Sullivan v Greig

Case [2023] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

Sullivan v Greig [2023] QCA 240

PARTIES:

LINDA ROSE SULLIVAN
(appellant)
v
VALERIE MAY GREIG
(respondent)

FILE NO/S:

Appeal No 6797 of 2023
SC No 14749 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2023] QSC 97 (Williams J)

DELIVERED ON:

28 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2023

JUDGES:

Flanagan and Boddice JJA and Martin SJA

ORDERS:

1.   The appeal be dismissed.

2.   The appellant pay the respondent’s costs of the appeal, to be assessed on the standard basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – EVIDENCE – GENERALLY – where a pro-forma Will kit dated 15 November 2021 appointed the respondent executor and named her as the sole beneficiary of the deceased’s estate – where the Will was dated one day prior to the deceased’s death – where the deceased was suffering a terminal illness – where the deceased and the respondent were close friends for 36 years – where the appellant was the only daughter of the deceased – where the appellant’s application seeking orders pronouncing against the force and validity of the Will, together with a grant of Letters of Administration on Intestacy in favour of the appellant, was unsuccessful – where a grant of Letters of Administration with the Will was made to the respondent – where, on appeal, the appellant contends the trial judge erred in finding the respondent and the witnesses to the execution of the Will were honest and reliable witnesses – where those evidentiary findings informed the trial judge’s findings as to testamentary capacity and due execution of the Will – whether the trial judge’s finding that the deceased knew and approved of the contents of the Will was consistent with the preponderance of evidence – whether the deceased had testamentary capacity at the time of execution of the Will

Banks v Goodfellow (1870) LR 5 QB 549; [1870] UKLawRpKQB 74, considered
Campbell v Campbell[2023] QCA 3, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

COUNSEL:

The appellant appeared on her own behalf
R T Whiteford for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Shine Lawyers for the respondent

  1. FLANAGAN JA:  I agree with Boddice JA.

  2. BODDICE JA:  By an amended originating application filed on 28 February 2022, the appellant sought orders pronouncing against the force and validity of the Will of Janita Rose Sullivan, deceased (the deceased), dated 15 November 2021 (the Will), together with a grant of Letters of Administration on Intestacy in favour of the appellant.

  3. Following a two-day trial, the learned trial judge pronounced for the force and validity of the Will.  Orders were made granting Letters of Administration of the deceased’s estate, with the Will, to the respondent.

  4. The appellant appeals those orders.  At issue is whether the trial judge’s findings that…

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Sullivan v Greig [2023] QCA 240
Case
[2023] QCA 240
Decision Date

CaseChat Overview and Summary

In this case, the appellant, who is the deceased’s daughter, challenges the validity of her mother’s Will, which was executed one day before her death and names the respondent as the sole beneficiary. The appellant claims that the deceased lacked testamentary capacity at the time of making the Will due to her terminal illness and recent stroke, and that the Will does not provide for her. The court must decide whether the trial judge’s findings regarding the deceased's testamentary capacity and the validity of the Will were consistent with the evidence presented.

The court was tasked with determining whether the deceased had testamentary capacity at the time of making the Will, and if the Will accurately reflected her intentions. The central issue was whether the trial judge correctly assessed the evidence and made the appropriate findings regarding the deceased’s capacity and the witnesses' reliability. The court examined the medical evidence, the circumstances surrounding the execution of the Will, and the testimonies of the witnesses to the Will.

The court found that the trial judge’s assessment of the witnesses' reliability and the deceased’s testamentary capacity was consistent with the evidence. The court noted that while the deceased had medical conditions and was under the influence of pain medication, the uncontradicted evidence from the respondent and the witnesses indicated that the deceased understood the nature and effect of making a Will and knew what she was doing. The court concluded that the deceased had sufficient capacity to meet the Banks v Goodfellow test and to make a valid Will. The court also noted that the deceased’s decision to leave her estate to the respondent was rational, given their long-standing friendship and the deceased’s strained relationship with the appellant.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal. The court upheld the trial judge’s findings that the deceased had testamentary capacity at the time of making the Will and that the Will was valid. The court found no error in the trial judge’s assessment of the evidence and the reliability of the witnesses.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be assessed on the standard basis.

Background

Background to the litigation

The appellant appeals those orders. At issue is whether the trial judge’s findings that the deceased had testamentary capacity at the time of execution of the Will and that the deceased knew and approved of the contents of the Will were consistent with the preponderance of admissible evidence.Background The deceased was born in 1962 and died on 16 November 2021. She was survived by her only child, the appellant, who was born in 1981. The respondent had been the deceased’s friend for over 30 years. The deceased left her small estate, valued at approximately $75,000, entirely to the respondent. Its major asset was a small acreage property at South Nanango, purchased in 2019. The deceased had lived on the property in a shipping container, without electricity. Her only companions were a horse, some chickens and a cat. The deceased and the appellant had not been close for some time. They had not physically had contact for approximately four years prior to the deceased’s death. The deceased was diagnosed with lung cancer in about mid-2021. She advised the respondent of that diagnosis. She did not advise the appellant. The deceased also told Julie Saunders (Saunders) of that diagnosis. Saunders had been the real estate agent involved in the purchase of the property at South Nanango. They had become friends following that purchase. As a consequence of COVID-19 border restrictions, the deceased and the respondent did not have physical contact after the purchase of the property at South Nanango. They did, however, have daily telephone contact. On 13 November 2021, the deceased was admitted to hospital after suffering an ischemic stroke.The Will The Will was in the form of a pro-forma Will kit. The writing was completed by Saunders. That writing named the respondent as sole executor and sole beneficiary of the deceased’s estate. A separate document contained instructions for the care of the deceased’s animals (animal instructions sheet). The deceased signed the animal instructions sheet and executed the Will, in hospital, on the morning of 15 November 2021. Saunders and a friend of Saunders, Rae Burke (Burke), signed as witnesses.Claim The appellant claimed that the Will was not signed by the deceased, and was not rational on its face as there was no provision for the appellant and no explanation within it for that omission. The appellant also claimed the deceased did not possess testamentary capacity on 15 November 2021, as she was suffering from metastatic cancer which had spread to her brain; had suffered a stroke on 13 November 2021; had a diagnosed lesion in the left frontal lobe in keeping with metastatic disease; had very subtle hyperdensity within the distal right M1 segment which can create a lack of insight; was noted to be confused and not to have capacity to consent to and/or refuse medical treatment; and had been prescribed significant pain medication. By way of defence, the respondent denied the Will was irrational because the deceased did not have a close relationship with the appellant and the appellant was not a natural object of the deceased’s testamentary bounty, whereas the respondent was the deceased’s long-standing and supportive friend and was the natural object of the deceased’s testamentary bounty. Further, the deceased had testamentary capacity at the time the Will was executed on the morning of 15 November 2021.

Evidence

Evidence Before The Court

The appellant relies on five grounds of appeal:“1.That the primary Judge erred in holding that the deceased did have testamentary capacity at the time the Will was executed when the evidence did not establish the deceased met the Banks v Goodfellow test;2.That the primary Judge failed to give adequate weight to the medical evidence in relation to capacity;3.That the primary Judge erred in having relied on irrelevant evidence;4.That the primary Judge erred in finding that the deceased knew and approved of the contents of the Will;5.That the primary Judge erred in finding the respondent, Julie Saunders and Rae Burke as honest and reliable witnesses by failing to make a detailed and careful analysis of the evidence.”EvidenceMedical/Allied Health The deceased’s medical records revealed her cause of death as metastatic adenocarcinoma of the lung, with other significant causes being a stroke (duration “days”) and smoking. The deceased’s doctor, Dr Matthew Mazurka, completed the notification of death documentation. Relevantly, he recorded the deceased had been admitted on 13 November 2021 due to worsening symptoms and new neurological status. The clinical notes for that admission recorded she had been noted to have facial droop, slurred speech and described left hand altered sensation intermittently for a few days, with weakness/clumsiness onset the previous afternoon and worse that morning. At that time, it was resolving, but not at baseline. She had no chest pain. Her medical history was noted as metastatic lung adenocarcinoma for which she had been on chemotherapy, but it had ceased. She also had recent pneumonia. Oral examination revealed she was speaking in phrases, but had left facial droop. The treating doctor’s impression was recorded as multi-system pathology in the context of metastatic cancer, with the deceased moving to palliative care, but not at end stage. Other medical records revealed that the deceased was admitted to hospital on 13 November 2021 at 11.32 am, after being transported by ambulance. Her presenting problem was shortness of breath, coughing and clubbed fingers. On the afternoon of 13 November 2021, the deceased underwent a CT scan. It revealed an occlusion of the distal right M1 segment, with a 13 x 11 millimetre enhancing left frontal lobe metastatic lesion. There were also multiple bilateral pulmonary masses in her lungs in keeping with known pulmonary malignancy. Prior to that admission, the deceased had been referred for palliative care on 26 October 2021. An email from the palliative care coordinator dated 5 November 2021 recorded that she had met with the deceased that day and the deceased’s main issues were shortness of breath and a persistent cough. It noted the deceased fatigued quickly and had requested home oxygen. The email recorded the deceased lived alone with some support from a neighbour and friends; she lived in a shipping container with no electricity and no bathroom; she had a chemical toilet and a friend took her to Nanango every couple of days where she showered in a public bathroom; the deceased had no “EPOA/AHD/Will”, although she recently got a Will kit; she wanted to remain at home as long as possible; and that the deceased was very attached to her cat and horse, having made arrangements for the cat to be rehomed with a neighbour and enquiries to find a home for her horse.

Decision

Reasons for decision

By way of counterclaim, the respondent alleged the deceased made the Will, which was duly executed pursuant to the Succession Act 1981 (Qld). The respondent claimed relief in the form of a pronouncement for the full force and validity of that Will and for probate to be granted to the respondent as sole executor.Primary decision The trial judge found that having regard to the contents of the hospital records of the deceased’s admission in the period from 13 to 15 November 2021, there was sufficient doubt about her capacity to require the respondent to prove the Will in solemn form. The trial judge accepted the evidence of both Saunders and Burke that the deceased had signed the Will on 15 November 2021, in their presence, prior to each affixing their signature to the Will as witnesses. The trial judge accepted Saunders’ evidence that Saunders prepared a separate sheet of paper with instructions for dealing with the deceased’s horse and cat and that the deceased affixed her signature to it prior to affixing her signature to the Will. The trial judge also accepted that the Will had been handwritten by Saunders, based on instructions previously given by the deceased on several occasions, since her diagnosis of lung cancer and that prior to affixing her signature to the Will, Saunders had started to read the Will to the deceased, who interrupted Saunders saying, “[the respondent] is the executor and beneficiary”. The trial judge found that notwithstanding the deceased’s medical conditions and the administration of pain medication, the deceased did have testamentary capacity at the time of execution of the Will. In support of that finding, the trial judge observed that:(a)the deceased had a rational reason to make a Will at that time, as she was aware her health was declining;(b)the deceased had two people to consider in making her Will, the applicant and the respondent;(c)the deceased had only a few assets to be considered;(d)the gift of the deceased’s estate to the respondent was rational, having regard to their close friendship of approximately 36 years and the deceased’s strained relationship with the appellant;(e)the uncontradicted evidence of the respondent, Saunders and Burke was that at the relevant time the deceased knew and understood she was making a Will and knew what she was doing, with the deceased’s wishes as reflected in the Will being consistent with what she had expressed on a number of occasions previously to Saunders; and(f)that on the morning of 15 November 2021, the deceased had the ability to understand that a Will was being made, an ability to understand what her assets were, an ability to know who she should consider making provision for in her Will and an ability to weigh and evaluate claims on her estate. The trial judge found that whilst it may be “open on the evidence that the deceased’s cognition was impaired to some extent at the specific times recorded in the medical notes, on all of the evidence the deceased had sufficient capacity at the time that the Will was executed to meet the requirements of the Banks v Goodfellows test and to make a valid will.” Accordingly, testamentary capacity had been proven.

Ratio Decidendi

Legal Principle Established

There were two documents; one regarding what would happen to the animals and the Will. Burke believed it was a full Will kit, with the instructions. The deceased signed first. She did not need assistance to sign. Burke believed the deceased signed the animal instructions sheet first. The deceased’s hand was not shaking; it was reasonably steady, perhaps with a slight tremor. There were no facial features consistent with a stroke. She did not have any issue pushing the pen away. The deceased was also able to use her core to sit up without slumping once she had been sat up.Consideration As Saunders’ evidence is relevant to many of the grounds of appeal, it is convenient to first deal with ground 5.Ground 5 The appellant submits the trial judge erred in finding the respondent, Saunders and Burke honest and reliable witnesses, by failing to make a detailed and careful analysis of the evidence. In considering this ground, there are a number of key features of the evidence relevant to the acceptance of the reliability and honesty of these witnesses. First, nothing in the evidence supported a finding of collusion between the respondent and Saunders in relation to the circumstances of the execution of the Will. Whilst the appellant submits there was inconsistency as to the frequency and dates of communications between the respondent and Saunders in relation to the Will and Saunders gave evidence that, prior to execution of the Will she had sought details of the respondent’s name and address, those circumstances were not relevant to the central issue, namely, the deceased’s capacity and functioning at the time of execution of the Will on 15 November 2021. Each gave evidence which was materially consistent in respect of that central issue, as did Burke. Any inconsistencies on other issues were explicable by reason of the fact that honest witnesses often have differing recollections of events some time ago. Second, Saunders’ evidence in relation to the circumstances in which the Will was prepared and executed remained consistent in all material aspects. Contrary to the appellant’s submissions, Saunders did give evidence explaining why the Will kit option was pursued; the deceased had rejected the options of solicitors or the Public Trustee, having regard to the constraints of time and cost. Third, Saunders gave a logical explanation for why she chose to purchase a Will kit on 4 November 2021, notwithstanding there being no specific request by the deceased to do so. The deceased did not have an ability to drive and her condition was deteriorating towards its terminal phase. Fourth, the progress notes independently supported Saunders’ account of purchasing the Will kit on 4 November 2021 and of discussing it with the deceased. The palliative care note for 5 November 2021 recorded the deceased stating she recently “got a Will kit”, consistent with the deceased having knowledge of its purchase. Fifth, the community nurse note for 11 November 2021, specifically records that the deceased had reported that completion of a Will was “in progress”.