GARRY makes a will making various gifts to his two children.

Five years later, Garry is diagnosed with cancer and while admitted to hospital, makes another will, favouring one child over the other.

He passes-away three days later.

Garry’s capacity to make his last will is questioned and the matter proceeds to the Supreme Court.

The parties choose to jointly retain a geriatrician to provide medical evidence to the Court as an expert witness.

A dispute arises regarding the terms of the draft letter of instruction to the geriatrician and the Court “settles” the letter, addressing the relevant legal principles.

The Court’s letter asks the doctor whether, at the time he executed his last will, Garry was “suffering from a medical condition and/or taking or being administered medication which, either individually or cumulatively, impaired or compromised his cognition”.

The letter then asks whether any such medical condition or medication compromised Garry’s ability to “understand the nature of the act of making a Will and its effects, understand the extent of the property the subject of the Will and comprehend and appreciate or assess the moral claims of potential beneficiaries of his estate”.

The letter encloses copies of hospital notes and records relating to the time Garry made his last will and lists his medical conditions, medications and dosages.

The letter sets-out a brief background of the matter, the legal effect of both wills are summarised and the assets that Garry owned at his date of death are listed, which includes real estate, bank accounts and shares in a company.

Finally, the letter confirms that the doctor is bound by the Expert Witness Code of Conduct and states that the doctor must acknowledge in the report that the Code has been read and that the doctor agrees to be bound by it.

The Code states that the report must include the expert’s qualifications, the reasons for the opinion and a declaration that there are no matters of significance which have been withheld from the Court.

Email Manny Wood, principal solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This fictional column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor