The Estate of Genevieve Bryan

By notice of motion filed on 4 March 2021, the Plaintiff, Elias Chakty, who is a nephew of the deceased, seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), r 31.19 and r 31.44, granting him leave to adduce expert evidence from Dr Jonathan Phillips AM, a Consultant Psychiatrist, in Probate proceedings involving a dispute about the validity of the last Will of Genevieve Bryan (the deceased).

Whilst these reasons are more lengthy, perhaps, than one would expect in an interlocutory application such as this one, there is an important issue surrounding the circumstances in which the Court should grant leave to a party to adduce evidence of any other expert (Dr Phillips) on any issue arising in proceedings, after a joint expert (Professor Carmelle Peisah), agreed upon by the parties, has been appointed pursuant to orders of the Court, particularly in Probate proceedings. There is an existing tension between the role of the joint expert witness, appointed by agreement of the parties and then by the Court, and each party’s desire to fully present his case as he sees fit.

What is important to note, at the outset, about both experts, is that neither met the deceased during her lifetime. As often happens in this kind of litigation, neither had examined the deceased in life, and were obliged to express views based on documents provided to them, including affidavits and the medical records.

At the commencement of the proceedings, I asked counsel for the parties whether it might be necessary to make any orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) in the event that the application made in the notice of motion did not succeed. Neither counsel had considered the question and it was necessary to adjourn the hearing, for a short period of time, to enable them both to do so.

Following that short adjournment, both counsel agreed that if the notice of motion were dismissed, some orders under the Court Suppression and Non-publication Orders Act should be made. (Naturally, no suppression order or non-publication order would be necessary if the notice of motion were successful, since the evidence would be permitted to be adduced at the final hearing.)

Counsel for the Defendant offered to prepare a draft minute of order on which the parties were likely to agree. Following the conclusion of the hearing, the parties provided a form of order consented to (in respect of which I have made some minor editorial amendments):

The legal representatives of the parties were informed that whether such, or similar, orders would be made would be determined by the result of the notice of motion.

It is to be remembered that s 6 of the Court Suppression and Non-publication Orders Act provides that “[I]n deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”; that s 7 permits the Court to make a non-publication order, on the grounds permitted by the Act, which prohibits the publication, or disclosure, of information, relevantly, information that comprises evidence given in proceedings before the Court; that s 8 provides the grounds on which such an order can be made, sub-s (1)(a) providing that the Court may make a suppression order or non-publication order where the order is necessary to prevent prejudice to the proper administration of justice and sub-s (1)(e), alternatively, providing that such an order may be made where it is otherwise necessary in the public interest, and that public interest significantly outweighs the public interest in open justice; that s 9 specifies that a court may make a suppression order or non-publication order on its own initiative, or on the application of a party to the proceedings concerned; and that s 12 deals with the duration of the order that is to be made.

Furthermore, an order may be made during the proceedings or after they have concluded and may be made subject to such exceptions and conditions as the Court thinks fit and specifies in the order. Importantly, the order must also specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.

Since the notice of motion is to be dismissed, an order is necessary. In particular, I am satisfied that the administration of justice would be prejudiced by reference to the contents of the evidence that is the subject of the Plaintiff’s application in circumstances where the Court has determined that he should not be granted leave to adduce the evidence of another expert on any issue arising in proceedings since the parties' joint expert has been engaged in relation to that issue.

To refer to the contents of the report, the subject of the application, other than in the most general terms, would result in that evidence being disclosed, at a final hearing, in circumstances where it ought not to be disclosed. The evidence is to be temporarily confidential until the completion of the hearing of the substantive proceedings or until further order of the Court. Thereafter, it would not be confidential, by reason of the determination of the issues in the case.

In the circumstances, it seems to me that the proper form of order is an order that applies until the conclusion of the hearing of the substantive proceedings and the publication of the reasons for judgment, or until further order of the Court. I have, effectively, followed the form of orders that was agreed between the legal representatives of the parties.

The deceased died on 13 November 2019, aged 93 years. She was not survived by any spouse or any children.

So far as is known, the deceased left four duly executed, professionally drawn Wills. The last Will in time was made on 31 October 2019 (the 2019 Will). It is the Will propounded by the Plaintiff. The second last Will in time is one dated 23 December 2014 (the 2014 Will) which is propounded by the Defendant. The third last Will in time of the deceased is one dated 6 May 2009 (the 2009 Will). The earliest Will in time is dated 7 June 2005 (the 2005 Will). I shall refer to each as a Will of the deceased even though there is a dispute about the validity of the 2019 Will. Neither party seeks to propound the 2009 Will nor the 2005 Will.

The Plaintiff commenced the substantive proceedings by Statement of Claim filed on 14 February 2020, in which he sought an order that Probate in solemn form of the 2019 Will be granted to him and an order for costs. In an amended Defence filed on 27 April 2020, the Defendant denied the validity of the 2019 Will, asserting that the deceased (a) “was induced to execute [the 2019 Will] by undue pressure or influence on the part of… the Plaintiff”; (b) “was not of sound mind memory and understanding at the time of the making of [the 2019 Will]”; and (c) “did not know and approve of the contents of [the 2019 Will] at the time it was made”.

The Defendant, who is said to have been the carer of the deceased, filed an amended Cross-Claim on 27 April 2020 in which he sought an order that Probate in solemn form of the 2014 Will be granted to him; an order for his costs; an order that the matter be remitted to the Senior Deputy Registrar to complete the grant; and, in the alternative, an order for further provision out of the estate of the deceased pursuant to Chapter 3 of the Succession Act 2006 (NSW), if he was not successful in obtaining probate of the 2014 Will.

It is unnecessary to say anything more about his claim for a family provision order for the purposes of determining the Plaintiff’s notice of motion.

It is also unnecessary to detail the terms of each of the 2019 Will and the 2014 Will for the purpose of the notice of motion. However, it is to be noted that the estimated gross value of the deceased’s estate is in excess of $3.5 million. The main assets of the estate are two parcels of real estate in Hurlstone Park and cash in bank.

It is next convenient to detail the history of the proceedings that led to the filing of the Plaintiff’s notice of motion. There is no substantial disagreement, between the parties, about the procedural history set out.

On 10 August 2020, the matter was listed for directions in the Succession List. On that date, I made the following orders and notations:

There was some delay occasioned in complying with the order made. The matter was listed for directions on a number of occasions, and it was only on 30 November 2020 that the following orders and directions were made, at the request of the parties, in Chambers:

Interestingly, in the discussions between the legal representatives giving rise to her appointment, it was the Plaintiff’s legal representative who had nominated Professor Peisah, an Old Age and Consultation-Liaison Psychiatrist, as one of the joint experts who might be appointed. This demonstrates that the basis of the current application is not any concern as to her independence.

The Defendant had suggested, and had indicated a preference for, the appointment of a geriatrician. However, ultimately, he acceded to the joint expert nominated by the Plaintiff. Thereafter, the legal representatives collaborated in the preparation of the letter of instructions, and in the selection of the material that was to be put before Professor Peisah.

There was no dispute, at the hearing of the notice of motion, that Professor Peisah had been engaged in relation to the issues agreed upon under Part 31 Division 2, Subdivision 4 of the UCPR.

Following the making of the orders, there was no application made to set them aside.

On 15 February 2021, the matter was next in the Succession List and the Court was informed that the Plaintiff, having received a copy of the joint expert’s report, wished to engage another expert, being Dr Phillips AM. As the Defendant was not prepared to consent to that appointment, directions were made for the filing of a notice of motion by 4:00 p.m. on 4 March 2021.

The evidence reveals that by 15 February 2021, the Plaintiff’s solicitor, Mr Musabbir Hasan, had already retained Dr Phillips and had given him a brief to provide a report. In cross-examination on the notice of motion, Mr Hasan stated that, initially, he had approached Dr Phillips, on about 18 August 2020, for the purpose of ascertaining his availability to provide a report, as a joint expert, for the proceedings: Tcpt, 12 May 2021, p 9(42)-10(10). However, Dr Phillips did not confirm his availability, or accept any engagement, at that time: Tcpt, 12 May 2021, p 12(20-26).

Mr Hasan also confirmed that, on 2 February 2021, he had sent a letter to Dr Phillips requesting an expert opinion “on whether the deceased lacked testamentary capacity” and that, by the end of the first week of February, Dr Phillips had been sent the brief and had confirmed that he would begin preparing his report immediately: Tcpt, 12 May 2021, p 11(20)-12(03).

Mr Hasan accepted that, in a written Request for Expert Evidence Directions, which he had submitted to the Court on 11 February 2021, and also at the directions hearing on 15 February 2021, the Court had not been informed that Dr Phillips had already been retained and was in the course of preparing a report: Tcpt, 12 May 2021, p 16(29)-17(21).

There was no dispute that the documents reviewed by Dr Phillips to enable him to prepare his report were the same as those provided to Professor Peisah.

The Plaintiff’s notice of motion was filed in accordance with the directions of the Court.

In an affidavit affirmed 4 March 2021, Mr Hasan, in paragraphs 5 and 6, stated:

Although not specifically disclosed in Mr Hasan’s affidavit, it appears that Dr Phillips’ report responded to “your letters of instructions (2 and 24 February 2021) and note[d] that you have provided multiple documents…”. The report of Dr Phillips, sought to be relied upon by the Plaintiff, a copy of which report formed part of the evidence in support of the notice of motion, was dated 25 February 2021.

It is difficult to know whether the report from Dr Phillips was obtained, initially, for the purpose of its tender, or whether it was obtained for the purpose of asking Professor Peisah for clarification, or to enable cross-examination of the joint expert at the hearing. In any event, it is now clear, from the notice of motion, that the Plaintiff wishes to adduce evidence, by tendering the report of Dr Phillips at the hearing and to have him available as a witness in the proceedings.

On 26 March, 2021, when the matter was next in the Succession List, it was noted that the Plaintiff, as a condition of being able to adduce the expert evidence of Dr Phillips, consented to bearing the burden of any additional costs incurred by himself and by the Defendant in relying upon the evidence of Dr Phillips, subject to either party making such application as is necessary in respect of those costs at the conclusion of the hearing.

The notice of motion, which was filed on 4 March 2021, was listed for hearing on 12 May 2021, with an estimated duration of three hours. The hearing, in fact, took most of the day.

It is not appropriate, in these reasons, to identify the differences between the reports of the two experts. However, I have considered the differences between the conclusions reached by them.

It is first convenient to set out the parts of the UCPR that are relevant to the notice of motion.

Division 2 of Part 31 of the UCPR deals with expert evidence generally. Within Part 31, there are different types of experts to which reference is made.

UCPR r 31.17 provides that the main purposes of Division 2 are, first, to ensure the Court has control over the giving of expert evidence; secondly, to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings; thirdly, to avoid unnecessary costs associated with parties retaining different experts; fourthly, if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a joint expert; and fifthly, if necessary to do so to ensure a fair trial of the proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings.

Relevantly, UCPR r 31.18 contains certain definitions:

UCPR r 31.19(1) provides that any party (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the Court in that regard.

UCPR r 31.20 provides that without limiting its other powers to give directions, the Court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings, including, amongst other directions, “(a) a direction as to the time for service of experts' reports” and “(f) providing for the engagement and instruction of a parties' joint expert in relation to a specified issue”.

UCPR r 31.23(1) requires an "expert witness" to comply with the code of conduct set out in Schedule 7. Pursuant to the code of conduct, the expert is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings, or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness: UCPR Schedule 7 cl 2. In other words, the real purpose for the calling of an expert is to provide assistance to the Court in the application of her, or his, expertise, not to advocate for either party.

UCPR r 31.37 provides that if an issue for an expert arises in any proceedings, the Court may, at any stage of the proceedings, order that an expert be engaged jointly by the parties affected. The parties' joint expert is to be selected by agreement between the parties affected, or, failing agreement, by, or in accordance with, the directions of the Court.

UCPR r 31.41(1) provides that, within 14 days after the parties' joint expert's report is sent to the parties affected, and before the report is tendered in evidence, a party affected may, by notice in writing sent to the expert, seek clarification of any aspect of the report. No such notice was sent to Professor Peisah and there are no reasons provided for not seeking such clarification.

UCPR r 31.43 provides that any party affected may cross-examine a joint expert, and the expert must attend Court for examination or cross-examination, if so requested, on reasonable notice by a party affected.

Pausing here, I interpolate that it is the parties who select the joint expert. The Court becomes involved only if a problem emerges regarding agreement on the identity of the suitable expert, or if the parties are unable to agree upon the instructions to be given to the expert, or upon the documents to be provided, or the matters upon which the expert is asked to opine. The expert’s report is to be provided to each of the parties and each may ask written questions in order to clarify the matters in the report if that is necessary. Furthermore, what the parties do with the joint expert’s report is left to each of them. Neither is under any obligation to tender the report. Under this regime, the expert is not the Court’s witness. The expert is the witness of the parties.

What is sometimes forgotten is that the appointment of a joint expert who then provides a report, does not involve a delegation of decision-making power. As already stated, as parties affected, either may cross-examine the joint expert orally. Each may make submissions about the weight of her, or his, evidence and also about its relevance to the ultimate result.

UCPR r 31.44 provides that, except by leave of the Court, a party to proceedings may not adduce evidence of any other expert on any issue arising in proceedings if a parties' joint expert has been engaged under this Division in relation to that issue.

The power to grant leave makes clear that the appointment of a joint expert does not prevent a party being allowed to obtain a report from another expert. There is nothing in UCPR r 31.44 that reveals what matters the Court should consider in determining an application for leave to a party to adduce evidence of any other expert on any issue arising in proceedings. Clearly, a degree of flexibility is required and the Court’s discretion in relation to the grant of leave is unfettered. The application of broad principles to very specific factual circumstances should not detract from the breadth of the Court's discretion.

In Tomko v Tomko [2007] NSWSC 1486, Brereton J considered some of the rules referred to above. His Honour pointed out, at [5]:

As to the principles that apply for granting leave, his Honour wrote, at [8] – [9]:

In Stolfa v Owners Strata Plan 4366 (No 2) [2008] NSWSC 531, Brereton J referred to Tomko v Tomko. His Honour did so again in In the matter of Optimisation Australia Pty Ltd [2015] NSWSC 2072, at [6].

In Wu v Statewide Developments Pty Ltd [2009] NSWSC 587, Brereton J identified three guidelines relating to the exercise of the discretion whether to grant leave under UCPR r 31.44. His Honour wrote, at [11] – [17]:

In Postiglione v The Queen (1997) 189 CLR 295 at 323; [1997] HCA 26, Gummow J stated:

In Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Gibbs CJ, with whom Wilson J agreed, at 610, stated that a situation resulting in a justifiable sense of grievance is one that “give[s] the appearance that justice has not been done".

In Wu v Statewide Development Pty Ltd, at [20], Brereton J determined that a legitimate sense of grievance arose in a situation where the “central issues were, in effect, decided by a single expert, when there was evidence that a competing expert view [was] likely to be available”.

In Coyne v Calabro [2009] NSWSC 1023, White J dealt with a similar issue and referred to Wu v Statewide Developments Pty Ltd. At [12], his Honour accepted the guidelines referred to in that case.

In Conias Hotels Pty Ltd v Murphy [2012] QSC 297, at [14]-[16], Applegarth J noted that situations in which a legitimate sense of grievance may arise include where:

However, at [9], Applegarth J wrote:

I respectfully agree with the guidelines suggested by Brereton J as being relevant to the determination of the question whether leave should be granted. However, I am also of the view that the main purposes of Division 2 of Part 31, which relates to expert evidence, as detailed in UCPR r 31.17, provide additional matters for consideration by the Court on that question. The Court should be mindful of those purposes.

With the utmost respect, I part company with Brereton J in respect of his view that the Court “… should be relatively ready to grant leave to adduce evidence from a separate expert …”. Whether to grant leave will be fact sensitive. It may be distracting to suggest that the Court should be more ready, or for that matter, less ready, to grant leave.

It is naturally with considerable hesitation that I find myself also in disagreement with the proposition that the existence of a competing expert opinion will, necessarily, be “significant”. An application for leave to adduce evidence in the circumstances is unlikely to be made unless there is a competing and differing expert opinion. The existence thereof, in my view, should simply be one of the factors that the Court may consider in determining whether to grant leave. In any event, the significance of the competing and differing opinion may not be able to be determined on the application for leave other than upon the question whether it goes to an issue of critical importance for the trial judge's decision in the case. Then, the question will turn on the interests of justice.

It is not possible to provide a bright line boundary between cases in which the existence of a competing expert opinion will, necessarily, be “significant” and cases where it will not. The nature of the issue for expert evidence whilst not determinative, will certainly be relevant.

Again, as stated by Applegarth J in Conias Hotels Pty Ltd v Murphy & Anor at [5]:

Biscoe J in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282, at [33], noted:

Further, as was put by Pain J in Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 70, at [16], “if the Court does too readily establish a practice of allowing in new expert evidence when there is a parties' single expert then the adoption of single experts will be undermined”.

The Court should also be aware of “expert shopping” and the possibility that an applicant is seeking another expert’s evidence simply because the single expert has come to a conclusion that does not assist his, her, or its, case. (The Defendant raised the possibility of expert shopping in written submissions.)

For example, in D v S [2009] QSC 446, Wilson J wrote at [8]:

As stated, other factors that should be considered in determining whether to grant leave includes s 56 of the Civil Procedure Act 2005 (NSW) and the obligation of the Court to give effect to the overriding purpose, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, when it exercises any power given to it by this Act or by rules of court. The Court should also have regard to the important set of principles which underlie case management and the need for expeditious resolution of disputes. Time and again, the Court has referred to access to justice and its obligation to ensure that public resources are applied in the best way and to ensure the most efficient means possible. In this regard, any delay in making the application or in obtaining any competing expert opinion will be relevant.

However, I acknowledge, as Kirby J noted, albeit in another context, in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27, at 542, that “rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires.”

In summary, then, it may be said that Court will be faced, in determining the question implicit in UCPR r 31.44, with the clear task of balancing the interests of the parties, taking into account not only the overriding objective referred to in s 56 of the Civil Procedure Act, but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost and without undue inconvenience to other parties. All relevant circumstances should be taken into account, and a competing expert opinion is one such circumstance. The Court must have its eye on the overall justice to both parties. It is to that issue the existence of a competing expert opinion might be, principally, relevant.

Doing what I can to put it neutrally, and without disclosing the nature of Dr Phillips’ report, and dealing only with evidence, or lack of evidence, that was available, the Plaintiff submitted that Dr Peisah’s conclusion that certain limbs of a modified Banks v Goodfellow test had not been made out, needed to be tested against a competing opinion. A number of reasons were identified, all of which refer to the documentary evidence. I have carefully considered the submissions of the Plaintiff on this topic.

The Plaintiff contended that, as the main contest in these proceedings will likely be whether the deceased had testamentary capacity at the time she executed the 2019 Will, there was a risk that the evidence of the joint expert may be determinative of the issues of testamentary capacity and leave the Plaintiff with a “legitimate sense of grievance” that he had not been permitted to advance his case at trial. For reasons to which I shall come, I do not accept this submission.

Counsel for the Plaintiff also submitted that consideration should be given to the large value of the estate in these proceedings: Tcpt, 12 May 2021, p 26(07-12).

The Defendant, in submissions, pointed to the purpose of appointing a single expert in these proceedings as being “to avoid the time and expense occasioned by contested opposing opinions on questions of expertise”: Wu v Statewide Developments Pty Ltd, at [16].

The Defendant also submitted that the Plaintiff’s actions, in retaining Dr Phillips, have rendered futile the Court’s directions made on 15 February 2021, which were directed to the question of whether leave should be granted for the appointment of Dr Phillips, not its approval after the event.

The Defendant pointed to the fact that Dr Phillips’ report is dated 25 February 2021, only one day after one of the letters of instruction, and that it is improbable, given the nature of the report that was prepared, that it was done in the course of one day’s work. The Court should, therefore, infer that it was likely to have been under way before the Court was informed of the Plaintiff’s decision to engage Dr Phillips and that the conclusion that was open to be drawn was that the course adopted by the Plaintiff was an attempt to force the Court’s hand in the matter of whether or not leave should be granted.

It was submitted that the appropriate course in seeking leave would have been to put before the Court the matters on which it was proposed to seek Dr Phillips’ opinion, and any preliminary views by Dr Phillips in divergence from Dr Peisah’s opinion.

According to the Defendant, the Plaintiff, now, is simply dissatisfied with the conclusion reached by the joint expert and is casting about for another opinion that is favourable to his case.

The Defendant submitted that the Court should not lightly depart from the view that only one expert be appointed, for the following reasons:

The Defendant further submitted that Dr Peisah’s carefully considered, and referenced, view, does not result in a “legitimate sense of grievance” on the Plaintiff’s part. An expert’s opinion will necessarily favour one party’s position over another’s and this is not ‘prejudice’ in the forensic sense, but rather the result of facts and fate.

The Defendant referred to the case of Ainsworth v Burden [2005] NSWCA 174, in which Hunt AJA, at [99], made a distinction between prejudice in the real sense, for example, prejudice stemming from one party’s having been taken by surprise in the litigation (and procedurally disadvantaged), about which a complaint may legitimately be made, and, on the other hand, prejudice arising out of evidence having the potential to deleteriously affect the outcome of one party’s case. The Defendant submitted that the latter species of prejudice is not “prejudicial” in the relevant sense and that is the case in these proceedings.

Counsel for the Defendant pointed to the following grievance which he submitted the Defendant would face if leave were granted to admit Dr Phillips’ report (Tcpt, 12 May 2021, p 40(01-36):

(There was no evidence that the Plaintiff would not be able to satisfy any costs order that was made if leave were granted and costs were increased (as they undoubtedly will).)

It must be remembered that the substantive proceedings are probate proceedings.

Almost 100 years ago, in Bailey v Bailey (1924) 34 CLR 558 at 572; [1924] HCA 21, Isaacs J set out what he described as “working propositions”, which included (1) that opinions of witnesses as to testamentary capacity are “usually for various reasons of little weight on the direct issue”; and (2) that, while such opinions are not without some weight, “the Court must judge from the facts they state and not from their opinions”.

In any event, it is well-established that evidence of a treating doctor, or an expert, who had the opportunity to treat, or assess, the will-maker is preferable to evidence of an expert whose assessment of the deceased is ex post facto. In Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, wrote, at [60]:

In Nicholson v Knaggs [2009] VSC 64, Vickery J wrote, at [39] – [41]:

In Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, the Court of Appeal wrote, at [65] and at [89]:

In Frizzo v Frizzo [2011] QSC 107, where a doctor (Dr Byrne) was appointed as a joint medical expert in relation to the question of whether the testatrix had testamentary capacity at the time she made the 2006 Will, P Lyons J granted leave pursuant to the equivalent rule in Queensland, over the opposition of the defendants, for the plaintiffs to rely on the expert evidence of another expert (Dr Hecker), who had reached a different conclusion to Dr Byrne. At the final hearing, Applegarth J, at [31], noted that the issue of testamentary capacity was not one decided by expert witnesses, even by expert witnesses of the standing of Dr Byrne and Dr Hecker. They had not had the opportunity to observe the will-maker and assess her testamentary capacity on 28 January 2006.

In Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [133], the Court (comprising Gleeson, Leeming and Simpson JJA) noted that the trial Judge had “discounted the evidence of both experts on the basis that they had never met [the deceased]. Contrary to some of the submissions advanced by [the appellant, cross-respondent], there is no difficulty with his Honour having done so”.

In The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, Henry J noted, at [87], that “The question of capacity is a legal rather than a medical question, which is to be determined by ‘commonsense judicial judgment on the basis of the whole of the evidence’”.

Ultimately, whilst the Court may be assisted in its assessment by medical experts, the question of testamentary capacity is a question of fact for the trial judge, and lay evidence may equally be relevant: Croft v Sanders [2019] NSWCA 303, at [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing).

These authorities demonstrate that the evidence of Professor Peisah, and if leave were granted, of Dr Phillips, would only be part of the evidence to be considered, and that, in any event, the evidence of each may be discounted as she, and he, had not seen the deceased at the time the 2019 Will was made.

Importantly, yet surprisingly, counsel for each party accepted that consideration has not yet been given to obtaining the evidence of any treating doctor: Tcpt, 12 May 2021, p 46(27-33).

A significant issue in the case will be, of course, whether the deceased retained testamentary capacity at the time she executed the 2019 Will. However, that is not the issue upon which any expert should provide an opinion.

As I have recently reiterated in Starr v Miller; Starr v Miller [2021] NSWSC 426, at [457] – [458]:

I also wrote, at [462]:

Thus, the question whether the deceased had testamentary capacity is answered by the trial Judge.

The questions which Professor Peisah has considered, principally, relate to the medical conditions from which the deceased is said to have suffered. She identified two conditions, which she described as “disorders of mind, namely (i) neurodegenerative vascular brain disease; and (ii) delirium secondary to her medical state”. She opined that there was, “possibly”, “a third disorder of the mind, namely cerebral metastases”. Undoubtedly, she can be challenged on her conclusions that the deceased suffered from each of these conditions.

I have carefully considered the evidence relied upon in support of the notice of motion as well as the principles that apply in respect of the notice of motion. The following matters seem to me to be particularly important in exercising the Court’s discretion:

Ultimately, and considering all of the evidence, I have asked myself, amongst other things, whether, if the Plaintiff is not granted leave to rely upon the report of Dr Phillips, and he loses the case, will he have a legitimate sense of grievance judged objectively? The assessment of the legitimacy of a sense of grievance for the purposes of determining whether to permit the Plaintiff to adduce the evidence of Dr Phillips should be conducted on objective grounds. A sense of grievance which arises merely as a result of “the nature of litigation” will not be considered legitimate: Cosgrove v Pattison [2001] CP Rep 68; [2000] All ER (D) 2007.

The evidence from one, or perhaps, two experts, each of whom never met the deceased, whilst relevant, is not the only evidence that will determine the issues to be determined. Even at this stage, one could comfortably conclude, that, on its own, the opinion of one, or other, such expert will not carry the day. It will really be a matter for analysis by the Court on the basis of the evidence as a whole rather than for one, or even, two, experts to opine upon guided by all of the evidence.

As has been repeated, in a probate suit, the vital evidence, very often, is not given by medical experts who never saw the deceased but is given by treating medical practitioners and experienced lay observers. Often, in deciding a probate case, valuable evidence is given by the solicitor who took instructions for, and often, who witnessed the disputed Will, as well as other lay witnesses who observed the deceased. A very highly qualified geriatrician or psychiatrist whose evidence is based not on any personal observation of the will-maker, but who has reasoned her, or his, opinion from medical, hospital, and other documents, whilst relevant, is unlikely to be determinative. I am not satisfied that the Court would be assisted by calling another expert witness who did not see the deceased at any time.

The Plaintiff will be able to test the evidence of Professor Peisah, the joint expert, as he is entitled to do, using Dr Phillips’ report if he considers it useful. There is no restriction on cross-examination or questions which will lead to amplification of her report.

Taking into account all of the matters, I am not persuaded that the Plaintiff would suffer a legitimate sense of grievance. No doubt, he would be disappointed, but in circumstances where the trial judge will be required to consider all of the evidence, both lay and medical, and reach a carefully considered conclusion based upon that evidence, such disappointment cannot properly be regarded as a legitimate sense of grievance judged objectively. As stated, the opinion of one, or two, experts, who had not seen the deceased, is unlikely to be determinative of the case.

Finally, the consequence of dismissing the Plaintiff’s notice of motion, in my view, will not be that he will be deprived of making out his case at trial. Indeed, no submission to that effect was made.

Furthermore, and for abundant caution, and in order to alleviate any sense of grievance that the Plaintiff may feel, I shall allow each of the parties the opportunity to clarify any aspects of Professor Peisah’s report that he wishes to. Naturally, at the hearing, he will be able to cross-examine Professor Peisah and put to her all of the matters raised by Dr Phillips that are relevant to her conclusions.

In addition, I shall allow both parties the opportunity to consider whether it is necessary to issue any additional subpoenas to obtain the contemporaneous medical records of any medical practitioner who treated the deceased that have not yet been issued or obtain the evidence of any treating medical practitioner that has not yet been obtained. The production of such evidence may be far more helpful to the Court in determining whether the deceased had, or did not have, testamentary capacity at the time she made the 2019 Will. If further affidavit evidence is required, the parties should seek directions as soon as reasonably possible.

In the circumstances, the Court: