Green v Green [2024] NSWSC 1442

Green v Green [2024] NSWSC 1442

The Court ordered that the parties must finalise and provide to the expert a joint letter of instruction in a form substantially set out in the Schedule, reflecting narrowly agreed factual matters, excluding disputed background, and focusing on whether the deceased's cognition was impaired by medical condition and/or medication at relevant times and, if so, how this affected his capacity to perform specific legal and corporate acts, as opposed to asking for an opinion on ultimate legal questions or undue influence.

Parties
Plaintiff: Elsa Green; First Defendant: Michael James Green; Second Defendant: Richard J Green Enterprise Pty Ltd; Third Defendant: Janelle Ann Green
Jurisdiction
Australia
Judgment Date
15 November 2024
Procedural Posture
Contested Probate and Family Provision / Application to Settle Contents of Joint Letter of Instruction to Expert
Outcome
Interlocutory procedural orders (not determinative of probate/family provision)
Legal Topics
Testamentary Capacity, Family Provision, Expert Evidence, Letters of Instruction, Company Law: Appointment of Directors and Share Issue
Succession Probate Corporations Evidence Testamentary Capacity Family Provision Expert Evidence Letters of Instruction +1 more

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Parties

Elsa Green

Plaintiff

Michael James Green

First Defendant

Richard J Green Enterprise Pty Ltd

Second Defendant

Janelle Ann Green

Third Defendant

Procedural Posture

Contested Probate and Family Provision / Application to Settle Contents of Joint Letter of Instruction to Expert

Legal Issues

  1. 1 Appropriate terms for a joint letter of instruction to a parties' single expert concerning the deceased's capacity to execute contested documents including a will, power of attorney, and company documents
  2. 2 Risks and appropriateness of including disputed facts in the letter of instruction to the expert
  3. 3 Applicable legal test for testamentary capacity, capacity to appoint an attorney, capacity regarding company management actions

Ratio Decidendi

The Court ordered that the parties must finalise and provide to the expert a joint letter of instruction in a form substantially set out in the Schedule, reflecting narrowly agreed factual matters, excluding disputed background, and focusing on whether the deceased's cognition was impaired by medical condition and/or medication at relevant times and, if so, how this affected his capacity to perform specific legal and corporate acts, as opposed to asking for an opinion on ultimate legal questions or undue influence.

Court Disposition

Interlocutory procedural orders (not determinative of probate/family provision)

Orders

  • The parties are directed to 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.
  • Order that costs of and incidental to the application be costs in the cause.