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 2020DIVISION:
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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- AGLC
- Campbell v Campbell [2023] QCA 3
- Case
- [2023] QCA 3
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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