Green v Green

[2024] NSWSC 1442

Supreme Court

New South Wales

Medium Neutral Citation:

Green v Green [2024] NSWSC 1442

Hearing dates:

17, 24 October 2024

Date of orders:

15 November 2024

Decision date:

15 November 2024

Jurisdiction:

Equity – Probate and Family Provision List – Family Provision

Before:

Meek J

Decision:

Parties directed to finalise and provide to expert a joint letter of instruction in a form substantially in accordance with the content of the Schedule to these reasons for judgment.

Catchwords:

SUCCESSION — Contested probate and family provision — Plaintiff (the deceased’s wife) brought separate proceedings seeking (inter alia) revocation of the defendant’s grant of probate in respect of a 2022 Will and further provision out of the deceased’s estate — In probate proceedings, the plaintiff seeks to prove that the 2022 Will and other documents relating to the deceased’s personal and corporate affairs were executed at a time proximate to the deceased’s death when he did not have sufficient mental capacity — Parties agreed to have a parties’ single expert regarding the issue of capacity but could not agree on the terms of the joint letter of instruction — Parties applied to the Court to settle the terms of the joint letter of instruction to the expert, providing their competing versions — Terms of the joint letter of instruction settled in the form provided in the Schedule to the reasons for judgment

SUCCESSION — Contested probate — Capacity — Discussion of the law’s view of capacity as time- and task-specific, as pronounced by the High Court in Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 — Specific discussion of the nature of the task involved in making a Will, appointing an enduring power of attorney and issuing shares and appointing directors/secretaries in respect of a sole director and sole shareholder company

PROBATE — Opinion evidence — Exceptions — Expert opinion — “Retrospective” medical expert —Discussion of purposes and role of expert witnesses, as well as the necessary content in letters of instruction and expert reports — Considered that useful “retrospective” medical expert evidence in probate capacity cases (a) details the medical conditions from which the instrument maker was suffering, (b) details the medications which the instrument maker was taking or being administered and (c) explains how each medical condition and medication (if any) would have affected the instrument maker’s capacity in the sense of impairing or compromising the matters relevant to the task

EVIDENCE — Opinion evidence — Letters of instruction — Where multiple instruments executed — Letter of instruction to expert ought to be nuanced to reflect what capacity is required by the instrument maker in understanding the nature of what he or she is doing or effecting in relation to signing each different instrument

CORPORATIONS — Means by which a company may make decisions — Effect of lodgement of ASIC Form 484 recording change of directorship, secretaryship and issue of shares

CORPORATIONS — Functions of directors and secretary and means of appointment — Nature of such appointments

Legislation Cited:

Corporations Act 2001 (Cth)

Evidence Act1995 (NSW)

Family Provision Act 1982 (NSW)

Guardianship Act 1987 (NSW)

Powers of Attorney Act 2003 (NSW)

Succession Act2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Allstate Life Insurance Co v Australia & New Zealand Banking Group (No 6) (1996) 64 FCR 79

Anderson v Yongpairojwong [2023] NSWSC 1359

Anderson v Yongpairojwong [2024] NSWCA 220

Azar v Kathirgamalingan [2012] NSWCA 429

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Brown v McEncroe (1890) 11 NSWR Eq 134

Crago v McIntyre [1976] 1 NSWLR 729

Croft v Sanders [2019] NSWCA 303

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279

Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502

Farrell v R (1998) 194 CLR 286; [1998] HCA 50

Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17

Gooley v Gooley [2021] NSWSC 56

Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369

Ireland v Retallack [2011] NSWSC 846

Jango v Northern Territory of Australia (No 4) [2004] FCA 1539; (2004) 214 ALR 608

Knox v Peacock [2024] NSWSC 976

Lim v Lim [2023] NSWCA 84

Mulroe v Mulroe [2022] NSWSC 1459

NFM [2018] NSWCATGD 14

R v Palmer [1981] 1 NSWLR 209

Ranclaud v Cabban (1988) NSW Conv R 55-385

Raoul (by his tutor Karamihis) v Hanna [2017] NSWSC 728

Rappard v Williams [2013] NSWSC 1279

Re Griffith; Easter v Griffith (1995) 217 ALR 284

Revie v Druitt [2005] NSWSC 902

Scott v Scott [2012] NSWSC 1541; (2012) 7 ASTLR 299

Szozda v Szozda [2010] NSWSC 804

The Estate of Milan Zlatevski; Geroska Zlatevski [2020] NSWSC 250

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; (2008) 13 BPR 25,343

White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379

Wild v Meduri [2023] NSWSC 113

Wild v Meduri [2024] NSWCA 230

Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

Bennett, Hayley and Alisa Green, “Guidance for Treating Doctor Experts” (2021) (Summer) Bar News 34

Ford, Austin & Ramsay’s Principles of Corporations Law (as at March 2024, LexisNexis)

McDougall, Robert, “Some thoughts on calling expert evidence” [2009] NSWJSchol 18

Category:

Procedural rulings

Parties:

Elsa Green (Plaintiff)
Michael James Green (First Defendant)
Richard J Green Enterprise Pty Ltd (Second Defendant)
Janelle Ann Green (Third Defendant)

Representation:

Counsel:
M B Evans (Plaintiff)
J A Darvall (Defendants)

Solicitors:
Burbank & Brown Lawyers and Conveyancers (Plaintiff)
Kennedy Cook Lawyers (Defendants)

File Number(s):

2023/254802

JUDGMENT

Introduction

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

Background

6. 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.

7. 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.

8. 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).

9. 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.

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

11. Other persons associated with the deceased include:

1. Angela McCarthy (Ms McCarthy) – his accountant;

2. Paul Mattick (Mr Mattick) – his solicitor; and

3. Sam Suri (Dr Suri) – his treating general practitioner.

Estate

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

1. a property at River Road, Sussex Inlet (Sussex Inlet property), with an estimated value of $2 million;

2. two Bendigo Bank accounts (a loan offset account and a retirement account), containing a total of $277,092.39;

3. one fully paid ordinary share in Enterprise, valued at $200,000;

4. four motor vehicles and two motorbikes, worth a total estimate of $227,000;

5. an ocean cruiser with trailer, valued at $70,000;

6. three boats with trailers, worth a total estimate of $9,000; and

7. approximately two hundred collectible model cars, worth a total estimate of $50,000;

Total: $2,833,092.39.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

Wills

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

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

22. 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.

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

1. the Sussex Inlet property, inclusive of all furniture and fittings plus “the Timber runabout at the property”;

2. the Sussex Inlet units, inclusive of all furniture and fittings; and

3. any monies the deceased held in bank accounts.

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

25. 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.

Contested documents

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

1. a Form 484 document lodged with the Australian Securities and Investments Commission (ASIC), notifying ASIC that: the Defendant and Janelle had been appointed directors of Enterprise that day; and a new share in Enterprise had been issued to each of the Defendant and Janelle that day; and

2. a second Form 484 document lodged with ASIC, notifying ASIC that the Defendant had been appointed secretary of Enterprise that day.

27. 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.

28. 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.

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

1. the 2022 Will; and

2. an enduring power of attorney (appointing the Defendant as attorney, with Janelle as substitute attorney).

30. 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.

Associated proceedings

31. 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).

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

33. 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.

These proceedings

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

1. revocation of the grant of probate;

2. a declaration that the 2015 Will constitutes last Will of the deceased;

3. alternatively, a declaration that the Sussex Inlet property is held on a constructive trust and/or a resulting trust for the Plaintiff or alternatively forms part of the notional estate of the deceased; and

4. an order pursuant to s 23 of the Family Provision Act 1982 (NSW) ^[1]  that the three fully paid ordinary shares in the issued capital of Enterprise owned by the Defendant as trustee of the Trust be designated as notional state of the deceased to the extent necessary to satisfy any order for further provision in favour of the Plaintiff.

   1. It is evident that the reference to the Family Provision Act 1982 (NSW) is mistaken as the amendments in Ch 3 of the Succession Act 2006 (NSW) apply to the estate of a person who dies on or after 1 March 2009.

35. 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).

36. The last-mentioned document principally seeks the following relief:

1. a declaration that the deceased lacked capacity to make the 2022 Will and the enduring power of attorney executed on 14 December 2022 and/or those documents were effected through undue influence and/or “undue pressure”;

2. revocation of the grant of probate;

3. a grant of letters of administration with the Will annexed in respect of the 2015 Will in favour of a Gregory Kevin Jex, or such other person as the Court finds should be appointed;

4. an order, upon the grant being made, for transfer of the title to the Sussex Inlet units to the proposed administrator;

5. an order that the enduring power of attorney be set aside and for an account to be given by the Defendant for any dealings as attorney of the deceased and for any dealings with the assets and funds of the deceased’s estate under the grant of probate;

6. an order for restitution in respect of monies taken out of the deceased’s bank accounts, except for monies expended on funeral expenses;

7. a declaration that the Form 484 documents lodged with ASIC in respect of Enterprise are invalid and of no legal effect, or alternatively orders that those documents be set aside;

8. alternatively, a declaration designating the issued shares in Enterprise as notional estate; and

9. removal of Enterprise as the trustee of the Trust and an order that Mr Jex or some other suitable person be appointed as trustee.

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

38. 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”.

39. 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.

The deceased’s health

40. 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.

41. 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.

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

43. 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.

Subpoenas

44. 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.

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

1. Mr Mattick (seeking documents relating to the instructions for the two Wills);

2. Ms McCarthy (seeking production of financial records of the deceased and the Trust and instructions in respect of the Form 484 documents signed by the deceased on 13 December 2022);

3. Bendigo and Adelaide Bank (seeking records in relation to the deceased’s bank accounts);

4. Illawarra Shoalhaven Local Health District (seeking medical records for the deceased relating to his admission to Shoalhaven Hospital and the David Berry Hospital palliative care unit);

5. Dr Suri (seeking the deceased’s medical records);

6. the Commonwealth Bank (seeking records in relation to a number of bank accounts of the deceased and other loan documents and correspondence); and

7. the Defendant and Janelle (seeking documents in relation to the issue of shares in Enterprise to them and financial records in respect of the Sussex Inlet units).

46. 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.

Disputed joint letter of instruction

Attempts at agreement

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

1. directing the parties to use their best endeavours to agree upon a joint expert to provide expert evidence on the question of whether the deceased had testamentary capacity on 14 December 2022;

2. having identified a relevant expert, the parties were then to use their best endeavours to settle a letter of instruction to the chosen expert and to instruct the expert accordingly; and

3. granting leave to the parties to restore the matter on seven days’ notice if agreement on either of the above-mentioned matters could not be reached.

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

1. noting that the parties had been unable to agree upon the terms of a joint letter of instruction to the agreed expert, Dr Tuly Rosenfeld, to provide a report on the questions arising in the proceedings as to the capacity of the deceased;

2. directing the parties to provide to each other a final form of their proposed letter of instruction by 5pm on 7 October 2024; and

3. standing the matter over to 17 October 2024 before the Registrar, for (potential) referral of any dispute over the letter of instruction to the Family Provision List Judge on that day.

49. 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.

Initial hearing

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

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

1. five questions regarding the deceased’s capacity at relevant times on 13 to 14 December 2022 to give instructions for and/or to execute the contested documents, and whether the deceased was, at those times, “susceptible to having his free will overborne by exercise of influence or pressure”;

2. certain details regarding the health of the deceased;

3. background details said to bear upon the relationship between the deceased and the Plaintiff, as well as the relationship between the deceased and the Defendant;

4. comments upon events occurring during the deceased’s admission to Shoalhaven Hospital and David Berry Hospital (including the Defendant's attendance at David Berry Hospital in the presence of Mr Mattick and Ms McCarthy to have the deceased sign the contested documents on 14 December 2022);

5. statements regarding the legal test for testamentary capacity;

6. a summary of medications taken by the deceased on 14 December 2022; and

7. certain details alerting the expert (Dr Rosenfeld) to obligations under the Expert Witness Code of Conduct.

52. 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.

53. 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.

54. 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.

Further hearing

55. 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.

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

57. 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.

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

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

1. “Relevant Parties”;

2. “Issues”;

3. “The Deceased ‘Richard’”;

4. “Background”;

5. “Shoalhaven Hospital”;

6. “David Berry Hospital”;

7. “The legal test for capacity to make a will”;

8. “The legal test for capacity to execute documents other than a will”;

9. “The nature and effect of the will of 14 December 2022”;

10. “The nature and effect of the power of attorney and the company documents executed by Richard Green on 13 or 14 December 2022”;

11. “Summary of Medications”; and

12. “Code of Conduct”.

60. 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.

61. 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.

62. 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.

63. 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:

(i) In your opinion, as at 14 December 2022, was the mental capacity of the deceased so affected or inhibited by his medical condition and/or the medications administered to him that he lacked sufficient capacity to provide instructions for and execute a will in the terms of the Will signed by him on that date?

(ii) In your opinion, as at 14 December 2022, was the mental capacity of the deceased so affected or inhibited by his medical condition and/or the medications administered to him that he lacked sufficient capacity to know and understand the effect of the provisions of a will, being the Will signed by him on 14 December 2022?

(iii) In your opinion, as at 13 or 14 December 2022, was the mental capacity of the deceased so affected or inhibited by his medical condition and/or the medications administered to him that he lacked sufficient capacity to give instructions for and/or to execute an enduring power of attorney in favour of the First Defendant, Michael Green?

(iv) In your opinion, as at 14 December 2022, was the mental capacity of the deceased so affected or inhibited by his medical condition and/or the medications administered to him that he lacked sufficient capacity to give instructions for and/or to execute certain documents in respect of a company, Richard J Green Enterprises Pty Ltd, a company in respect of which he had been, up to that date, the sole shareholder and director, the said documents being:

(a) A Form 484 Notice issuing two further shares in Richard J Green Enterprises Pty Ltd to the First Defendant, Michael Green, and to the Third Defendant, Janelle Green;

(b) A document appointing Michael Green and Janelle Green as directors of Richard J Green Enterprises Pty Ltd.

(v) Was the deceased, as at 13 and 14 December 2022 so affected by his state of health and/or by the medications administered to him that he was susceptible to having his free will overborne by exercise of influence or pressure such that he might change his will and execute the will dated 14 December 2022 and the documents listed in Items (iii) and (iv) above?

64. 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.

65. 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.

Principles regarding capacity

The legal test for capacity

66. 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.

67. 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.

68. 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.

69. 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.

70. 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.

71. 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.

72. 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.

73. 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.

What is involved in determining capacity?

74. 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.

75. 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:

1. documentary evidence;

2. evidence of lay witnesses (as to conversations with, statements by, or observations of the testator or instrument maker);

3. evidence from the solicitor or other professional, if any, who attended upon the testator or instrument maker;

4. evidence from treating medical professionals (whether general practitioners or specialists); and

5. evidence from non-treating experts.

76. 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.

77. 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).

78. 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.

79. 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.

Capacity in respect of the signed documents

Wills

80. 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:

224. A catalyst for the refinement in understanding has, in my estimation, to a great extent been a combination of both probate judgments and extrajudicial writings of Justice Lindsay on the topic of probate law (readily accessible in the “Judicial speeches” section of the “Judgments & other publications” webpage of the Supreme Court website). In particular, in Estate Rofe [2021] NSWSC 257 (Estate Rofe), his Honour discussed the framework for testamentary decision-making at [104]-[137].

225. Leeming JA (with whom Basten JA – as his Honour then was – agreed) in Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 (Mekhail v Hana) at [164]-[172] addressed comments (with which I respectfully agree) regarding the application of the language of testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 (Banks v Goodfellow) at 565 and also in relation to the question of knowledge and approval. His Honour at [168] drew in part upon a paper by Lindsay J namely, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation” (Paper), Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018.

226. It is not necessary to set out in detail the applicable law regarding testamentary capacity. On an interlocutory application such as this, it suffices for me to note that criteria relevant to assessment of testamentary capacity were summarised by Lindsay J in Estate Rofe at [138]-[147]. His Honour indicated (at [140]) that the Banks v Goodfellow criteria provide a logical framework for assessment of testamentary capacity with their identification of the following elements, namely, that a competent testator must:

(1) understand the nature of a Will and its effects;

(2) understand the extent of the property of which he or she is disposing;

(3) be able to comprehend and appreciate or assess the claims to which he or she ought to give effect; and

(4) be free of any medical condition that prevents him or her from having, or duly exercising, those faculties in the making of a Will.

81. 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]:

7. It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6] per Basten JA):

(a) the capacity to understand the nature of the act of making a will and its effects;

(b) the capacity to understand the extent of the property the subject of the will;

(c) the capacity to comprehend moral claims of potential beneficiaries; and

(d) the absence of mental disorders or delusions which affect the testator’s “mental faculties [so as] to make them unequal to the task of disposing of [their] property” (to quote Bailey v Bailey (1924) 34 CLR 558 at 571-572 per Isaacs J).

8. Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana[2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]-[41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one’s property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries.

9. Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA.

82. 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).

83. 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.

84. 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].

Appointment of enduring power of attorney

85. 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):

21 Effect of enduring power of attorney

(1) Subject to this Act, an act done by an attorney that is within the scope of the power conferred by an enduring power of attorney and that is of such a nature that it is beyond the understanding of the principal through mental incapacity at the time of the act is as effective as it would have been had the principal understood the nature of the act at that time.

(2) This section does not save a power of attorney from being or becoming ineffective by reason of any matter other than mental incapacity of the principal arising after the execution of the instrument creating the power.

(3) This section applies only if and to the extent that a contrary intention is not expressed in the instrument creating the power and has effect subject to the terms of the instrument creating the power.

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

43 Attorney may execute instruments and do other things in own name

(1) An attorney under a power of attorney may, in the exercise of the power:

(a) execute any assurance or instrument with the attorney’s own signature and, where sealing is required, with the attorney’s own seal, or

(b) do any other thing in the attorney’s own name.

(2) An assurance or instrument executed, or thing done, in accordance with subsection (1) is as effectual in law as if executed or done by the attorney with the signature and seal or, as the case may be, in the name, of the principal.

87. 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.

88. 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].

89. 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]:

32. It seems to me that different considerations attend a decision to grant a general power of attorney without reference to any foreshadowed transaction and as a means of catering for the possibility that the donor might be unavailable or unable to act at some undefined future time when action is needed. The donor is prescribing no dispositions. He or she has no need to appreciate the extent and nature of moral claims and the extent and nature of the property available to meet them. Because no particular transaction is in contemplation, there is no specific dealing to be assessed as an indispensable concomitant of the giving of the power of attorney. The only matter that can sensibly become the subject of assessment is the creation of the power of attorney itself, for use as and when the need may arise in the future. It is the nature of that act (by which I mean to include its ramifications and consequences) that the donor must sufficiently understand. That, as I apprehend matters, is what is required by what was said by Dixon CJ, Kitto J and Taylor J in Gibbons v Wright (above) at 437-438:

“[T]he mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.”

33. The approach outlined by Hoffmann J in Re K [1988] Ch 310 and approved by the English Court of Appeal in Re W [2001] Ch 609 is, in my opinion, appropriate. Those cases were decided in a particular statutory context but the principle regarding the relevant capacity to understand was not, in my view, affected by that and is of general application. Hoffmann J said (at 313):

“Finally I should say something about what is meant by understanding the nature and effect of the power. What degree of understanding is involved? Plainly one cannot expect that the donor should have been able to pass an examination on the provisions of the 1985 Act. At the other extreme, I do not think that it would be sufficient if he realised only that it gave cousin William power to look after his property. Counsel as amicus curiae helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power: first, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor's affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor's property which he himself could have done; third, that the authority will continue if the donor should be or become mentally incapable; fourth, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court.”

34. The central concept is thus one of complete and lasting delegation to a particular person, albeit with the ability to put an end to the delegation while capacity to do so remains. That concept of empowering another person to act generally in relation to one’s affairs raises two basic questions. First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act – but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done – sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home? Second, is it to my benefit and in my interests that all these things – indeed, everything that I can myself lawfully do – can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?

35. The decision to create a general and enduring power of attorney differs from that involved in the making of a will but must be regarded as of a similar degree of complexity or even greater complexity. I quote, in that connection, a passage from the decision of the Queensland Guardianship and Administrative Tribunal in Re HAA [2007] QGAAT 6 at 34:

“Expert medical opinion provided to (and which appears to have been accepted by) the Court in Adult Guardian (In Re Enduring Power of Attorney of Vera Hagger) v Vera Hagger, Declan James Barry and Albert Craig Ray SC Qld No 1083 of 2001 (Unreported), was that an Enduring Power of Attorney was both more unfamiliar and more complex (for most members of the community) than a will. Accordingly, a higher cognitive ability and therefore standard of capacity would be required for an Enduring Power of Attorney.”

90. 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].

Appointment of enduring guardian

91. 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.

92. 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:

(1) Subject to subsection (2), an instrument appointing a person as an enduring guardian authorises the appointee, while the appointment has effect, to exercise the following functions—

(a) deciding the place (such as a specific nursing home, or the appointor’s own home) in which the appointor is to live,

(b) deciding the health care that the appointor is to receive,

(c) deciding the other kinds of personal services that the appointor is to receive,

(d) giving consent under Part 5 to the carrying out of medical or dental treatment on the appointor,

(e) any other function relating to the appointor’s person that is specified in the instrument.

93. 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.

94. 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:

6N Evidence as to appointor’s capacity

In any proceedings in which the question of whether, on a particular day or during a particular period, the appointor of an enduring guardian was a person in need of a guardian is in issue, the certificate of a medical practitioner to the effect that the appointor was, on that day or during that period, totally or partially incapable of managing his or her person because of a disability is evidence of the fact that the appointor was a person in need of a guardian.

95. 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].

Share issue and appointment of directors and secretary

96. 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.

97. 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.

98. 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.

99. 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].

Expert opinion

100. 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.

101. 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.

Admissibility

102. 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 Act1995 (NSW) (Evidence Act).

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

104. 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).

105. 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.

     2. The article is accessible at

106. 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.

Role and duties of experts

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

1. the main purposes of the Division (which sets out provisions applicable to expert evidence generally) are set out in r 31.17;

2. an expert, in relation to any issue, is defined as being a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence: r 31.18 UCPR;

3. the role and duty of the expert is such that 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, to assist the Court impartially on matters relevant to the area of expertise of the expert: r 31.17(f); cl 2 Sch 7 UCPR; Zorbas at [83] per Young JA; and

4. the expert must comply with the code of conduct set out in Sch 7 of the UCPR: r 31.23(1) UCPR.

Engaging single experts

108. 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.

Letters of instruction

109. 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:

1. an expert’s report is a written statement by an expert that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based: r 31.18 UCPR;

2. the matters to be addressed in the content of the expert’s report are specified in r 31.27(1) of the UCPR and the code of conduct (in particular cl 3 Sch 7 of the UCPR);

3. any relevant qualification in respect of the opinion must be stated in the report and any change of opinion on a material matter must be addressed by means of a supplementary report: r 31.27(2)-(4) UCPR;

4. in respect of a parties’ single expert:

1. the parties affected must endeavour to agree on written instructions to be provided to the parties’ single expert concerning the issues arising for the expert’s opinion and concerning the facts, and assumptions of fact, on which the report is to be based: r 31.38(1) UCPR;

2. if the parties affected cannot so agree, they must seek directions from the Court: r 31.38(2) UCPR; and

3. there is a mechanism for the parties affected to seek clarification of any aspect of the report: r 31.41 UCPR.

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

111. 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.

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

113. 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?

114. 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.

115. 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.

Retrospective capacity experts

Who is a retrospective expert?

116. 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.

117. 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.

118. 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.

119. 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.

What is useful opinion?

120. 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.

121. In Gooley, Sackar J stated at [1147]:

1147. In theory of course courts are not bound by the testimony of witnesses, lay or for that matter expert, even if there has been no cross examination. It goes without saying that testamentary capacity is a matter of fact and degree, but medical science has moved on exponentially since Banks v Goodfellow. The availability of sophisticated technology together with a high level of expertise makes the search for a “connection” between any cognitive impairment and a disposition a good deal easier to identify. This is an area no longer in need of judicial notice but rather that of expert evidence paying due deference to relevant facts. In a case such as this, especially given the way it was conducted, the medical evidence in particular called by the defendant is to be given very considerable weight.

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

123. 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.

124. 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].

125. 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]):

102. … In such cases, by reference to contemporaneous documents, and/or the expert’s recollection of the deceased, there should be clear, and cogent, evidence about the medical, or mental, condition(s) from which the deceased suffered at, or about, the time of giving instructions for, and/or executing, the Will the subject of dispute. How each of those conditions manifested itself in the deceased’s life, such as in respect of activities of daily living, evidenced by lay observations, will also be useful and relevant.

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

127. 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:

1. detailing the medical conditions from which the testator or other instrument maker was suffering at the time that he or she executed the relevant instrument;

2. detailing the medications which the testator or other instrument maker was taking or being administered at the time of the execution of the relevant instrument (or contemporaneous thereto); and

3. explaining how each medical condition and medication (if any) would have affected the testator or instrument maker’s capacity in the sense of impairing or compromising the matters relevant to the task, whether those matters be memory and ability to recall, or the ability to reason and evaluate.

See generally Zorbas at [65] per Hodgson JA (evidence as to medical conditions); Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 at [143]-[144] per Slattery J (effect of medications); Mulroe at [105]; Wild v Meduri [2023] NSWSC 113 at [863], [865], [878(3), (5)] per Hallen J (the extent to which the testator’s cognition was compromised by conditions or medications); see also Knox at [208]-[209].

128. 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].

Decision

129. 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.

130. 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.

131. 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.

132. 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.

133. 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.

Conclusion

134. 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.

135. The orders of the Court are as follows:

1. Direct that the parties finalise and provide to Dr Rosenfeld on or before 22 November 2024 a joint letter of instruction in a form substantially in accordance with the content of the Schedule to these reasons for judgment.

2. Order the costs of and incidental to the application be costs in the cause.

SCHEDULE

[Formal parts including date, address and reference numbers omitted]

Dear Dr Rosenfeld

Supreme Court Proceedings 2023/00254802; 2023/00128988
Elsa Green v Michael Green, the Estate of the Late Richard John Green and others

We confirm that you are instructed jointly by the Plaintiff and the First Defendant in these proceedings to provide an expert opinion by way of report as to the capacity of the deceased, Mr Richard Green, at the time he made a Will and executed certain other documents on 13 and 14 December 2022, being 4 to 5 days prior to his death. We advise as follows:

Solicitor contact details

Plaintiff      [Plaintiff’s solicitors’ contact details]

First Defendant   [First Defendant’s solicitors’ contact details]

In accepting your appointment, you acknowledge that you are under the joint instruction of the Plaintiff and the First Defendant and that all communication and correspondence should be via the offices of the legal representatives for the Plaintiff and the First Defendant.

Questions for opinion

By reference to the medical condition of the deceased and the medications administered to him as shown in the medical records produced by the Illawarra Shoalhaven Local Health District and the David Berry Hospital, please provide your responses the following questions.

1. In your opinion, as at 13 and 14 December 2022, was the deceased suffering from a medical condition (or medical conditions) and/or taking or being administered medication (or medications) which, either individually or cumulatively, impaired or compromised his cognition.

2. If yes, please describe the medical condition(s) and/or medication(s) and the basis of your opinion.

3. If the deceased’s cognition was impaired or compromised as at 13 December 2022:

a. How, if at all, would each of the medical condition(s) and/or medication(s) have impaired or compromised the deceased’s cognition in respect of his ability to, at the time of appointing the First Defendant and his wife Janelle Ann Green (“Janelle”) as directors of Richard J Green Enterprise Pty Ltd, issuing a new share of the company to each of them and appointing the First Defendant secretary of the company (as noted in two Form 484 ASIC documents signed by the deceased on 13 December 2022):

i. appreciate the effects of issuing two new shares on the company, including that he will lose his majority shareholding and that, together, the two new shareholders will be able to pass ordinary resolutions;

ii. appreciate the effects of appointing two new directors to the company, including that, together, the two new directors will be able to make resolutions regarding the management of the company, including in respect of the RJG Family Trust of which it is trustee, the various properties which the company owns and the marina business which it operates, and whether the First Defendant and Janelle are appropriate persons to take on directorships; and

iii. appreciate the nature of the role of a secretary of a company, such as signing documents which bind the company, maintaining records of the company and making contracts connected with the administrative side of the company’s affairs, and whether the First Defendant is an appropriate person to take on that role.

4. If the deceased’s cognition was impaired or compromised as at 14 December 2022:

a. How, if at all, would each of the medical condition(s) and/or medication(s) have impaired or compromised the deceased’s cognition in respect of his ability to, at the time of executing his Will dated 14 December 2022:

i. understand the nature of the act of making a Will and its effects;

ii. understand the extent of the property the subject of the Will; and

iii. comprehend and appreciate or assess the moral claims of potential beneficiaries of his estate.

b. How, if at all, would each of the medical condition(s) and/or medication(s) have impaired or compromised the deceased’s cognition in respect of his ability to, at the time of executing the enduring power of attorney dated 14 December 2022:

i. consider whether it is to his benefit and in his interests to allow another person to have control over the whole of his affairs so that they can act in those affairs in any way in which he could himself act, but with no duty to seek his permission in advance or to tell him after the event, so that they can, if they so decide, do things in his affairs that he would himself wish to do and also things that he would not choose to do and not wish to see done; and

ii. consider whether it is to his benefit and in his interests that everything that he can himself lawfully do can be done by the First Defendant (or Janelle as substitute attorney).

Materials

For your information, we attach a copy of the following records in respect of the hospital admission of the deceased produced to the Supreme Court of NSW under subpoena:

(a) Illawarra Shoalhaven Local Health District (ISLHD) hospital notes and records in respect of the deceased;

(b) Hospital notes and records from David Berry Hospital in respect of the deceased from his admission on 13 December 2022 to the date of his death.

We also attach a copy of the deceased’s death certificate.

Material facts

The deceased

The deceased was born on 28 June 1956 and was aged 66 at the time of his death. There is no suggestion he suffered from any dementia at the time he made a Will on 14 December 2022.

From at least 2013, the deceased suffered from a number of medical conditions, including in particular:

(a) pancreatic cancer;

(b) chronic major depressive disorder;

(c) chronic pain disorder;

(d) type II diabetes;

(e) osteoarthritis; and

(f) severe carpal tunnel syndrome.

The deceased died on 18 December 2022 in David Berry Hospital with the listed cause of death being:

(a) metastatic adenocarcinoma;

(b) pancreatic head; and

(c) type II diabetes.

Background

The Plaintiff and the deceased were married on 11 August 2012. There are no children of the marriage. The deceased has no children by any other union.

The First Defendant is the deceased’s only sibling. He is married to Janelle. The First Defendant and Janelle have three children: Jonathan, Ellen and Amy.

In January 2015, the deceased purchased a property at [XXX] River Road, Sussex Inlet (“Sussex Inlet property”) and various investments, including a marina business which he operated. The marina business was carried on through the company Richard J Green Enterprise Pty Ltd, which company was trustee of a discretionary trust, the RJG Family Trust. The company also owned, as trustee, a block of six residential flats at [XX] Iverison Road, Sussex Inlet (“Sussex Inlet units”). The deceased was the sole director and shareholder of the company.

The deceased was diagnosed with pancreatic cancer in or about September 2022.

On 9 December 2022, Dr Stephanie Robinson, Senior Medical Officer at Shoalhaven Hospital, discussed with the deceased that intervening medical treatment would not be of any benefit. It was felt at that time that the deceased only had a matter of weeks left to live and that he should consider being moved to palliative care at the David Berry Hospital.

On 13 December 2022, the deceased was seen by Dr Wan Barhum. Also on that day, the deceased was transferred to David Berry Hospital to the palliative care unit for symptom management of pain and potential end of life care.

The estate and other property

At the time of the deceased’s death, being only 4 days after executing the 2022 Will, his estate consisted of the following:

(1) the Sussex Inlet property, estimated at $2 million;

(2) two Bendigo Bank accounts, totalling $277,092.39;

(3) one fully paid ordinary share in Richard J Green Enterprise Pty Ltd, estimated at $200,000;

(4) four motor vehicles and two motorbikes, estimated at $227,000;

(5) an ocean cruiser with trailer, estimated at $70,000;

(6) three boats with trailers, estimated at $9,000; and

(7) approximately two hundred collectible model cars, estimated at $50,000.

Total: $2,833,092.39.

The deceased also had an outstanding loan from Bendigo Bank amounting to approximately $137,000.

As at 21 June 2023, the marina business operated by Richard J Green Enterprise Pty Ltd was said to be valued at approximately $370,000, and the Sussex Inlet units were said to be valued at between $1.1 million to $1.2 million.

Effect of the disputed documents

Will dated 14 December 2022

By his Will dated 14 December 2022, the deceased appointed the First Defendant to be the executor and trustee of his estate. In the events which have occurred, the deceased left his estate upon the following trusts:

(a) as to an amount of $1 million, for the Plaintiff; and

(b) as to the balance, for the First Defendant’s three children in equal shares between them as tenants in common.

By his previous Will dated 3 June 2015, the deceased purported to gift the Plaintiff:

(a) the Sussex Inlet property, inclusive of all furniture and fittings, plus the timber runabout at the property;

(b) the Sussex Inlet units, inclusive of all furniture and fittings; and

(c) any money the deceased held in bank accounts.

The First Defendant was given the residue of the deceased’s estate under the previous Will.

Enduring power of attorney

By the enduring power of attorney signed by the deceased on 14 December 2022, he appointed the First Defendant to be his attorney. He also appointed Janelle to be his substitute attorney.

Form 484 ASIC documents

In the first Form 484 ASIC document signed by the deceased on 13 December 2022, he notified ASIC of the appointment of the First Defendant and Janelle as directors of Richard J Green Enterprise Pty Ltd and the issue of one new share to each of the First Defendant and Janelle. It is indicated that both the director appointments and the share issue took place on 13 December 2022.

In the second Form 484 ASIC document signed by the deceased on 13 December 2022, he notified ASIC of the appointment of the First Defendant as secretary of Richard J Green Enterprise Pty Ltd. It is indicated that the appointment took place on 13 December 2022.

Summary of Medications

See attached pages 117-119 of the David Berry Hospital notes on 14 December 2022.

TIME	MEDICATION	DOSAGE
08:00 AEDT	Macrogol 3350 with electrolytes (Movicol)	N/A
08:00 AEDT	Multivitamin with Minerals	N/A
08:00 AEDT	Enoxaparin (Clexane)	N/A
08:17 AEDT	Docusate-senna (Coloxyl)	50mg – 8mg
08:18 AEDT	Gabapentin	100mg
08:19 AEDT	Gliclazide	80mg
08:20 AEDT	Metoclopramide	10mg
08:21 AEDT	Pantoprazole	40mg
08:37 AEDT	Macrogol 3350 with electrolytes (Movicol)
08:38 AEDT	Oxycodone (OxyContin)	30mg
14:25 AEDT	Metoclopramide	10mg
19:55 AEDT	Oxycodone (OxyContin)	30mg
19:56 AEDT	Docusate-Senna	50mg-8mg
19:56 AEDT	Macrogol 3350 with electrolytes (Movicol)
19:56 AEDT	Metoclopramide	10mg
19:56 AEDT	Amitriptyline	10mg

Code of Conduct

We confirm that you are bound by the Uniform Civil Procedure Rules 2005 (NSW) – Schedule 7 Expert Witness Code of Conduct, which is attached to this letter.

We note that you must:

(a) read the Code;

(b) familiarise yourself with the Code; and

(c) explicitly acknowledge in your report that you have read the Code and agree to be bound by it.

Content of report

In preparing your report, the content should address the matters specified in cl 3(a)-(l) of the Code.

Fees

We note your preliminary advice on your fee estimate is [fee estimate].

Upon receipt of the material, we ask that you please provide us with an update of your fees prior to commencing your report and the estimated time for completion. Please let us know if you require any further information.

[Concluding formalities omitted]

**********

Endnotes