SUPREME COURT OF QUEENSLAND
CITATION:
Campbell v Campbell [2022] QSC 34
PARTIES:
ROSWITA GRETEL CAMPBELL AS EXECUTOR OF THE WILL OF GRAHAM ALEXANDER CAMPBELL, DECEASED
(plaintiff)
v
DANIELLE JO CAMPBELL(respondent)
FILE NO/S:
3640 of 2020
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
23 March 2022
DELIVERED AT:
Brisbane
HEARING DATES:
9-10 March 2022
JUDGE:
Bradley J
ORDER:
1. The court pronounces in solemn form of law for the full force and validity of the last will and testament of Graham Alexander Campbell (deceased) made on 16 February 2016 a copy of which is at pages 120 to 123 of Exhibit 1 in this proceeding (the “Will”).
2. Subject to the formal requirements of the registrar and any outstanding compliance with the requirements of the Uniform Civil Procedure Rules 1999 (Qld), probate of the Will be granted to the plaintiff Roswita Gretel Campbell.
3. The plaintiff’s costs of and incidental to this proceeding be paid out of the estate on an indemnity basis.
CATCHWORDS:
SUCCESSION – MAKING OF A WILL – LOSS OR LACK OF CAPACITY AND STATUTORY WILLS – where the deceased made a Will on 16 February 2016 – where the deceased suffered a cognitive impairment – where the plaintiff was named as executor and trustee under the Will – where the plaintiff seeks a grant of probate in solemn form of the Will – where the defendant contests the proof of the Will and the grant of probate – whether the deceased lacked testamentary capacity – whether the Will on the balance of probabilities is the true will of the deceased
Bailey v Bailey (1924) 34 CLR 558, cited
Banks v Goodfellow (1870) LR 5 QB 549, followed
Bull v Fulton (1942) 66 CLR 295, followed
Conroy v Unsworth-Smith [2004] QSC 81, cited
Frizzo v Frizzo [2011] QCA 308, cited
Frizzo v Frizzo [2011] QSC 107, followed
Greer v Greer [2021] QCA 143, cited
Perrins v Holland [2011] Ch 270, cited
Read v Carmody [1998] NSWCA 182, followed
Ruskey-Fleming v Cook [2013] QSC 142, cited
Tobin v Ezekiel (2012) 83 NSWLR 757, citedWorth v Clasohm (1952) 86 CLR 439, cited
Succession Act 1981 (Qld), s 14(1)
Uniform Civil Procedure Rules 1999 (Qld), r 604(1)
COUNSEL:
J Meredith for the plaintiff
The defendant appeared on her own behalfSOLICITORS:
Wheldon & Associates for the plaintiff
The defendant was self-represented
“Darkness and suspicion are common features in will cases: the truth too often is the secret of the dead or the dishonest. Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is … the requirements of proper form and due execution. Such requirements … are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of…
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- AGLC
- Campbell v Campbell [2022] QSC 34
- Case
- [2022] QSC 34
- Decision Date
CaseChat Overview and Summary
The court considered various pieces of evidence, including testimony from witnesses who knew Graham before and after he made the will, as well as medical reports and records. The court also took into account the opinion of Professor Gerrard Byrne, who reviewed the medical evidence and provided his assessment of Graham's cognitive state at the time he made the will. The court found that Graham had either mild cognitive impairment or mild dementia on 16 February 2016 when he signed the will, but that this did not necessarily mean he lacked testamentary capacity. The court held that Graham was able to form, plan, and carry through an intention to leave each of his three children a specific, substantial, and equal bequest, and that there was no evidence of impairment of his judgment and planning in or before he made the will in February 2016.
The court ultimately found that the will was the true expression of Graham's intentions, and that he had the testamentary capacity to make the will. The court granted the plaintiff's application for a grant of probate in solemn form of the will, and ordered that the plaintiff's costs of and incidental to the proceeding be paid out of the estate on an indemnity basis.
Orders
Orders of the court
1. The court pronounces in solemn form of law for the full force and validity of the last will and testament of Graham Alexander Campbell (deceased) made on 16 February 2016 a copy of which is at pages 120 to 123 of Exhibit 1 in this proceeding (the “Will”).
2. Subject to the formal requirements of the registrar and any outstanding compliance with the requirements of the Uniform Civil Procedure Rules 1999 (Qld), probate of the Will be granted to the plaintiff Roswita Gretel Campbell.
3. The plaintiff’s costs of and incidental to this proceeding be paid out of the estate on an indemnity basis.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.