things: first, fulfilment of the client's objective of making a formal will according to the agreed timeframe and, second, the avoidance of any reasonably foreseeable frustration of that objective. 71The duty to the client, pursuant to the appellant's retainer, was to bring to bear the reasonable care and skill of the ordinary practitioner exercising and professing to have the special skill relevant to the field of professional practice: Rogers v Whitaker [1992] HCA 58; 175 CLR 479 (at 483); Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 (at [144]). By virtue of his having been retained by Mrs Fischer to prepare a will under which the respondent was to be a substantial beneficiary, the appellant incurred a duty of care to the respondent. As explained in Hill v Van Erp (above), that duty took its content from the retainer itself, in the sense that any breach of the retainer by failing to take reasonable care to perform and fulfil it would also be a breach of the appellant's duty to the respondent as an intended beneficiary if the respondent thereby suffered foreseeable loss upon Mrs Fischer's death. Brennan CJ there pointed out (at 171) that "the duty of care owed by the solicitor to the intended but disappointed beneficiary is in the performance of the work in which he owes a corresponding duty - albeit contractually - to the testator". 72As Tobias AJA observed (with the concurrence of Ward JA) in Vagg v McPhee [2013] NSWCA 29 (at [49]), citing Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93, the solicitor's duty to the disappointed beneficiary is circumscribed by "the terms of the retainer and the instructions of the client, to whom the primary duty is owed". Breach? 73The primary judge concluded that there was a breach of the retainer as she had formulated it (that is, a retainer to give legal effect to Mrs Fischer's testamentary intentions and not merely to prepare a formal will and arrange for its later execution) because the appellant did not "procure" the execution by Mrs Fischer of an informal will. On that view of matters, the retainer required that the solicitor prepare on the spot (or immediately afterwards) a handwritten document setting out Mrs Fisher's wishes as communicated (presumably with no nomination of an executor but an implicit expectation that a grant of administration would be sought by a person with a clear interest) and then "procure" the signing of that document by Mrs Fischer. 74Even if the judge's formulation of the retainer is accepted (which, as I have said, it should not be), the most that could have been required of the appellant was the exercise of reasonable care in advising Mrs Fischer that it was possible for her to sign virtually immediately a statement of testamentary intentions in the expectation that, if she died or lost capacity in the relevant period of about two weeks, the Supreme Court might be expected to make a positive decision in relation to it under s 8(2)(a) of the Succession Act, thereby causing the document to be treated as her will. There could not have been any duty to "procure" that Mrs Fischer do anything in response to that advice. 75On the formulation of the retainer that I consider to be required by the evidence, however, any duty to call attention to the possibility of making an informal will would have arisen only if the appellant was aware that some factor was at work that, as a matter of reasonable foresight, might cause to be frustrated Mrs Fischer's objective of making effective testamentary dispositions by means of a formal will in about two weeks time. The only such factor that could have been relevant was awareness, entertained as a matter of reasonable foresight, that Mrs Fischer might be expected to die or lose testamentary capacity in the relevant period of about two weeks. 76For reasons discussed at [55]-[61] above, I am of the opinion that there was no basis on which the appellant should have been held to be so aware, as a matter of reasonable foresight. There was accordingly no breach of retainer. Conclusion 77Since there was no failure on the part of the appellant to perform his retainer, there was no breach by him of the duty of care he owed the respondent. Expert evidence 78There is, in my opinion, no need to say anything about the expert evidence before the primary judge. Apart from anything else, the conclusion that the appellant did not breach the duty of care he owed the respondent has been reached without any need to resort to s 5O of the Civil Liability Act and to assess what was, at the relevant time, "widely accepted in Australia by peer professional opinion as competent professional practice". 79The courses available to persons wishing to make testamentary dispositions (including by way of informal will) are not conceptually complex. I dare say that any intelligent layperson could grasp them quite adequately after short explanation. Expert evidence is not needed at that level. Once the concepts are understood and then applied to the particular fact situation, the requirements of reasonable care and precautions are not difficult to appreciate. Nor does expert evidence assist in working out the terms of the retainer. 80This particular case about the professional responsibility of a solicitor is, in my assessment, one in which "the court itself is sufficiently equipped to form an opinion about legal practice unaided by expert opinion", to quote words which were used by Brereton J in Lucantonio v Kleinert [2009] NSWSC 853 at [8] and in substance repeated by his Honour in Keesing v Adams [2010] NSWSC 336 at [35]. That position that has been endorsed more than once in this Court (see, for example, Attard v James Legal Pty Ltd [2010] NSWCA 311 at [131], Zakka v Elias [2013] NSWCA 119 at [105]; Takla v Nasr [2013] NSWCA 435 at [38]) and is consistent with observations of intermediate appellate courts elsewhere in Australia (see, for example, Neagle v Power [1967] SASR 373 at 376; Dickson v Creevey [2002] QCA 195 at [15]) 81This is not to say that there may not sometimes be cases in which evidence of a particular practice or standard of conduct, whether laid down by a professional body or sanctioned by common usage, will be relevant to establishing a standard of care in a professional negligence case. Gummow, Kirby, Heydon, Crennan and Kiefel JJ made express reference to that possibility in CGU Insurance v Porthouse [2008] HCA 30; 235 CLR 103 at [72]. As their Honours also observed, by reference to observations of Young J in Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735 at 738, however, expressions of personal opinion about what an individual would have hypothetically done if in the same position as the defendant might be thought to be of little assistance. Disposition 82This Court should, in my opinion, make the following orders: 1. Appeal allowed. 2. Set aside the orders made in the Common Law Division on 19 August 2013. 3. In lieu thereof, make the following orders: (a) Order verdict and judgment for the defendant. (b) Order that the plaintiff pay the defendant's costs of the proceedings. 4. The respondent pay the appellant's costs in this Court 5. The respondent have a certificate under the Suitors Fund Act 1951 (NSW) if qualified. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2014