The New South Wales Court of Appeal has recently weighed in on a complex and developing area of law: whether an executor can sue a medical professional for negligence after a testator (the person making the will) loses capacity.

If you are an executor or a beneficiary dealing with the fallout from disputed wills and mounting legal costs, this case provides a crucial insight into how the courts are handling claims against the professionals involved in a testator's care.

The Case in Brief

The case involves the estate of a man who made six different wills over a two-year period while under the care of his geriatrician, Dr Dedousis. After his death, the Court found that the testator lacked the mental capacity to make those later wills. Consequently, an earlier will had to be used, and the estate was left with a massive legal bill—approximately $2.49 million from the probate fight alone.

The executor of the estate (the testator's son) sued the geriatrician. He argued that if the doctor had properly diagnosed the testator's cognitive decline, the invalid wills would never have been made, and the estate would not have incurred those legal costs.

The doctor applied to have the case thrown out immediately, arguing that as a matter of law, he owed no duty to the estate. The Court of Appeal has now ruled that the case is too complex to dismiss at this early stage and should be allowed to proceed.

What This Means for Clients Involved in Probate

If you are facing a situation where a professional's oversight has led to expensive estate litigation, this decision offers several important insights:

1. Claims Against Professionals are Possible, But Complex
While it may feel intuitive that a doctor who misses signs of dementia should be responsible for the resulting legal chaos, the law is still catching up. The Court acknowledged that this is a "novel" claim. It doesn't mean you will automatically win, but it does mean the courts are willing to listen to these arguments rather than shutting them down immediately. If you believe a professional's negligence caused your estate to suffer financial loss, it is worth exploring whether you have a case.

2. The Facts of Your Case are Crucial
The Court placed significant weight on a specific detail: the doctor had written letters to a solicitor commenting on the testator's cognitive capacity to make decisions. This was a key fact that persuaded the Court the case had enough merit to continue.

• Your Takeaway: The success of these claims often hinges on the paper trail. Any letters, emails, or notes from a doctor, solicitor, or financial advisor regarding a person's capacity can be vital evidence.

3. Expect a Long Road
The Court refused to grant the doctor "leave to appeal" because it felt the issues were too important to decide based on incomplete information. This means the case will now go back to the lower court for a full hearing.

• Your Takeaway: Litigation involving professional negligence and estates is rarely quick. The Court of Appeal's decision simply allows the case to proceed to the next stage. You should be prepared for a lengthy process, especially when trying to establish a new area of law.

4. The "Executor Duty of Care" is Emerging
Initially, the executor argued that the doctor owed a duty to the patient (the testator). However, the executor has since amended his claim to argue that the doctor owed a duty directly to the executor. This is a significant development. It suggests that professionals may, in certain circumstances, be held responsible not just to their patient/client, but to the people who have to clean up the legal mess after the patient has passed away.

Final Thoughts

This decision does not mean the executor has won his case; it simply means he gets his day in court. However, for anyone dealing with the financial consequences of a poorly managed estate or a disputed will, it is a positive sign that the courts are open to examining the conduct of the professionals involved.

If you are an executor facing unexpected legal costs due to what you believe was negligence by a doctor, solicitor, or other advisor, you should seek legal advice promptly. Building a strong factual record early on is critical to navigating these complex claims.