Can an Expert address the Ultimate Issue?

The question often arises of whether or not an Expert can, or should, provide an opinion on whether the facts they are instructed to assume and the results of their own opinion lead to a specific legal result.

Opinion evidence – expert opinion exception

Opinion evidence is prima facie not admissible (s76 Uniform Evidence Acts) because it is unreliable and potentially usurps the Judicial decision making role of interpreting facts.

An exception to the general opinion rule is expert opinion evidence (s79). Where there is a field of specialised knowledge (field of expertise) and the person has that specialised knowledge because of their training, study and experience (an expert) and provides an opinion within their expertise (expert opinion) it is likely to be sufficiently reliable to assist the Court and is therefore admissible.

Ultimate Issue Rule

There is a long history of argument that an expert should not comment on the ultimate issue for determination because that goes further than just providing an opinion within their field of expertise and, at that point, becomes inadmissible because it usurps the Judicial role.

Because of that view of the Ultimate Issue Rule expert opinions often went right up to the point where it was (hopefully) obvious what the expert thought the answer to the question for the Court was, but they did not write the concluding sentence or paragraph.

However, a proper analysis of the law relating to the Ultimate Issue Rule shows that it was always more accurately characterised as an example of the requirement that an opinion not be a mere ipsa dixit (because I say so!) statement. As the Full Federal Court stated in Arnotts v TPC:

“It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide. This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether that fact exists can be answered only by experts … What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law.” (See: Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, 350 (Lockhart, Wilcox and Gummow JJ) quoting R Eggleston, Evidence, Proof and Probability (2nd ed, 1983), 147–148.)

Given the above understanding the ultimate issue rule was specifically abolished (s80) in 1995 in NSW and in other jurisdictions which apply the Uniform Evidence Act. In jurisdictions which technically retain the rule it’s proper application should not constrain an expert in the way it was so often suggested it did.

Ultimate Issue Rule – Dead but Not Buried

Despite it’s abolition, and the fact that it didn’t actually mean what it was so often cited to mean, the principles underlying the Ultimate Issue Rule are often cited to seek to constrain experts from applying a legal standard to facts, including facts which are established by their opinion.

To be clear, the expert who provides an opinion may apply a stated legal standard to facts founded on their opinion in order to fully explain their opinion, but is not entitled to purport to apply the law to the facts generally. (See Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79, esp at 83-84.)

So can an Expert provide an opinion on the ultimate issue?

Yes.

So long as the opinion fully expresses all of their assumptions and the reasoning process by which they have applied their expertise to those assumed facts, and how they have applied the explicitly stated legal standard to the facts reached by their opinion.

I should note that some Counsel prefer that an expert not do so, for forensic reasons, but there is a good argument that in providing their full and transparent opinion to assist the Court the Expert should not stop just short of addressing the ultimate issue when they are in a position to do so.

Bruce Smith

Questions or feedback welcome to:  BSmith@expertexperts.com.au or brucesmith@jackshand.com.au

This is not legal advice.  I regularly conduct discussion groups on discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses and those who retain them.  It’s been suggested my short synopses might be of interest to others.  If they are I’ll post more.

Seminars: I regularly present seminars on different areas of expert evidence for the Law Society of NSW, sometimes with experts in those fields.  I am open to presenting these seminars in-house to larger firms and insurers for whom sending large numbers of people to the Law Society seminars is not practical.

Next Law Society seminar is 12 September 2017:

Dealing with clients with (possible) impaired mental capacity: with Therese Catazariti of 13 Wentworth, Professor Coyle and Alicia Tyler psychologists.  http://eshop.lawsociety.com.au/index.php/catalog/product/view/id/3920

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Assessing Testamentary Capacity at Time of Will: New “Rules of Thumb” for Solicitors – Supreme Court NSW

In Ryan v Dalton (31 July 2017) Justice Kunc provided a “postscript” on “questions of capacity” “proposing some basic rules of thumb” as “basic precautions” particularly in relation to “anyone:

(a) over 70;
(b) being cared for by someone;
(c) who resides in a nursing home or similar facility; or
(d) about whom for any other reason the solicitor might have concern about capacity.”

His Honour noted that

“the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death”.

These “rules of thumb” may be “offered only as suggested basic precautions” but will inevitably be argued at some stage as providing a clear baseline for assessing whether a solicitor met their standard of reasonable care in the execution of a will or other similar transaction.

The requirement for an interview without other people and using open rather than leading questioning also provides clear guidance for experts in the assessment process.

In summary, if in doubt spend a small amount of money now to have an independent assessment of capacity to save running a major trial 10 years later.

Click here for details of an upcoming Law Society and Expert Experts joint Seminar.

The “Postscript” is set out in full below.

Estate of Ryan [2017] NSWSC 1007 (31 July 2017)

Postscript – the need for continuing legal education on questions of capacity

101. The demographic reality of an aging population means that the likelihood of challenges to wills on the ground of testamentary capacity is increasing. Two recent government reports on elder abuse have made recommendations in relation to the role of lawyers and legal education. Those matters, when also considered in the light of recent decisions of this Court on the question of testamentary capacity, suggest that it is appropriate to conclude this judgment with some observations divorced from the personalities and facts of this particular case.

102. The New South Wales Legislative Council’s Report on Elder Abuse in New South Wales (24 June 2016) included this recommendation:

“Recommendation 8

That the NSW Government liaise with Law Society of New South Wales to request the Society include a unit on the assessment of mental capacity in respect of substitute decision making, wills and property transactions in its Continuing Professional Development Program for legal practitioners.”

103. More recently, the final report of the Australian Law Reform Commission “Elder Abuse – a National Legal Response” (ALRC Report 131, May 2017), included this recommendation:

Recommendation 8-1 The Law Council of Australia, together with state and territory law societies, should develop best practice guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they provide thorough coverage of matters such as:

(a) elder abuse in probate matters;
(b) common risk factors associated with undue influence;
(c) the importance of taking detailed instructions from the person alone;
(d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and
(e) the importance of ensuring that the person has ‘testamentary capacity’ — understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits.”

104. The Court notes that the NSW Law Society’s publication When a Client’s Capacity is in Doubt: A Practical Guide for Solicitors was reissued in 2016.

105. Assistance in relation to making a will remains one of the most likely reasons for Australians to seek the assistance of a solicitor. The demographic trend to which I have referred suggests that a good understanding of the issues surrounding mental capacity is an essential skill for any solicitor who holds himself or herself out as competent to provide legal services to natural persons. It is to be hoped that the recommendations of the two recent reports, will be acted upon as quickly as possible.

106. Questions of testamentary capacity are necessarily fact sensitive. No rule or procedure will cover every case to avoid the possibility of litigation. Nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death. Bearing that in mind, and without wishing in any way to derogate from, for example, the desirability of all solicitors being familiar with the guidelines, the recent experience of the Court suggests that proposing some basic rules of thumb (which, as such, are necessarily arbitrary) may be of assistance.

107. It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue:

(1) The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary.

(2) A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.

(3) In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.

(4) In case of anyone:

(a) over 70
(b) being cared for by someone;
(c) who resides in a nursing home or similar facility; or
(d) about whom for any other reason the solicitor might have concern about capacity,

the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.

(5) Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided.

108. I emphasise that the foregoing is offered only as suggested basic precautions which may identify problems which need to be addressed. In many cases which do come before the Court the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely.”

SEMINARS AND REPORTS

NSW Law Society & Expert Experts seminar on Testamentary Capacity 12 September 2017:

Dealing with clients with (possible) impaired mental capacity: with Therese Catazariti of 13 Wentworth, Professor Ian Coyle and Alicia Tyler psychologists.

Expert Experts – Testamentary Capacity Assessments

Bruce Smith

Questions or feedback welcome to:

BSmith@expertexperts.com.au or brucesmith@jackshand.com.au

This is not legal advice. I regularly conduct discussion groups on discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses. It’s been suggested my synopses might be of interest to others. If they are I’ll post more.
Seminars: We regularly present seminars on different areas of expert evidence for the Law Society of NSW, sometimes with experts in those fields. I am open to presenting these seminars in-house to larger firms and insurers for whom sending large numbers of people to the Law Society seminars is not practical.