Green v Green

HIS HONOUR: On 13 and 14 December 2022, four to five days prior to his death on 18 December 2022, the late Richard John Green (the deceased) executed a raft of documents relating to his personal, corporate and testamentary affairs (contested documents), the validity of all but one of which is in dispute in these proceedings.

The parties are at issue in respect of the appropriate form of a joint letter of instruction to be given to a consultant geriatrician in respect of matters bearing upon the capacity of the deceased to have validly executed the contested documents. The parties have applied to the Court to settle the form of joint letter of instruction.

In the result, I have settled the form of joint letter of instruction, which (omitting formal parts) is set out in the Schedule to these reasons for judgment.

It is common experience that disputes such as these arise in part out of different understandings of the purposes of expert evidence and also from disparate views regarding what facts and materials may be relevant to instruct an expert.

Because such disputes arise not infrequently in the course of probate claims, I have determined to address a number of principles and observations regarding letters of instruction to experts in the hope that, in so doing, future disputes may be avoided or quelled in part.

In or about 2012, the deceased formed a relationship with Elsa Green (née Enciso Silva) (the Plaintiff), who was born in Colombia in April 1962 and is now aged 62. She had lived in Spain for some period of time prior to meeting the deceased. They married on 11 August 2012.

The first (and only active) defendant is the deceased’s brother Michael (the Defendant). He is the deceased’s only sibling. The Defendant is married to Janelle, the third defendant. They have three adult children: Jonathan, Ellen and Amy.

The second defendant is Richard J Green Enterprise Pty Ltd (Enterprise), which is a corporate vehicle for various purposes more particularly described below, including acting as the trustee for the RJG Family Trust (Trust).

Prior to 2012, the deceased was in a long-term relationship with a woman identified as Katherine Brennan or “Kathy”, who died at a date which is elusive on the materials currently before the Court but seemingly in or about 2010.

The Plaintiff has four siblings – two brothers and two sisters, one of whom, Janeth, is a twin sister.

Other persons associated with the deceased include:

The deceased left an estate which, according to the inventory of property, included the following:

The Defendant’s administrator affidavit, sworn 21 June 2023 in a related family provision claim (see below), gives a degree more detail regarding the status of deceased’s estate and financial affairs.

A real estate appraisal of the Sussex Inlet property gave an estimate value as at June 2023 of between $1.75 million and $1.85 million.

The two Bendigo Bank accounts have been closed, the monies transferred to an estate bank account and a loan outstanding to Bendigo Bank in the deceased’s name in the sum of approximately $137,000 has been discharged.

The Defendant deposed that the deceased had owned in excess of five hundred collectible model cars thought to be present at his residence as at the date of death. However, he indicated that only sixty of those cars had been recovered. It is asserted that the remaining cars would have a value of approximately $110,000.

In its capacity as trustee of the Trust, Enterprise owns a property at Iverison Street, Sussex Inlet, being a block of residential flats (Sussex Inlet units), purchased in or about 2016. The property is said to have a value of $1.1 million to $1.2 million as at June 2023, according to a real estate appraisal.

Aside from acting as trustee of the Trust, Enterprise operates the Sussex Inlet Marina in its own right, which was purchased in or about 2015.

The Defendant believes a property in Western Australia which was sold in 2020 had also formed part of the Trust, but he has no records in relation to that property or its sale.

Relevantly, the deceased made two Wills, one on 3 June 2015 (2015 Will) and one on 14 December 2022 (2022 Will).

Probate of the 2022 Will was granted to the Defendant on 11 April 2023.

By the 2022 Will, the deceased appointed the Defendant as his executor and trustee. He bequeathed the entirety of his estate on trust for sale and conversion to pay various liabilities, including debts, funeral and testamentary expenses, and to hold the balance as to $1 million for the Plaintiff and as to the remaining balance (in the events which have occurred) for the Defendant’s three children in equal shares as tenants in common.

By the 2015 Will, the deceased appointed the Defendant as executor and trustee. He bequeathed to the Plaintiff:

The deceased gave the rest and residue of his estate on trust for the Defendant.

A question of construction might arise regarding the gift of the Sussex Inlet units. Prima facie, there is a conceptual difficulty in the deceased (directly) being able to gift the Sussex Inlet units, which are owned by Enterprise. However, that difficulty has not yet been addressed by the parties and was not the subject of any submissions. It suffices to note that there are some cases in which it has been held that a gift of property not held by a deceased, but by a company in which the deceased owned shares, may still be given effect to: see e.g. Ireland v Retallack [2011] NSWSC 846 at [11]-[16] per Pembroke J.

On 13 December 2022, the deceased signed two of the four contested documents, being:

I note that there is some imprecision in the Plaintiff’s pleadings in respect of the operative instruments which effected the share issue and the director and secretary appointments. It appears to be assumed in those pleadings that the Form 484 documents lodged with ASIC were the operative documents by which the two new shares were issued and the director and secretary appointments made. Strictly speaking, that would appear to be irregular and at least unusual. That assumption has carried through into the form of the disputed joint letter of instruction. I address this further below.

The purpose of Form 484 documents is to notify a corporate change, not to create or effect a corporate change. The form is lodged to notify ASIC of the changes in the company’s details. Statements in the Form 484 documents might in a number of instances provide some evidence of a corporate decision having been made. However, they are not the usual means by which valid corporate decisions are made. The signing of such a form in the absence of an underlying valid resolution of the company (or any express statutory validating provision) would not obviously per se be valid to effect the change recorded.

On 14 December 2022, the deceased executed the remaining two of the four contested documents, being:

I note that, in addition to those documents, the deceased also executed an appointment of enduring guardian on 14 December 2022 (appointing the Defendant as enduring guardian, with Janelle as substitute enduring guardian). However, the Plaintiff does not claim any specific relief in relation to the execution of that document, nor do the parties seek to have the expert opine on the deceased’s capacity to execute that document.

On 21 April 2023, the Plaintiff filed a summons in associated proceedings (2023/128988) seeking a family provision order out of the estate or notional estate of the deceased (family provision claim).

On or about 29 June 2023, a mediation of the family provision claim was held but not successful.

In the family provision claim, the Plaintiff has filed an affidavit in chief, as well as affidavits from her sister Janeth and Janeth’s husband Dennis, in support of her claim. The Defendant has filed and served a number of the prescribed affidavits in accordance with Practice Note SC EQ 07, including an affidavit in reply to the Plaintiff’s affidavits.

On 10 August 2023, the Plaintiff commenced the current proceedings by statement of claim seeking amongst other matters:

The Plaintiff's claims for relief and pleadings have evolved since her statement of claim was first filed through three further pleadings, being an amended statement of claim (filed 7 September 2023), a further amended statement of claim (filed 8 December 2023) and a second further amended statement of claim (filed 28 February 2024).

The last-mentioned document principally seeks the following relief:

On 19 February 2024, each of Enterprise and Janelle filed submitting appearances (save as to costs).

On 18 April 2024, a defence was filed to the second further amended statement of claim. The same day, the Defendant filed a statement of cross-claim seeking a grant of probate in solemn form of the 2022 Will to him. On 23 September 2024, the Plaintiff filed a defence to that cross-claim disputing the relief on the grounds of testamentary capacity, estoppel, undue influence and/or “undue pressure”.

A number of affidavits have been filed and served in these proceedings, including a substantive affidavit from the Plaintiff and affidavits from Dennis, Cynthia Hayward (who knew the Plaintiff and the deceased through a church connection) and Alan Gray (who was employed by the deceased at the marina and worked on and off for the deceased for approximately five years). On the Defendant’s side, a number of affidavits have been filed and served, including from Shayn Peter Moss (a mechanic and general hand who worked at the marina), Carl Glover (the operations manager at the marina), Ms McCarthy, Mr Mattick, Jonathan Green (the deceased’s nephew) and the Defendant himself.

Having regard to common material and the parties’ competing proposed forms of joint letter of instruction, it appears that the parties are agreed (or at least do not dispute) that, at least from 2013, the deceased suffered from a number of medical conditions including pancreatic cancer, chronic major depressive disorder, chronic pain disorder, type II diabetes, osteoarthritis and severe carpal tunnel syndrome.

In or about September 2022, the deceased was diagnosed with pancreatic cancer. The deceased appears to have had a number of admissions to Shoalhaven Hospital between September and December 2022.

On 13 December 2022, the deceased was admitted to David Berry Hospital.

The parties are agreed that, on 14 December 2022, the deceased received at various times during the day (commencing from 8am through to approximately 8pm) a number of doses of medications, including a morning and evening dosage of OxyContin.

Without first having obtained leave of the Court, both parties caused to be issued a number of subpoenas. The Defendant caused to be issued a subpoena to the Commissioner of Police seeking documents said to relate to a past domestic dispute between the deceased and the Plaintiff.

As at February 2024, the Plaintiff had issued seven subpoenas, being relevantly to:

On 23 February 2024, the matter was listed before Kunc J. A number of case management orders were made, including orders permitting the Plaintiff to file and serve the second further amended statement of claim. His Honour also granted leave for the issue of the subpoenas (in context, effectively leave nunc pro tunc) and made orders granting the parties access to six of the subpoenaed packets.

On 28 August 2024, the matter was listed before Registrar Gerritsen who made further case management orders, including relevantly:

On 3 October 2024, the matter was again listed before Registrar Gerritsen. The Registrar relevantly made orders:

On 17 October 2024, the legal representatives for the parties appeared before the Registrar and, in a context in which there was still disagreement regarding the terms of the joint letter of instruction, the matter was referred to me as Family Provision List Judge to address the terms of the letter.

On that occasion, the parties handed up competing versions of the proposed joint letter of instruction. Together, the two versions were marked MFI-1.

The Plaintiff’s proposed letter was seven pages in length and set out, inter alia:

The letter indicated that the notes and records of the deceased’s admission to Shoalhaven Hospital and David Berry Hospital, along with the deceased’s death certificate, the two Wills and the Expert Witness Code of Conduct, would be attached.

The Defendant’s proposed letter, on the other hand, was only two pages in length. The letter posed two questions: whether the deceased as at 14 December 2022 had the capacity to provide instructions for and to execute the 2022 Will; and whether the deceased as at 14 December 2022 had the capacity to know and understand the effect of the provisions of a Will.

On the hearing of the application, I made a number of comments and suggested to the parties that, in light of my comments, they attempt to revisit the drafts of the joint letter of instruction to see whether they could either reach agreement regarding the form of the letter or at least narrow the issues between them.

On 24 October 2024, the matter was relisted before me with the parties having sent to my Associate the prior evening revised versions of their competing joint letters of instruction.

The competing joint letters of instruction are marked MFI-2. They are respectively fourth drafts of such letters.

The Plaintiff’s proposed letter is nine pages in length. The Defendant’s proposed letter is essentially a marked-up version of the Plaintiff’s letter which strikes through large parts of the Plaintiff’s letter. I have used the word “essentially” because some part of the background material in the Defendant’s proposed letter is in a slightly different form from that which appears in the background material in the Plaintiff’s proposed letter.

The Plaintiff’s proposed letter is in substantially similar form to her earlier draft letter, although there have been some modifications.

The content of the Plaintiff’s proposed letter is broken down into sections with the following headings:

The Defendant’s competing proposed letter deletes much of the material under the heading “Background”, most of the material under the heading “David Berry Hospital” and all of the material relating to the legal test for capacity to make a Will, the legal test for capacity to execute documents other than a Will, the nature and effect of the 2022 Will and the nature and effect of the power of attorney and the company documents.

In addition, a small part of the wording under the heading “Issues” has been struck through, which wording relates to the legal tests referenced above.

Thus, the only common ground between the parties in the competing proposed letters essentially consists of: the content detailing the relevant parties and their relationship to the deceased; the issues, in which five specific questions are raised; the provision of the notes and records from Shoalhaven Hospital and David Berry Hospital; a summary of the deceased’s cause of death; the provision of a copy of the deceased’s death certificate; the provision of copies of the two Wills; the details regarding the deceased’s conditions; the brief background to the deceased’s hospital admission on 13 December 2022; the summary of medications; and the details regarding the obligations of the expert under the Expert Witness Code of Conduct.

The questions posed to the expert, which are agreed between the parties (but, as will be seen below, I have materially revised), are as follows:

The immediate dispute in this case relates to the terms of the joint letter of instruction to the expert. Resolving that dispute is informed by understanding the purposes of expert evidence and the principles applicable to adducing expert evidence in expert reports.

In turn, that understanding is more generally informed by an understanding of the legal principles regarding capacity and how the Court is assisted in determining whether capacity is found in any given case.

Broadly speaking, the validity of instruments in any proceeding depends upon the possession by the party executing the instrument of a degree of understanding relative to the nature of that which they were doing: Gibbons v Wright (1954) 91 CLR 423 (Gibbons) at 437 per Dixon CJ, Kitto and Taylor JJ; [1954] HCA 17.

The law does not prescribe any fixed standard for capacity as requisite for the validity of all transactions. It is task-specific. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind to be capable of understanding the general nature of what he or she is doing by his or her participation: Gibbons at 437. Thus, the mental capacity required by the law in respect of any instrument may be described as the capacity to understand the nature of that transaction when it is explained: Gibbons at 438.

Ordinarily, the nature of the transaction means the broad operation or the “general purport” of the instrument but, in some cases, it may mean the effect of a wider transaction which the instrument is a means of carrying out: Gibbons at 438.

One cannot consider capacity “in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case”: Gibbons at 438, quoting Estate of Park (1954) P 112 at 136 per Hodson LJ.

Thus, to give an example, in Gibbons there were transactions between related parties, including two sisters, in respect of property that had been held in joint tenancy, and questions arose as to whether the parties by executing certain instruments severed the joint tenancy and held the relevant property as tenants in common. An issue arose as to the capacity of the two sisters to understand the transaction. The High Court considered that it was necessary that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing mortgages and a memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one third share which would pass to her estate if she still owned it at her death: Gibbons at 438-439.

An assessment of capacity is fact-specific, both as to time and the nature of the business to be transacted. Capacity can fluctuate over time and also depend upon the nature of assistance available to the person whose capacity is the subject of assessment: Raoul (by his tutor Karamihis) v Hanna [2017] NSWSC 728 at [68] per Lindsay J.

The task-specific nature of the general law’s conception of capacity has the effect that a person could have capacity to perform one task, but lack capacity to perform a different task: Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [175] per Campbell JA (Basten JA and Handley AJA agreeing). It will depend upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Azar v Kathirgamalingan [2012] NSWCA 429 at [168] per Campbell JA (McColl JA agreeing); Rappard v Williams [2013] NSWSC 1279 at [76] per Hallen J.

Thus, where a person has purported to execute multiple documents in one sitting, one ought to be satisfied that the person did not have such soundness of mind as to be capable of understanding the general nature of the task at hand in relation to each document before the conclusion of incapacity to execute that document could be made.

The question of capacity is a legal question rather than a medical question. It is to be determined by commonsense judicial judgment on the basis of the whole of the evidence: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (Zorbas) at [65] per Hodgson JA; The Estate of Milan Zlatevski; Geroska Zlatevski [2020] NSWSC 250 at [87] per Henry J.

The determination is made on the basis of admissible evidence. The type of evidence which may be adduced in capacity cases (whether it be in relation to the validity of a Will or some other instrument) is varied. The types of evidence frequently include:

Strictly speaking, there is no hierarchy of evidence which may be persuasive to a greater or lesser extent in any given case. However, it is not hard to find observations in cases regarding the strength or cogency of certain types of evidence over other types.

For example, eminent judges have made observations (referable to any given case) that the most valuable or compelling evidence is usually given by experienced lay observers (such as, in a probate case, an experienced solicitor who witnessed the Will): Zorbas at [65] per Hodgson JA, [89] per Young JA. Similar comments have been made in relation to evidence from treating general practitioners: e.g. Revie v Druitt [2005] NSWSC 902 at [34] per Windeyer J (contrasting evidence in reports of expert specialist medical practitioners who have never seen the deceased).

Conversely, it has been said that sometimes the least satisfactory evidence is generally that of laypersons who stand to benefit under the Will: see e.g. Gooley v Gooley [2021] NSWSC 56 (Gooley) at [722] per Sackar J.

It is important to bear in mind that comments such as these are generalised comments regarding what may be the broad experience of judges across many cases, but they are not intended to convey that in any given case witnesses are to be judged according to some rigid hierarchy: Knox v Peacock [2024] NSWSC 976 (Knox) at [282] per Hmelnitsky J.

Understanding of the test for testamentary capacity and the approach of the Court to addressing capacity issues has undergone some refinement in recent years. I explained this in Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 at [224]-[226] as follows:

Recently, in a concise summary of the legal principles relevant to the question of capacity to make a Will, Kirk JA (Bell CJ and Griffiths AJA agreeing) stated the following in Lim v Lim [2023] NSWCA 84 at [7]-[9]:

Thus, the task of making of a Will involves decisions about particular dispositions and the wisdom of them from the point of view of the exercise of the testator’s bounty: Szozda v Szozda [2010] NSWSC 804 (Szozda) at [31] per Barrett J (as his Honour then was).

Capacity to make a Will is to be assessed having regard to the particular Will made. While the test of capacity remains the same, the application of that test varies according not only to the Will’s complexity but also having regard to the officiousness or inofficiousness of the Will: Croft v Sanders [2019] NSWCA 303 at [126] per White JA (Bathurst CJ and Gleeson JA agreeing), citing inter alia Bailey v Bailey (1924) 34 CLR 558 at 570-571 per Isaacs J; [1924] HCA 21 and Brown v McEncroe (1890) 11 NSWR Eq 134 at 138 per Owen CJ in Eq.

Further, as is obvious, the law does not insist on an ability to weigh claims in a way that is altogether unaffected by illness, frailty or cognitive impairment: see e.g. Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 295 per Kirby P (as his Honour then was); Knox at [261].

The effect of the appointment of an enduring power of attorney is set out in s 21 of the Powers of Attorney Act 2003 (NSW) (PAA):

Further, s 43 of the PAA states, in respect of powers of attorney generally:

The expression “power of attorney” is not defined in the PAA, but it probably means a formal grant of agency powers: Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; (2008) 13 BPR 25,343 at [205] per Young CJ in Eq (as his Honour then was); Scott v Scott [2012] NSWSC 1541; (2012) 7 ASTLR 299 (Scott) at [176] per Lindsay J.

It has been said that, when considering whether a person is capable of giving a general power of attorney, one would have to be sure not only that they understood that they were authorising someone to look after their affairs but also what sort of things the attorney could do without further reference to them: Ranclaud v Cabban (1988) NSW Conv R 55-385 (Ranclaud) at 57,548 per Young J (as his Honour then was). That approach has subsequently been followed: see e.g. Szozda at [28]-[30]; Scott at [208].

Applying the authorities referred to above in respect of the task-specific nature of capacity under the general law to the creation of a general and enduring power of attorney, Barrett J stated the following in Szozda at [32]-[35]:

When a power of attorney is given specifically to facilitate a particular transaction, the donor is required to determine the wisdom of the transaction from the point of view of his or her interests; an understanding of the transaction to be facilitated is indispensable to an understanding of the power of attorney: Crago v McIntyre [1976] 1 NSWLR 729 at 749-750 per Holland J; Szozda at [31].

One of the documents signed by the deceased was a form of appointment of enduring guardian. Although no relief or expert evidence is sought in respect of that document, it forms part of the background to the actions of the deceased on 14 December 2022 and it is helpful to understand the nature of the task involved.

The appointment of enduring guardians is governed by Pt 2 of the Guardianship Act 1987 (NSW) (Guardianship Act). Section 6E(1) of the Guardianship Act sets out the various functions of enduring guardians, as follows:

The instrument of appointment may limit or exclude the authority it confers in relation to any one or more of those functions: s 6E(2) Guardianship Act. An enduring guardian may, on behalf of the appointor, sign and do all such things as are necessary to give effect to any function of the enduring guardian: s 6F Guardianship Act.

The appointment of an enduring guardian has effect, unless it is revoked or suspended, only during such period(s) of time as the appointor is a person in need of a guardian: s 6A(1) Guardianship Act. A person in need of a guardian is a person who, because of a disability, is totally or partially incapable of managing his or her person: s 3(1) Guardianship Act. In that regard, s 6N of the Guardianship Act provides:

Because an enduring guardian appointment is similarly wide in scope and indefinite in duration to a grant of enduring power of attorney, it has been said that the approach taken in Ranclaud, Szozda and Scott should be applied when considering a person’s capacity in appointing an enduring guardian: NFM [2018] NSWCATGD 14 at [54].

The general nature of the rights of a shareholder was addressed by Campbell J (as his Honour then was) in White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379 at [193]-[200]. Importantly, those rights ordinarily include the right to attend certain meetings of the company and the right to vote at certain company meetings.

In circumstances where a company has one shareholder, the issue of two new shares to others will inevitably result in the existing shareholder losing a majority shareholding. Other than where a special resolution might be required (see s 250MA of the Corporations Act 2001 (Cth) (Corporations Act)), the two new shareholders will together be able to pass ordinary resolutions at a meeting. Unless otherwise provided for in the company’s constitution, that allows the new shareholders to remove a director from office: s 203C(a) Corporations Act.

For a company to which s 198A of the Corporations Act applies (or which has a provision in its constitution similarly expressed), the business of the company is to be managed by or under the direction of the directors and the directors may exercise all the powers of the company (except any powers that the Act or the company’s constitution requires the company to exercise in a general meeting). In the case of a single-director proprietary company, the director can pass a resolution by recording it and signing the record: s 248B(1) Corporations Act. Meanwhile, for a company to which s 248G of the Corporations Act applies (or which has a similar provision in its constitution), a resolution of the directors must be passed by a majority of the votes cast by directors entitled to vote on the resolution. Thus, where two people are appointed as new directors of what was previously a single-director company, the two new directors are effectively able to pass resolutions regarding the management of the company without the original director’s vote. They are also able to sign documents or witness the affixing of the company’s seal (if any) to a document so that the company can be taken to have executed the document: s 127 Corporations Act.

The secretary of a company is responsible for all of the record-keeping within the company such as the maintenance of the registers required by the Corporations Act and preparation and keeping of meeting minutes: Ford, Austin & Ramsay’s Principles of Corporations Law (as at March 2024, LexisNexis) (Ford, Austin & Ramsay) at [13.100]. A secretary is given certain responsibilities under s 188 of the Corporations Act. The secretary is also one of the company’s officers who can sign documents or witness the affixing of the company's seal (if any) to a document under s 127 of the Corporations Act. When a company appoints a secretary, it is taken to be granting authority to make contracts connected with the administrative side of the company’s affairs: Ford, Austin & Ramsay at [13.100.15].

Questions regarding the admissibility of expert opinion, who can be an expert, the role and duty of an expert and the content of an expert’s report are principally addressed by legislation, rules of Court, Practice Notes, codes of conduct and the general law.

Thus, when legal practitioners come to address those questions, their first port of call is essentially to look at the applicable substantive and procedural framework set out by those particular sources.

Expert evidence may be admissible as an exception to the opinion rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: ss 76(1), 79(1) Evidence Act 1995 (NSW) (Evidence Act).

Further, evidence of an opinion is not inadmissible only because it is about an ultimate issue: s 80(a) Evidence Act.

It has been acknowledged that the provisions of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) may from time to time modify the law of evidence by imposing preconditions upon the admissibility of an expert’s report: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [59]-[60] per Campbell JA (Tobias JA at [1] and Handley AJA at [78] agreeing) (addressing prior forms of rr 31.18 and 31.19 of the UCPR).

The origins of the general law prohibition on experts opining on ultimate issues arose according to the policy that the function of the Court should not be usurped by an expert dictating a final finding and risks associated with evidence being received upon any question the answer to which involves the application of a legal standard to assumed or posed facts. Apart from the expert’s understanding of the standard, there is risk that the expert advocates a particular interpretation of the law over another, as well as consequent risks as to the expert not truly fulfilling their duty of impartiality owed to the Court: see Robert McDougall, “Some thoughts on calling expert evidence” [2009] NSWJSchol 18 (McDougall) [2] at [53]-[56], citing inter alia R v Palmer [1981] 1 NSWLR 209 at 214G per Glass JA and Allstate Life Insurance Co v Australia & New Zealand Banking Group (No 6) (1996) 64 FCR 79 at 83 per Lindgren J.

Whether or not the frequency of questions which are posed to retrospective medical experts in probate cases on the ultimate issue (i.e. the capacity of the testator to make the Will) has been engendered by the provisions of s 80 of the Evidence Act need not be debated. In each given case, it is the utility of the expert evidence that will vary. It is often the case that the Court is not assisted by expert evidence on the ultimate issue per se, as distinct from other more discrete issues as to the nature and effect of any medical conditions or medications on the testator or instrument maker’s cognition and other faculties.

Division 2 of Pt 31 of the UCPR provides guidance as to the purpose, role and duties of experts. I note that:

A parties’ single expert is an expert engaged pursuant to r 31.37 of the UCPR: r 31.18 UCPR. Matters relating to the selection and engagement of a parties’ single expert are set out in that rule. The engaging parties, or one of them as they may agree, are to provide the expert with the code of conduct: r 31.23(2) UCPR.

The rules of Court, Practice Note SC EQ 05 and relevant code go a long way to providing legal practitioners with clear guidance regarding matters bearing upon letters of instruction to experts. I note:

One of issues in this application relates to the inclusion of contested facts in the disputed joint letter of instruction.

Identifying what facts or assumptions a retrospective expert is asked to make requires careful thought. There are obvious risks in formulating letters of instruction which include disputed facts. It is a matter for the Court as to what disputed facts are found. That is especially so where credibility is a key issue. It is beyond the task of an expert to comment on or give evidence about the credibility or truthfulness of another witness, or to make assumptions about those matters accordingly: McDougall at [59], citing Jango v Northern Territory of Australia (No 4) [2004] FCA 1539; (2004) 214 ALR 608 (Jango (No 4)) at [38] per Sackville J. It is of course a different matter if there is expert evidence addressing the existence or possible existence of a disorder or disability affecting the capacity of a witness to give reliable and truthful evidence: e.g. Jango (No 4) at [38], citing Farrell v R (1998) 194 CLR 286 at [12] per Gaudron J, [29] per Kirby J and [93] per Callinan J; [1998] HCA 50.

There are also risks which arise from providing experts with large amounts of untested medical records and other relevant documents.

The preparation of a joint letter of instruction and the provision of relevant material to an expert should be carried out by practitioners in a way that facilitates the just, quick and cheap resolution of the real issues in the proceedings. Practitioners may be presented with a challenge when there is a mass of medical records that have been produced. Should most, if not all, of the subpoenaed material simply be provided, or should the practitioners spend time (potentially hours) sifting through the subpoenaed material in an attempt to work out what is actually relevant for the expert?

Often, pragmatically, and to avoid the risk of the expert opining on insufficient records, medical or otherwise (e.g. Gooley at [1148]), the former course is taken. However, there are some risks attendant upon that course, including the expert being swamped with irrelevant materials, particularly if the expert has limited time to address the questions posed. There may be occasions in which the guidance of the Court should be sought regarding what primary or other materials are briefed.

Further, sometimes the wording in medical notes is disputed as to what has in fact been recorded (e.g. if handwriting is barely legible), or its meaning or source. Thus, if an expert is provided with a set of medical records (large or small), it will be important for the expert to identify the facts or assumptions in that body of material relied upon to form any opinion: r 31.27(1)(b), cl 3(d) Sch 7 UCPR.

Quite often in testamentary capacity cases, parties seek to brief an appropriate medical expert, whether it be a neuropsychologist, neurologist, geriatrician, psychiatrist or other expert, to provide what is known as a type of “retrospective” opinion regarding capacity. The term “retrospective” in this sense identifies an expert who has not assessed or observed the testator or instrument maker at the time that the instrument was executed, but rather is asked to review various medical and other contemporaneous materials and provide an opinion on capacity: see e.g. Hayley Bennett and Alisa Green, “Guidance for Treating Doctor Experts” (2021) (Summer) Bar News 34.

In essence, the expert, who has never met the deceased, is asked to provide opinions based on a process of reverse extrapolation from medical records (or other documents) regarding capacity: see e.g. Wild v Meduri [2024] NSWCA 230 at [214] per Bell CJ, [281] per White JA and [333] per Kirk JA.

Such expert witnesses may be particularly convincing witnesses who give appropriate concessions, are frank in their answers, clearly intend to assist the Court and might be described essentially as exemplary expert witnesses. Nonetheless, for various reasons (such as being briefed with incomplete available medical records) they may give evidence which the judge finds to be of limited value in the case: e.g. Anderson v Yongpairojwong [2023] NSWSC 1359 at [160]-[161] per Griffiths AJ; Anderson v Yongpairojwong [2024] NSWCA 220 at [138]-[159] per Bell CJ, [180] per Leeming JA and [186] per Mitchelmore JA.

Part of the difficulty with some letters of instruction and questions for an expert is that the parties (whether they have briefed separate experts or have engaged a single parties’ expert) are too ambitious with what they seek to prove from such an expert. In this respect, some legal practitioners appear to be guided by what is permissible in terms of expert opinion on ultimate issues, rather than what is useful to the Court in terms of the expert’s area of expertise.

It is unwise to be dogmatic as to what use may be made of expert evidence. The usefulness of such evidence has been highlighted sometimes positively and at other times less so.

In Gooley, Sackar J stated at [1147]:

In other cases, as I have noted earlier in these reasons, the usefulness of certain retrospective capacity expert evidence has been doubted.

Whilst all disputed aspects of capacity to make a Will must be appropriately determined in testamentary capacity cases, in many such cases the issue which becomes the critical forensic “battleground” is the Willmaker’s ability to comprehend and appreciate or assess the claims to which he or she ought to give effect to.

Expert evidence regarding cognition is often useful to some degree on that issue, as it is the Willmaker’s executive function that impacts the ability to consider their bounty and make decisions rationally about how their estate should be distributed between potential beneficiaries: e.g. Gooley at [1145]. Indeed, it has been observed that executive function “underlies cognitive processes such as reasoning; abstraction; comportment, including judgement, insight, self-awareness, social adaptation and social appropriateness (sometimes referred to as social cognition); mental flexibility; set shifting (changing from one task to another); hypothesis testing; and planning and sequencing”: Gooley at [1145].

In the case of a treating medical practitioner (specialist or general), the evidence to be given by such practitioner might in any given case be lay or expert evidence or both. Useful evidence in such a case usually takes the form of a “description of contemporaneous observations, the medical or other conditions from which the deceased was suffering, and how those medical, or mental, conditions, affected, if at all, the deceased’s cognitive abilities”: Mulroe v Mulroe [2022] NSWSC 1459 (Mulroe) at [102] per Hallen J. As his Honour elaborated (at [102]):

However, in the case of retrospective capacity expert evidence, the type and extent of expert evidence serve different purposes.

In each case where capacity is in issue, what (if any) expert evidence will be of assistance to the Court will self-evidently depend various matters, including the nature of the capacity dispute, the nature of the other available evidence and any other real issues in dispute. The framing of the questions to an expert will be bespoke in that sense. However, in many cases, without in any way intending to be prescriptive, often the valuable assistance that can be provided to a Court in a capacity case, whether it simply relates to a dispute about a testamentary instrument or extends to dispute about other instruments executed by the person, is threefold:

Difficulty sometimes arises where the expert goes beyond the appropriate area of expertise and comments on the perceived reasonableness or rationality of a decision, rather than whether the testator or other instrument maker was compromised by a medical condition or medication in undertaking the relevant task: e.g. Knox at [258].

In relation to the questions proposed to be asked of the expert, I have refined the content of the first, third and fourth questions and propose to delete the second and fifth questions. In respect of the second question, I do not consider that it adds anything useful to the first question and risks confusion with the separate ground for impugning a Will based upon knowledge and approval (which the Plaintiff does not claim). In respect of the fifth question, I would need to be convinced of the utility of the geriatrician and physician, Dr Rosenfeld, being asked to opine on an issue of undue influence in the absence of any clarity regarding the so-called facts said to constitute the influence. I remain unpersuaded that the Court would be assisted by such opinion being expressed on that issue.

In relation to the background details, I propose to substantially adopt the strikethrough version proposed by the Defendant. The matters which are struck through are the subject of dispute and are said by Mr Darvall to be selective. There are risks in the expert being asked to opine on disputed material, as I have noted above. In any event, I do not propose to engage in a quasi-hearing of the reasonableness of the disputed facts being the subject of background to the expert. If the Plaintiff ultimately considers that particular facts are relevant to the expert’s opinion, the Plaintiff will have an opportunity to ventilate that on the hearing of the matter.

In relation to the description of what is required for capacity to execute the 2022 Will and other contested documents, neither of the disputed letters of instruction adequately addressed the different tasks faced by the deceased and the different natures of the separate documents.

I reject the submission of Mr Darvall that no detail in respect of any of the tasks should be set out. On the other hand, I reject the submission of Mr Evans that the description of the task of a Willmaker needs to be set out by reference to citation from legal authority and that the nature of the capacity required for the execution of the three other (different) contested documents can described in generalised terms without differentiation.

A letter of instruction to an expert ought to be nuanced to reflect what is required by capacity to understand the nature of the matters sought to be effected by each different instrument. That nuance can be achieved in various ways. On the facts here, I consider that any necessary description of the relevant task can be built into the separate questions to be answered.

I determine pursuant to r 31.38(2) of the UCPR that the form of the joint letter of instruction to Dr Rosenfeld be in the form as set out in the Schedule to this judgment.

The orders of the Court are as follows: