Campbell v Campbell

Case [2022] QSC 34

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, cited

Worth 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 behalf

SOLICITORS:

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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Details
AGLC
Campbell v Campbell [2022] QSC 34
Case
[2022] QSC 34
Decision Date

CaseChat Overview and Summary

The case of Campbell v Campbell involved a dispute over the validity of a will made by the deceased, Graham Alexander Campbell, on 16 February 2016. The plaintiff, Roswita Gretel Campbell, who was named as the executor and trustee under the will, sought a grant of probate in solemn form of the will. The defendant, Danielle, contested the proof of the will and the grant of probate, arguing that Graham lacked testamentary capacity when he made the will. The central issue before the court was whether Graham had the testamentary capacity to make the will, and whether the will was the true expression of his intentions.

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

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Evidence

Evidence Before The Court

With these principles in mind, I turn to the evidence before the court. Witnesses and documentary evidence The evidence relevant to Graham’s testamentary capacity when he made the Will comprises first that of witnesses who knew and observed Graham before and after he made the Will, including the solicitor who took his instructions for the Will, drafted it and took Graham through its provisions on the day it was executed. Rosy gave evidence herself, and called two other witnesses: Ms Kylie Pryce, Graham’s financial planner between 2013 and 2019, and Mr Clive Speakman, Graham’s solicitor between mid-2014 and May 2016. Through her counsel, Rosy tendered, by consent, a trial bundle, comprising two volumes of material. It became Exhibit 1. In addition to the affidavits sworn or affirmed by Rosy, Ms Pryce, Mr Speakman, and Mr Wheeldon, Exhibit 1 included a report of Professor Gerrard Byrne, and extensive documentary evidence from medical professionals whom Graham attended and who reported on specialist scans of Graham over this period. Rosy also called Professor Gerrard Byrne, who was briefed with much of the evidence. He provided his opinion on Graham’s medical state at the time he made the Will, based on a review of that material. In his affidavit Mr Wheeldon, another solicitor, identified and exhibited the letter of instructions and the materials given to Professor Byrne. Through her counsel, Rosy also tendered a bundle of correspondence passing between her solicitors and Dr Smith from 14 December 2018 to 24 May 2019, which helped to explain why Dr Smith provided a short additional comment on Graham’s score in a particular medical examination: see [167] below. Rosy’s counsel also tendered a second affidavit of Ms Pryce. Danielle cross-examined Rosy, Mr Speakman, Ms Pryce, and Professor Byrne. She did not require Mr Wheeldon for cross-examination. Danielle called Graham’s brother Kevin William Campbell (Kevin) as a witness. She did not give evidence herself. Kevin’s affidavit was included in Exhibit 1. Mr Meredith, for Rosy, cross-examined Kevin. Danielle also tendered three documents: a report from an officer of the Commonwealth Attorney-General’s Department on a complaint Danielle made about the marriage celebrant who officiated at the wedding of Graham and Rosy (AG report); a report of two officers of the Office of the Public Guardian about several complaints Danielle made (OPG report); and an affidavit Graham swore in the Federal Circuit Court proceedings between him and Joan. It is convenient to deal with the uncontested evidence of events in a chronological order, before considering specific evidence of Kevin, Ms Pryce and Rosy. I will then deal with the medical records, again in chronological order, and the opinion evidence of Professor Byrne. Events leading up to the Will Early in his working life, Graham completed an apprenticeship as a fitter and turner. He worked on Stradbroke Island for Consolidated Rutile. When he moved back to Brisbane, he bought a tip-truck and worked for local councils as an owner-driver.

Decision

Reasons for decision

These steps would have required Graham’s continued or repeated consideration of his testamentary disposition, his available assets, and the deployment of them to facilitate his testamentary intention. They were taken from early February 2016, when he gave instructions to include them in his new Will, through to early March 2017, when he signed the binding nomination form. I accept this as evidence Graham was able to form, plan and carry through an intention to leave each of the three children a specific, substantial, and equal bequest, including the dedication of a specific superannuation fund to provide his estate with the funds to meet the bequests. In contrast to this, there is no evidence of impairment of his judgment and planning in or before he made the Will in February 2016. Conclusions The parties collected and tendered a great deal of evidence of observations, examinations, and investigations of Graham in the last five years of his life. I have approached the evidence with caution and scrutinised it carefully to identify the parts that appear precise and those that are loose and inexact, as Dixon J advised.[38] [38]Briginshaw v Briginshaw (1938) 60 CLR 336, 368. I have considered all the facts proved which are relevant to Graham’s testamentary capacity. In doing so, I have resisted being drawn into a preoccupation with the medical evidence, still less with the medical jargon. The medical evidence is not an end in itself, requiring specific resolution. It relevant only in so far as it throws light on whether Graham: appreciated the extent of the property to be disposed of; realised the various calls for disposition he should consider; and was able to evaluate those calls to give effect to the resulting dispositions by the provisions of the Will.[39][39]Easter v Griffith (1995) 217 ALR 284, 295 (Kirby P). I have accepted the diagnosis of Professor Byrne, made in retrospect after consideration of all the medical evidence. It is that Graham had either mild cognitive impairment (a mild neurodegenerative disorder) or mild dementia (a major neurodegenerative disorder) on 16 February 2016 when he signed the Will. To chart the course of Graham’s progressive disease, I have given greater weight to the contemporaneous reports about Graham’s actual behaviour made by medical professionals trained and experienced in making such notes. I have also considered the MMSE results. In doing so, I have kept in mind that the MMSE is not a test for testamentary capacity. While it “may be an indicator of cognitive impairment”, it has been described as “a blunt instrument”; and so I have considered the results in conjunction with other evidence of Graham’s capacity at the time he made the Will.[40] It has some relevance, at least because Graham did the test perhaps six or more times between February 2013 and November 2018.[41] I am also mindful of Professor Byrne’s evidence that the results depend upon the way the test is administered and scored. This makes the tests administered by the same practitioner more comparable to each other. With those caveats, the scores recorded show in outline some relative changes in Graham’s cognitive abilities over that period. [40]Ruskey-Fleming v Cook [2013] QSC 142 at [65] (Mullins J). [41]Dr Smith also administered the MOCA test on 17 August 2015 (14/30) and 3 September 2015 (15/30).

Ratio Decidendi

Legal Principle Established

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