Instructing an expert in an estate challenge - lessons from the Green case

Complexities can arise in disputes over wills and estate management, particularly when questions of testamentary capacity and undue influence are at the heart of the proceedings. In reviewing the recent Supreme Court case of Green v Green [2024] NSWSC 1442 below, we will explore the various legal principles addressed in this case, the importance of expert evidence, and lessons for managing similar disputes.

Case Overview
The late Richard John Green’s estate became the subject of litigation following the execution of key documents mere days before his death in December 2022. These documents included a new will, an enduring power of attorney, and corporate resolutions altering control of a family trust. The deceased's wife, Elsa, alleged these documents were executed under undue influence or when Richard lacked the requisite capacity.

The estate included a Sussex Inlet property valued at over $2 million, significant financial assets (including shares worth $200,000), and valuable collectibles. The net value of the Estate was $2.8m.  The 2022 Will substantially altered provisions in an earlier 2015 Will, which left the bulk of the Estate to Elsa.  In the new 2022 Will, the Deceased left $1 million to his brother, and the balance to his brother's children.  Elsa sought to challenge its validity and the grant of probate in respect of that Will.

The first defendant in the proceedings was the deceased's brother, Michael, as the executor of the Estate.  The second defendant was the deceased's company, and the third defendant was Michael's wife, Janelle.

Key Legal Issues

1. Testamentary Capacity
   Testamentary capacity requires a testator to understand the nature and effects of a will, the extent of their assets, and the moral claims of beneficiaries. Courts also assess whether medical or cognitive impairments impacted the decision-making process. In this case, expert medical evidence was sought to evaluate whether Richard Green’s cognitive faculties were compromised by health conditions or medications during the critical period.  Of note, he had suffered from a combination of various medical conditions and illnesses since 2013.

   The Court referred to the pivotal case of Banks v Goodfellow regarding the determination of capacity, in which it was noted 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 apprecaite 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.

2. Undue Influence
   The plaintiff alleged undue influence in the preparation of the 2022 Will and other documents. Undue influence occurs when external pressure overbears a person’s free will, leading them to act contrary to their intentions or best interests. The court emphasized the importance of identifying specific instances of influence and linking them to the execution of contested documents.

3. Corporate and Trust Structures
   Disputes extended beyond the will, involving corporate resolutions affecting the ownership and management of Richard Green Enterprises Pty Ltd, a trustee company for the family trust. The issuance of new shares, recorded in the company records and notified to ASIC via a Form 484, diluted the plaintiff's interest, highlighting the need for clarity and oversight in corporate governance.

Expert Evidence in Testamentary Disputes
The court appointed a single expert witness, a geriatrician, to provide retrospective opinions on Richard’s cognitive state, however could not agree on the terms of the joint letter of instruction to the expert.  The parties therefore sought the Court's assistance to settle the terms of the joint letter. Questions to the expert included whether medical conditions or medications impaired his ability to understand the implications of his actions. This process underscores the importance of detailed and unbiased instructions to experts in litigation.

Lessons from the Case

1. Clear Testamentary Intentions
   Drafting wills and estate documents should be done with clarity and proper legal oversight to reduce ambiguity and potential disputes. Regular updates reflecting the testator's circumstances are critical.

2. Medical Documentation
   Where health issues may impact testamentary capacity, detailed medical records can be pivotal. These records assist courts and experts in assessing the testator’s ability to make informed decisions.  In this instance, the Court considered that useful "retrospective"medical expert evidence in probbate capacity cases:

   1. details the medical conditions from which the instrument maker (that is, the deceased) was suffering;
   2. details the medications which the instrument maker was taking or being administered; and
   3. 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.

3. Independent Advice
   Involving independent legal advisors minimizes allegations of undue influence. This is particularly crucial when major changes to an estate plan occur late in life or under complex circumstances.

Ultimately, the Court addressed the form of the joint letter of instruction to the expert witness tasked with providing an opinion on the Deceased's testamentary capacity and related matters.  The Court determined the specific content and structure of the joint letter to ensure clarity and focus for the expert.

• Refinement of Expert Questions:
  The Court revised and narrowed the questions to be posed to the expert, particularly focusing on:

  • The impact of the deceased's medical conditions and medications on his cognition.
  • The deceased's capacity to understand and execute specific documents, including the 2022 Will, the enduring power of attorney, and corporate resolutions.
  • Whether his cognition was impaired to the extent that his free will could have been overborne by undue influence or pressure.

• Background Material in Instructions:
  The Court accepted a more concise version of the factual background to be included in the expert's instructions, removing content that was disputed or potentially prejudicial.

• Capacity Considerations:
  The Court emphasized the need for the expert to analyze the deceased's capacity in relation to the specific tasks involved in executing each document. It noted that the capacity required for executing a will differs from that for other legal documents, such as a power of attorney or corporate resolutions.

• Expert Evidence Framework:
  The Court reiterated the importance of an expert's impartiality and the need to focus on providing insights within their area of expertise, rather than making legal conclusions.

• Orders Issued:
  The Court directed the parties to finalize and deliver the revised joint letter of instruction to the expert by a specified deadline, ensuring the expert's assessment could proceed without further delay.

The Court ultimately did not resolve the broader claims regarding testamentary capacity, undue influence or the validity of the 2022 Will and associated documents.  Those issues remain to be determined based on the evidence, including the expert's report.