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  • Courts hearing mental capacity cases give weight to contemporaneous medical evidence and treating doctor opinion.
  • The recent case of Curcuruto gives clear direction as to how a Court will use this evidence.
  • Guidance for adducing treating doctor evidence is provided, including suggestions for Treating Doctor Affidavits and Report headings.

In cases where mental capacity, including testamentary capacity, is in question, evidence as to the underlying medical and/or mental condition of the subject person (‘the person’) is critical for a Court to make its determination. Such evidence is often adduced by way of retrospective expert medical opinion, where ‘medical’ experts often include neuropsychologists, neurologists, geriatricians and psychiatrists.

Retrospective expert evidence

The term ‘retrospective’ is typically used where the expert has not assessed or observed the person at the time the legal transaction in question was executed (‘the material time’). A retrospective expert will review contemporaneous documents, and provide an opinion based upon the documents and their specialist knowledge (Evidence Act 1995, s 79). In order to adduce retrospective expert evidence in proceedings, practitioners must seek directions from the Court, often by way of Notice of Motion (Uniform Civil Procedure Rules (‘UCPR’), Part 31), which may increase costs and cause delay. An additional disincentive to reliance on retrospective expert evidence has come from the Court itself, as highlighted by comments of Hallen J in Starr v Miller [2021] NSWSC 426: ‘The evidence of each is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than [the retrospective evaluation] … of medical experts who lack the opportunity to observe, and assess, the deceased first-hand’ (at [487]).

These recent comments echo long standing concerns raised by judges at first instance and the Court of Appeal in relation to retrospective expert opinion (Croft v Sanders [2019] NSWCA 303 (‘Croft’)).

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