10 Minutes Too Late and Importance of Timely Instructions

Maestrale v Aspite [2012] NSWSC 1420 highlights the importance of acting on instructions in a timely and professional manner.

A solicitor who was ultimately found to have acted negligently for failing to attend having a Will executed by a terminally ill client prior to his death.

The solicitor was found to have owed a duty of care to the intended beneficiaries under the unexecuted ‘new Will’.


A solicitor received instructions to prepare a Will for a client whom he knew to be terminally ill. The ‘new Will’ was to be drafted to bequeath a far greater proportion of the client’s estate to the client’s son, the Plaintiff, had been his full-time carer during the period in which he had been suffering from terminal illness.

In seven days following the receipt of instructions to prepare the Will, the client’s son contacted the solicitor on numerous occasions to advise that his father’s death was imminent and requested he attend the hospital to execute the ‘new Will’ as a matter of urgency.

The solicitor failed to take heed of these directions and prepared the Will one week after receiving his initial instructions. He then attended the hospital to have the Will executed but unfortunately arrived 10 minutes after the testator had passed away. Given that the Will could now not be executed the intended benefit to the client’s son was invalid.

As a result, the client’s son failed to receive the increased benefit his father wished to assign to him. Accordingly, the son brought proceedings against the solicitor for negligence.

Implications of Decision
  • Fullerton J relied on Hill v Van Erp [1997 HCA 9; 188 CLR 159.
  • In Hill, a solicitor was held liable to the intended beneficiary under a Will where the disposition was rendered ineffective because the husband of the intended beneficiary had been asked to attest the Will.
  • A solicitor accepts responsibility for carrying out a client’s testamentary instructions cannot be held devoid of any responsibility to an intended beneficiary. Such a responsibility arises from the solicitor’s undertaking of the duty to ensure that the testator’s intention of conferring a benefit upon a beneficiary is realized.
  • A solicitor may be seen as assuming a responsibility to both the intended beneficiary and the testator. This results from the fact that the intended beneficiary’s interests are totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor. It is an easily foreseeable event that if reasonable care is not exercised by the solicitor in performing the assigned task, the intended beneficiary will not receive the property assigned to them.
  • The primary duty in this type of occurrence is obviously owed to the client in the first instance. There remains, however, a secondary duty to a third party, namely, the intended beneficiaries. This secondary duty may co-exist with the primary duty, but it cannot, in any circumstances, override it.
  • A solicitor must first ensure they carry out the client’s instructions in drafting the Will, and then secondly, ensure that it is drafted and executed validly so that the intended beneficiary will, in fact, receive the intended benefit.
  • The Court held that the plaintiff’s entitlement to damages for breach of the solicitor’s duty to him is properly characterized as the loss of a chance of him obtaining a benefit under the ‘new Will’, which was significantly more valuable than what he received under the ‘old Will’.
What Should Have Occurred
  • The client had given clear and unambiguous instructions to the solicitor to prepare a Will under which the plaintiff would benefit, to a material degree, differently then what he would under the ‘old Will’.
  • The solicitor was aware of the fact that the client was terminally ill and only given a relatively short time left to live. As such, he had a coexistent duty to the plaintiff to ensure in the event of any changes in the client’s health or capacity he would make prompt arrangements to attend the hospital with a formal Will for execution.
  • Ignoring the calls and messages of the client’s son for an extensive period of time whilst he was aware of the client’s illness and rapidly declining health was a breach of both the primary and secondary duties owed by the practitioner.
  • A solicitor (or for that matter any intermediary between the testator and solicitor) should always ensure that client’s instructions are attended to in a timely and professional manner so as to avoid any possible breach of duty owed to various parties.
  • In the event that the solicitor is unable to prepare a Will in the time before the client’s death, the solicitor should attend the hospital to have the testator sign the Will instructions or had him sign them during their initial conference, in accordance with section 18A of the Probate and Administration Act 1898, to create an ‘informal Will’that would recognise the plaintiffs interest in the testators property.

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