Campbell v Campbell

Case [2023] QCA 3

SUPREME COURT OF QUEENSLAND

CITATION:

Campbell v Campbell [2023] QCA 3

PARTIES:

DANIELLE JO CAMPBELL
(appellant)
v
ROSWITA GRETEL CAMPBELL AS EXECUTOR OF THE WILL OF GRAHAM ALEXANDER CAMPBELL, DECEASED
(respondent)

FILE NO/S:

Appeal No 4551 of 2022
SC No 3640 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2022] QSC 34 (Bradley J)

DELIVERED ON:

12 January 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2022

JUDGES:

Mullins P, Morrison JA and Williams J

ORDERS:

1.   Application for leave to adduce further evidence refused.

2.   Appeal dismissed.

3.   The appellant must pay the respondent’s costs of the application and the appeal to be assessed.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the appellant is one of the deceased’s daughters and required the deceased’s widow to prove the last will in solemn form – where there were prior wills – where the issue at trial was whether the deceased had testamentary capacity when he made the last will and, in particular, whether his dementia precluded proof of testamentary capacity – where the appellant was unsuccessful at trial – where the appellant’s submissions focused on facts rather than asserting specific errors of law, and specific entries in the deceased’s medical records – where the specific entries relied upon by the appellant were considered by the primary judge – where the fact the deceased was suffering from mild cognitive impairment or mild dementia at the time he made the last will did not preclude his widow from satisfying the primary judge affirmatively that the deceased had testamentary capacity when he made the last will – whether the primary judge erred in law and in fact in applying the test in Banks v Goodfellow (1870) LR 5 QB 549 to the question of whether the deceased had testamentary capacity

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the appellant is one of the deceased’s daughters and required the deceased’s widow to prove the last will in solemn form – where there were prior wills – where the issue at trial was whether the deceased had testamentary capacity when he made the last will and, in particular, whether his dementia precluded proof of testamentary capacity – where the appellant was unsuccessful at trial – where the widow’s solicitors engaged a psychiatrist to provide an expert opinion on whether the deceased had testamentary capacity at the time of making the last will – where the appellant seeks to dispute the psychiatrist’s conclusions on appeal by reference to matters on which she did not cross-examine him – whether there were deficiencies in Professor Byrne’s evidence – whether the primary judge erred in relying on Professor Byrne’s opinion in light of the other evidence adduced at the trial

Uniform Civil Procedure Rules 1999 (Qld), r 686, r 687

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21, cited
Banks v Goodfellow (1870) LR

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Campbell v Campbell [2023] QCA 3
Case
[2023] QCA 3
Decision Date

CaseChat Overview and Summary

In the case of Campbell v Campbell, the appellant, a daughter of the deceased, sought to challenge the validity of her father’s last will, contending that he lacked testamentary capacity due to his dementia. The deceased had made several prior wills, and the central issue before the court was whether the deceased had the requisite mental capacity to execute the last will. The trial court found in favour of the deceased's widow, who was tasked with proving the will in solemn form. The appellant’s appeal focused on the deceased's testamentary capacity, particularly whether his mild cognitive impairment or mild dementia precluded such capacity.

The legal issues revolved around the application of the Banks v Goodfellow test to determine the deceased's testamentary capacity at the time he made the last will. The primary judge considered the deceased's awareness of his estate, the nature of his bequests, and his ability to evaluate and discriminate between the claims of potential beneficiaries. The appellant argued that the deceased's dementia was a significant factor that should have precluded a finding of testamentary capacity. Additionally, the appellant questioned the reliability of the expert evidence provided by a psychiatrist engaged by the widow's solicitors, suggesting that there were deficiencies in the expert's report.

The court found that the primary judge did not err in applying the Banks v Goodfellow test. The deceased's mild cognitive impairment did not necessarily negate his testamentary capacity. The primary judge considered the specific evidence, including the expert's opinion, and found that the deceased was capable of making informed decisions when he executed the last will. The court also noted that the appellant failed to use available documents and opportunities to challenge the expert's evidence during the trial. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal and the application.

Orders

Orders of the court

1. Application for leave to adduce further evidence refused.

2. Appeal dismissed.

3. The appellant must pay the respondent’s costs of the application and the appeal to be assessed.

Background

Background to the litigation

The appellant applies for leave to adduce further evidence on the hearing of the appeal which is supported by the appellant’s affidavit sworn on 22 August 2022. The appellant had prepared a bundle of documents before the trial which she referred to as the defence trial bundle which the appellant believed from her communications with Mrs Campbell’s lawyers had been included in the trial bundle. The appellant did not discover the omission of some of these documents from the trial bundle until after the trial and now seeks this Court to receive those documents as evidence relevant to the grounds of appeal.Background facts The following summary of uncontested background facts is taken from [21]-[56] of the reasons. Mr Campbell had married Janice in about 1970. Janice is the mother of Ms Rickertt born in about 1971, the appellant born in 1981 and Stewart born in about 1988. Mr Campbell and Janice separated in February 1996 and later divorced. Mr Campbell had begun dating Joan in 1993 when he was 42 years old and Joan was about 34 years. She was divorced with four children. In 1996 Mr Campbell went to live with Joan for a short period and then he moved to his own flat in Tingalpa. Joan bought a home at Capalaba after 1997 and Mr Campbell went to live in a small post-war house (described as the shack in [28] of the reasons) on a property at Chandler that was a short drive from Joan’s home at Capalaba. The Chandler property may have been purchased in the names of Mr Campbell and Joan and later transferred into Mr Campbell’s name. Mr Campbell and Joan became engaged in 2000 and on 26 July 2008 they married during a party at the shack. Mr Campbell and Joan had signed a pre-nuptial agreement on 24 July 2008 that listed their respective assets with values. Mr Campbell’s assets included real property, a bank investment account and superannuation funds. Mr Campbell made a will on 5 September 2008 in which he made a specific bequest of $50,000 to one of his sisters (the sister) and gave Joan the right to reside in any home in which he normally resided for 12 months after his death with a right to purchase it at market value at the end of that time. The residue of his estate was left to such of Joan and his three children who survived him for 30 days in equal shares. The three children were appointed as executors and trustees. Graham and Joan had no children together and lived separately for most of their relationship with Joan spending a few days a week with Mr Campbell at the shack and the balance at her Capalaba home. There was some dispute about when they finally separated, but their divorce was made final on 26 September 2015. There was a matrimonial property dispute between them in the Federal Circuit Court involving a challenge by Joan to the pre-nuptial agreement. Mr Campbell had met Mrs Campbell through his close friend Mr Congram. Mrs Campbell had married Mr Congram in about 1997. Mr Campbell and Joan had a close social relationship with Mr Congram and Mrs Campbell. Mr Congram died in November 2013 from a disease first diagnosed in 2010. Mr Campbell had been visiting Mr Congram and Mrs Campbell while Mr Congram was ill and, after Mr Congram’s death, Mr Campbell maintained his contact with Mrs Campbell and they began a relationship in August 2014. Mrs Campbell came to live with Mr Campbell in October 2014. They became engaged at Christmas 2014.

Evidence

Evidence Before The Court

The primary judge set out his conclusions at [202]-[206] of the reasons. On the basis of all the evidence and giving weight to the more precise recollections of Mr Speakman and Ms Pryce, the primary judge concluded (at [206]) that the deterioration of Mr Campbell’s cognitive function was material by about July 2017. In doing so, the primary judge accepted (at [206]) Professor Byrne’s opinion that it is not appropriate to treat radiological reports as diagnostic tools for cognitive impairment or dementia. Ultimately the primary judge was satisfied of the matters set out at [211] of the reasons that allowed for the conclusion that the last will accurately reflected Mr Campbell’s intentions formed at a time when he could make fully informed decisions. Those matters were as follows. When Mr Campbell gave his instructions for the last will and executed it, he was aware and appreciated the significance of making the last will and aware, at least in general terms, of the nature, extent and value of his estate and that those assets were of substantial value. Mr Campbell was also aware of those who might reasonably be thought to have a claim on his estate and the basis for, and the nature of, their different claims and he was able to evaluate the strengths of the respective claims and discriminate between them.Application to adduce further evidence To the extent the appellant seeks to adduce documents that were already in evidence before the primary judge, the application is unnecessary. In respect of the balance of the documents which the appellant now seeks to adduce by way of further evidence, she faces insurmountable difficulties, when she had the opportunity either to pursue her request for the documents to be included in the trial bundle which became exhibit 1 or to use the documents for the purpose of cross-examination of Professor Byrne at the trial and failed to do so. It is unfortunate that the appellant was under the misapprehension that before the trial she could request Professor Byrne to do a supplementary report based on her compilation of documents set out in her letter dated 27 September 2021 to Professor Byrne. Some of the documents which the appellant provided to Professor Byrne were the appellant’s review of the expert report, the defence’s updated chronology and the defence’s medical summary 1998-2019. Professor Byrne did not respond to this letter. As the cross-examination by the appellant of Professor Byrne at the trial shows, the appellant did not cross-examine Professor Byrne in any detailed way to pursue those aspects of Mr Campbell’s history which she considered Professor Byrne had failed to take into account sufficiently in reaching his opinion. The appellant therefore cannot succeed on this application for leave to adduce further evidence of documents that were available to her at the trial and which she did not seek to use at the trial.Grounds 1 and 3 The reference to Ryan in ground 1 should more properly be a reference to the leading authority of Banks v Goodfellow. Grounds 1 and 3 can therefore be dealt with together in terms of whether the primary judge erred in law and in fact in applying the test in Banks v Goodfellow to the question of whether Mr Campbell had testamentary capacity.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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