Expert Evidence in Contentious Probate Cases

November 11, 2016

“When an expert has been instructed to give, or to prepare evidence for the purposes of Court proceedings, the expert owes a duty to assist the Court on matters within his or her expertise and this duty overrides any obligation to the party from whom the expert has received instruction, or by whom the expert is to be paid”.

The above quotation comes from Practice Direction No. 1 of 2015 and relates to expert evidence in the Commercial List of the Queen’s Bench Division of the High Court of Justice in Northern Ireland.

However, the overriding duty owed by an expert to the Court extends to all other Divisions of the High Court, including the Chancery Division, where contentious probate cases are determined.

Furthermore, Mr Justice Cresswell set out seven rules for all experts instructed in litigation, known as the Ikarian Reefer Rules, which include:-

  • Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation;
  • An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within their expertise. An expert witness in the High Court should never assume the role of an advocate;

The experts who are mainly instructed in contentious probate disputes include individuals with an expertise in the medical field, handwriting, valuation of property and tax experts.

The expert should obviously be provided with written and fulsome instructions. For example, when instructing a medical expert, he or she should receive all of the medical notes and records of the Deceased, including any assessment of the Deceased’s testamentary capacity carried out in and around the date the Testator executed the Will.

In addition, the draftsman of the Will should be asked for a Larke v Nugus statement regarding the execution of the Will and the circumstances surrounding it. This statement can often dissuade a disappointed family member from pursuing a challenge to the Will and therefore, save both costs and the Court’s time.

The costs of an expert may be recovered from the Estate but there is no guarantee. Mr Justice Girvan, as he then was, made it clear in the case of Thompson v Watton, that if the circumstances of the case lead reasonably to an investigation or an enquiry into the circumstances surrounding the execution of the Will, the Plaintiff will not normally be condemned in costs even if his case fails. However, the Court will examine whether or not an expert was in fact required to pursue that enquiry.

For example, in Hawes v Burgess [2013], Lord Justice Mummery questioned whether or not expert evidence was needed. His Lordship stated that:-

The Court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when an expert has neither met nor medically examined the Testatrix, and particularly in circumstances where that expert accepts that the Testatrix understood that she was making a Will and also understood the extent of her property”.

Consideration should also be given to whether or not a joint expert should be instructed. This can, again, save costs and given the overriding duty of the expert to the Court, it should not matter that he owes a duty of care to both Plaintiff and Defendant.

In the event that an expert fails to comply with his overriding duty, the Court can publicly criticise the expert in its Judgment and impose cost penalties against the expert and those instructing the expert. In the most extreme cases, the Court can invoke general powers of contempt, or criminal sanctions can be imposed for perjury.

Clearly, a decision as to whether or not to instruct an expert and if so, the appropriate expert are matters which should be given detailed consideration. Failure to do so can have very significant consequences over and above potentially just losing the case at trial.

Please note:

The content of this article is for information purposes only and further advice should be sought from a professional legal advisor before any action is taken.

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