Greer v Greer

Case [2021] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:  Greer v Greer [2021] QCA 143
PARTIES:  MARK CHRISTOPHER GREER
(appellant)
v
STUART JOSHUA GREER
(respondent)
FILE NO/S:  Appeal No 573 of 2021
SC No 3690 of 2018
DIVISION:  Court of Appeal
PROCEEDING:  General Civil Appeal
ORIGINATING  Supreme Court at Brisbane – Unreported, 18 December 2020
COURT:  (Dalton J)
DELIVERED ON:  16 July 2021
DELIVERED AT:  Brisbane
HEARING DATE:  21 May 2021
JUDGES:  Sofronoff P and Bond JA and Wilson J
ORDERS: 
1.  The appeal is dismissed.
2.  The parties are directed as follows:

a.

the parties must file and serve submissions on the orders which should be made in respect of costs within 7 days of the date on which the reasons for judgment are published;

b.

the respective submissions must not exceed four A4 pages; and

c.

the Court will determine any issues which arise in relation to costs on the papers.

CATCHWORDS: 

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the testator made a will during a meeting with his daughter in 2017 – where the 2017 will revoked a 2001 will which had provided that testator’s youngest child, the respondent, was to be the executor and sole beneficiary of his estate – where the 2017 will divided the estate equally between the daughter and the testator’s other two children and recorded the testator’s intention to make no provision out of his estate for the respondent, his wife or their children – where the primary judge found that testator did not have testamentary capacity at the time of making the 2017 will – whether the primary judge

erred in applying the test as to testamentary capacity, erred in relying on particular expert opinion evidence and made factual errors affecting the finding as to lack of testamentary capacity

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – EVIDENCE – ONUS OF PROOF AND WEIGHT OF EVIDENCE – onus of proof considered – standard of proof considered – where the evidence displaced any presumption of testamentary capacity – where the appellant as proponent of the 2017 will failed to discharge the onus of proof

EVIDENCE – ADMISSIBILITY – OPINION EVIDNCE – EXPERT OPINION – GENERALLY – where the primary judge accepted expert opinion evidence which may have been partially dependent upon facts not proved in evidence – where the primary judge was not prepared to find that the facts not proved in evidence would have affected the expert opinion evidence – whether, having regard to the conduct of the trial and the absence of relevant cross-examination, the primary judge made an error in accepting such evidence

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21,
followed
Baker v Batt (1838) 2 Moo PCC 317; [1838] EngR 643, cited
Banks v Goodfellow (1870) LR 5 QB 549, followed
Barry v Butlin (1838) 2 Moo PCC 480; [1838] EngR 1056,
followed
Briginshaw v Briginshaw (1938) 60 CLR 336;…

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AGLC
Greer v Greer [2021] QCA 143
Case
[2021] QCA 143
Decision Date

CaseChat Overview and Summary

In the matter of Greer v Greer, the respondent, a son of the deceased, sought to challenge the validity of a will made by his father in 2017. The will, which was made during a meeting with the deceased's daughter, revoked a 2001 will that had named the respondent as the sole beneficiary of the estate. The 2017 will divided the estate equally among the daughter and the deceased's other two children and excluded the respondent, his wife, and their children from the estate. The primary judge found that the deceased did not have testamentary capacity at the time of making the 2017 will and upheld the validity of the 2001 will.

The legal issues before the court involved determining whether the primary judge erred in her evaluation of the evidence concerning the deceased's testamentary capacity and whether she misapplied the "rational on its face" standard as articulated by the Court of Appeal in Frizzo v Frizzo. The court had to consider whether the deceased's mental state at the time of executing the 2017 will was such that he lacked testamentary capacity and if the will was rational enough to warrant a presumption of validity.

The court held that the primary judge's assessment of the evidence regarding the deceased's capacity was not flawed. Although the deceased exhibited signs of distress and confusion, particularly in interactions with Ms Watts, the primary judge concluded that these were not indicative of his general state of mind at the time of executing the will. The court also found that the primary judge did not err in applying the "rational on its face" standard. The court noted that while the will did contain provisions that could be considered unusual, the primary judge was correct in concluding that the respondent had discharged the onus of proving the deceased lacked testamentary capacity.

The appeal was dismissed, and the parties were directed to adhere to the primary judge's decision, thereby upholding the validity of the 2001 will.

Orders

Orders of the court

1.

The appeal is dismissed.

2.

The parties are directed as follows:

Background

Background to the litigation

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Evidence

Evidence Before The Court

I turn first to summarise the way in which the primary judge evaluated the evidence relevant to testamentary capacity. The primary judge’s evaluation of the evidence relevant to testamentary capacity The primary judge first expressed her conclusion that four named witnesses could not assist her at all with the question of capacity. Of those four, it is relevant to mention only Mr Rouse and Ms Caur. They had given some evidence concerning an occasion in which the testator had been observed hallucinating. The primary judge found that the hallucinations would have been brought about by a urinary tract infection and were not representative of the testator’s general state of mind and had no bearing on his state of mind at the time he executed the second will. The primary judge then dealt with the evidence of Ms Watts, an aged care worker with some experience of aged patients with dementia who had known the testator through their church for about ten years. She had visited him at the respite care centre. She described him as being very distressed. He did not seem to understand that he was in respite care, but seemed to think he had been permanently put into a nursing home. He was angry with the respondent and his wife. He said he had given all his money to the respondent and now he wanted it back. He blamed the respondent for not building the granny flat. He told Ms Watts that he wished to contact Karyn and Ms Watts organised for that to happen. Although the primary judge found that some of Ms Watts’ evidence concerning her interactions with the testator tended to raise some suspicion as to his proper mental functioning, the primary judge concluded that Ms Watts’ evidence was not detailed enough to assist her to form conclusions about whether the testator had testamentary capacity. The primary judge next considered evidence she received from Ms Privitera, a social worker who had a degree in psychology and who had worked at Queensland Health in a dementia unit for three years. Ms Privitera came into contact with the testator after Karyn contacted Caxton Legal Centre. Ms Privitera did not flag any concern in relation to the testator’s capacity. Ms Privitera spoke to the testator on 1 March 2017 by telephone and made an unscheduled visit to him that afternoon when she attended the respite care facility to see another client. She thought he seemed very frail, but did not have concerns for his mental acuity. Ms Privitera had him sign a very general form of authority to authorise Caxton Legal Centre to communicate on his behalf. He admitted to having memory problems and being frustrated at not being able to remember things. He could not remember the address of the Riviera Court home where he was living with the respondent and his family. He was able to tell Ms Privitera the names of his four biological children. The primary judge did not attribute any significant weight to Ms Privitera’s evidence, noting that she had never attempted to assess whether or not he had capacity to make a will, and, further, that when the information Ms Privitera had obtained from the testator that morning was analysed, it contained several errors, none of which Ms Privitera would have had any reason to recognise as errors.

Decision

Reasons for decision

The proposition that the primary judge made the alleged error of law cannot be made good. Conclusion The first ground of appeal fails. The fourth ground of appeal The fourth ground of appeal was that the primary judge made an error of law as to the meaning of the “rational on its face” standard as enunciated by the Court of Appeal in Frizzo v Frizzo. The appellant’s argument suggested that the primary judge’s approach to the “rational on its face” standard enunciated in Frizzo v Frizzo dealt inconsistently with the question of whether regard should be had to extrinsic circumstances as well as the text of the will. The “rational on its face” standard was a reference to the circumstances in which the presumption of testamentary capacity would arise, as to which see [41] above. The relevant part of the primary judge’s reasons was as follows: “The 2017 will appears to be duly executed on its face. [Karyn’s] evidence was that it had been duly executed. There was no evidence to contradict this. I find that the 2017 will was validly executed. The [appellant] defendant submitted that the 2017 will was also rational on its face, so that it had discharged the prima facie onus on it of establishing a valid will. I am not entirely sure that I accept the proposition that the 2017 will was rational on its face. It favoured three of the testator’s five children, mentioned a fourth [the respondent] adversely, but did not mention – and did not mention the fifth child, [Stephen]. It made a gift to [Karyn’s] husband, which even she thought odd, and it appointed the testator’s son [the appellant] executor of the will when he had had almost no meaningful relationship with the testator. The [appellant] defendant would, of course, argue that these provisions were rational, having regard to what he says was [the respondent and his wife’s] departure from the deed of arrangement they had reached with [the testator] as to his living arrangements. It seems to me that to illustrate rationality in that way, the [appellant] defendant is straying well into contentious evidence and is a long way from the description ‘rational on its face’ in Frizzo. I need not explore this question further, because even if the [appellant] defendant does establish a prima facie presumption of validity, I am of the view that the [respondent] plaintiff has discharged the onus on it to show that [the testator] did not have capacity at the time he made the 2017 will.” The concession was properly made. The effect of the primary judge’s reasons was that she proceeded by way of an assumption that the appellant had established a prima facie presumption of validity. It is unnecessary to consider the fourth ground of appeal further. I observe parenthetically that the passage quoted does reveal that the primary judge made an error of law, but it was an error which favoured the appellant. In the last paragraph of the quote, the primary judge stated: “I am of the view that the [respondent] plaintiff has discharged the onus on it to show that [the testator] did not have capacity at the time he made the 2017 will.” Much later in her reasons, after her analysis of the evidence, she concluded: “I am persuaded that, on the balance of probabilities, [the testator] did not have testamentary capacity when the 2017 will was executed.”

Ratio Decidendi

Legal Principle Established

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