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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Green v Green [2024] NSWSC 1442
Case
[2024] NSWSC 1442
Decision Date
CaseChat Overview and Summary
The matter of Green v Green involved a dispute over the validity of a 2022 Will, with the plaintiff, the deceased’s wife, contesting the grant of probate and seeking further provision out of the deceased’s estate. The dispute centred on whether the deceased had the requisite mental capacity to execute the Will and related documents at a time close to his death. The case was heard in the Supreme Court of Victoria.
The central legal issues before the court were whether the deceased had the necessary mental capacity to execute the Will and related documents, and if the terms of the joint letter of instruction to the parties’ expert on the issue of capacity could be settled by the court. The court also had to consider the role and content of expert evidence in probate capacity cases, particularly retrospective medical expert evidence.
The court addressed the capacity issue by examining the law’s perspective on capacity as being both time- and task-specific, drawing on the High Court’s decision in Gibbons v Wright. It emphasised the specific nature of the tasks involved in executing a Will, appointing an enduring power of attorney, and making corporate decisions for a sole director and shareholder company. The court settled the terms of the joint letter of instruction in a form that allowed for a nuanced examination of the deceased’s capacity in relation to each document. The court determined that retrospective medical expert evidence should detail the deceased’s medical conditions, medications, and their potential impact on his capacity to understand and execute the various instruments.
The court concluded that the terms of the joint letter of instruction to the expert should reflect the different capacities required for each instrument executed by the deceased. The final orders included the settled terms of the joint letter of instruction, which was appended to the reasons for judgment.