Greer v Greer[2021] QCA 143

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Bond JA and with the orders proposed.
2. [2]
   BOND JA:

Introduction

3. [3]
   Kevin Greer (the testator) died on 1 July 2017, aged 80.
4. [4]
   He and his first wife had long since divorced and his second wife, Marie Greer (Marie), had died in December 2015.  He was survived by –

   1. (a)
      the three biological children of his first marriage: Lisa Rosier (Lisa), Karyn Eggleton (Karyn) and Mark Greer (the appellant); and
   2. (b)
      the two children of his second marriage: his adopted son Stephen (who had been estranged from the testator for over 17 years and played no part in any relevant events), and his biological son Stuart Greer (the respondent).
5. [5]
   The testator and Marie had made wills on 15 May 2001, more than 14 years before her death and more than 16 years before his death.  Under the terms of those wills, they left their estate to each other, and if either failed to survive the other, to their son, the respondent.  They also made enduring powers of attorney in the respondent’s favour.  As Marie had predeceased the testator, if the testator’s 2001 will (the first will) was his true will, then the respondent would be the executor and sole beneficiary of the testator’s estate.
6. [6]
   After Marie’s death in December 2015, the testator continued to live in their marital home at Dunamis Court, Cornubia.  For some of the period after Marie’s death, Lisa had lived with and cared for the testator at Dunamis Court.  The respondent and his wife and their two children lived about 3 kilometres away at 4 Timor Avenue, Loganholme.
7. [7]
   Although there had been some discussions about where the testator would live in the longer term, they seem to have progressed no further than a general intention that he would live with the respondent and his wife and family on acreage.  Ultimately that intention was formalised by a “deed of arrangement” dated 10 February 2016, between the testator on the one hand and the respondent and his wife on the other, which recorded their agreement that:

   1. (a)
      the testator would transfer title to his Dunamis Court home to the respondent and his wife for natural love and affection;
   2. (b)
      the respondent and his wife would sell the Dunamis Court home and apply the proceeds to construct a granny flat on an acreage property they had contracted to purchase at 74 Solway Crescent, Carbrook, with any balance to be used during the testator’s lifetime for his maintenance, general care and living expenses, but otherwise to belong to them; and
   3. (c)
      the testator would be entitled to live with the respondent and his wife on the Solway Crescent property until the granny flat was built and ready to move into and thereafter he would be entitled to live in the granny flat for life or until he no longer wished to live there.
8. [8]
   Events did not occur as provided for by the deed of arrangement.  In February 2016, the testator did transfer his Dunamis Court property to the respondent and his wife.  However, their contract to acquire the Solway Crescent property had been subject to the sale of their house at 4 Timor Avenue, and when their contract to sell that property fell through,  they did not complete their proposed purchase of the Solway Crescent property.  The broad course of events thereafter (which the respondent said occurred with the testator’s agreement) was –

   1. (a)
      in around mid to late July 2016, whilst the respondent and his wife were still living at their house at 4 Timor Avenue, there not being space in that home for the testator, they rented the downstairs part of a neighbour’s vacant house at 6 Timor Avenue and the testator moved from the Dunamis Court property into the rented property;
   2. (b)
      in August 2016, they sold the Dunamis Court property and applied the monies towards the purchase of a two-storey house at 8 Riviera Court, Cornubia, intending that the testator would live in the ground floor part of that property; and
   3. (c)
      after that sale and purchase was completed, the testator continued living in the rented property at 6 Timor Avenue, whilst some structural repair work was being done on the Riviera Court property, eventually moving into the ground floor of the Riviera Court property by the end of November 2016.
9. [9]
   The respondent’s wife had given up work in February 2016 to assist with the testator’s care.  The respondent had observed that during the period in which rectification work was being done in the Riviera Court property, the testator had started to deteriorate.  The respondent and his wife found that he needed a great deal of care.  He had been assessed to need level 4 care and had paid carers.  By the time the testator moved into the Riviera Court property in November 2016 (and after having been hospitalised in the Logan Hospital for a week), the respondent had observed that the testator’s cognitive and physical function was declining quite rapidly.  The testator had been hospitalised for a week in mid-November 2016 in the Logan Hospital, just prior to moving into Riviera Court.  In December 2016, the testator had a fall and spent a week and a half in the Redlands Hospital.  He had a second fall in January 2017, which resulted in hospitalisation at Logan Hospital between 19 January 2017 and 10 February 2017.  At that point, a decision was made to put him into a respite care facility operated by TriCare at Pimpama.  Originally, the move was intended to be for only two weeks, but the respondent sought to extend the stay when his son broke his leg, which reduced the extent of time that the respondent’s wife would have been able to devote to looking after the testator.
10. [10]
    The testator greatly resented being placed into the respite care facility and was upset that the respondent and his wife had not built him a granny flat as agreed.  He reached out to complain to his daughter Karyn, from whom he had been estranged for more than a year because of a family dispute concerning her potential share in his estate.  She visited him at the respite care facility on 26 February 2017, and she gave evidence that he told her he no longer wanted the respondent to have his enduring power of attorney and he wanted to change his will.  She said that she told him the first thing to do was to remove the respondent as attorney.  She spoke to the manager of the respite care facility about that and he told her it could not be done until an assessment of capacity had been performed by a doctor.  She found out that the facility doctor would not do the assessment because he did not know the testator well enough.  On 1 March 2017, she sought to arrange an assessment with Dr Mills, the testator’s GP, who told her that she would need to make another appointment in order for him to make that assessment.

11. [11]
    On 2 March 2017, knowing that no capacity assessment had yet been done, Karyn assisted the testator to make a further will (the second will) by purchasing a will kit, handwriting its terms into a template form during a meeting with the testator at the respite care facility, and arranging for its proper execution at the respite care facility.  Karyn gave evidence to the primary judge that she had no concerns about the testator’s mental acuity because she had no reason to have such concerns, yet she said in crossexamination that to her observation there was no change in the testator’s condition between 2 March 2017 and 10 March 2017, and in a contemporaneous document on 10 March 2017 she described the testator in these terms:

“Dad, has difficulty in maintaining cognitive conversation and recall.  He is terribly emaciated, extremely frail and very weak.  He is unable to care for himself and believes he ‘still can’.  He now requires a high level of nursing support.”

12. [12]
    The second will revoked the first will, appointed the appellant as executor, and, save for a specific bequest of a car to Karyn’s husband, left the entirety of the testator’s estate to Lisa, Karyn, and the appellant in equal shares.  The second will specifically recorded the testator’s intention that he made no provision out of his estate for the respondent, his wife or their children “as a result of their abandonment of me and their deceit relating to my finances.”  If the second will was the true will of the testator, its effect would be to reverse the long adhered to testamentary intention recorded in the first will.
13. [13]
    At the time the second will was executed, the testator was not a well man.  The list of his major medical problems was long.  It included ischaemic heart disease, postural hypotension, chronic lung disease, chronic pancreatic insufficiency, chronic euvolaemic hyponatraemia, osteoporosis, malnutrition, unintentional weight loss, and urinary and faecal incontinence.  He also suffered from depression and anxiety.  His daily medication included medication for blood clots, insomnia, malnutrition, postural hypotension, lung disease, strokes and heart attacks, depression or anxiety, pancreatic failure, and angina.  Critically, for present purposes, he suffered from a condition or conditions which adversely affected his cognitive function.  The nature and extent of his cognitive impairment and its impact on his testamentary capacity was the central matter of controversy at trial and before this Court.
14. [14]
    By a proceeding commenced by claim in April 2018, the respondent (as plaintiff in the proceeding) sought a grant of probate of the first will.  The appellant filed a caveat objecting to the grant of probate.  Having been named as executor under the second will, he was a counterclaiming defendant in the proceeding.  Amongst other things, the appellant’s defence in the proceeding propounded the second will, alleging that it revoked the first will and constituted the last true will of the testator.  By counterclaim, the appellant sought: a declaration of the invalidity of the first will and of the validity of the second will; a grant of probate of the second will; or, if the first will was upheld, an order that the respondent be removed as executor and replaced with an independent executor.  Part of the basis for the latter relief involved the appellant criticising the respondent’s conduct in relation to certain financial arrangements which had been made between the testator and the respondent, concerning the testator’s living arrangements.  Amongst other things, the appellant alleged the respondent had breached fiduciary duties owed to the testator.  The respondent contested those allegations in a pleaded reply and answer.

15. [15]
    Two questions were set down for separate determination pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (Qld): first, whether the testator had testamentary capacity at the time of execution of the second will; and second, whether the second will should be admitted to probate in solemn form.
16. [16]
    The primary judge heard evidence on 8, 9 and 10 December 2020, received written submissions from both sides in the following week, and gave an oral judgment at the end of that week on 18 December 2020.  Upon the balance of probabilities, her Honour found that the testator did not have testamentary capacity at the time he executed the second will and made a declaration accordingly.  She reserved the question of the costs of and incidental to the hearing to the Court which finally determined the proceeding.
17. [17]
    The appellant appeals from that decision to this Court and seeks orders to this effect:

    1. (a)
       the appeal be allowed and the orders made by the primary judge be set aside;
    2. (b)
       the second will be admitted to probate; and
    3. (c)
       the appellant’s costs of the appeal and the proceeding should be paid by the respondent, or indemnified out of the estate of the testator.
18. [18]
    The appellant’s amended notice of appeal raised four grounds of appeal.  I will deal with each separately, although not in the order advanced in the notice.  The first and fourth grounds suggest errors of law, so I will deal with them first.  The third ground suggests an error was made in relying on particular expert opinion evidence.  I will deal with that next.  The second ground suggests two factual errors must have affected the finding of testamentary capacity.  I will deal with that ground last.
19. [19]
    For reasons which follow, I conclude that all of the grounds of appeal fail.  The appeal should be dismissed.
20. [20]
    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

21. [21]
    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.
22. [22]
    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.
23. [23]
    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.
24. [24]
    Ms Bots was a young solicitor working for Caxton Legal Centre who accompanied Ms Privitera on the unscheduled visit on 1 March 2017.  She had made a file note of her meeting with the testator, but otherwise had no recollection of the meeting.  The primary judge considered the content of the file note, observing that although it recorded that the purpose of the visit was mostly to initially assess capacity, it also recorded that they did not have much time to talk to the testator.  Ms Bots made some notes for her own future conduct of the matter.  The first step was “mental/capacity assessment needed”.  Depending on the result of that, Ms Bots considered that the testator might be able to revoke his enduring power of attorney.  At the end of the file note, Ms Bots made notes for and against the question of the testator having capacity.  She noted that he understood her, responded appropriately and that he gave a consistent story.  She regarded those factors as being in favour of his having capacity.  As against, she recorded that he had forgotten the name of the suburb where the respondent and his wife had bought a home (this would have been the Riviera Court home) and the address of his former home (this would have been the Dunamis Court property) and that he had not recalled what year it was on the first visit.  She also noted that at times during their conversations, the testator stopped talking midsentence and lost his place.
25. [25]
    The primary judge evaluated Ms Bots’ evidence in this way.  She observed that Ms Bots was not assessing testamentary capacity.  While her evidence was relevant to that question, she did not investigate matters which would have been pertinent to testamentary capacity.  The primary judge concluded that Ms Bots’ appeared to have thought that the testator had capacity to revoke his enduring power of attorney, although she recognised that this needed to be formally assessed.  The primary judge observed that Ms Bots’ apparent view that the testator had capacity to revoke his enduring power of attorney was at variance with the medical evidence of Dr Roberts and Dr Fleury (as to which see [31] et seq below) and that she preferred the medical evidence to Ms Bots’ opinion.  The primary judge noted that Ms Bots’ interview had been rushed, and that she had made no attempt to test or challenge the information the testator gave her, or his apparent understanding and participation in the conversation.  She did not ask him any questions to see if he understood the nature and effect of the enduring power of attorney.  When Dr Fleury did so, it was apparent to Dr Fleury that he did not.

26. [26]
    The primary judge next noted that the appellant, Karyn and the respondent each gave evidence about the testator’s state of mind in and around March 2017.  She said that she approached their evidence with some appropriate scepticism because they all had not just a financial interest, but an emotional interest in the outcome of the litigation.  She found that none of them gave evidence to which she would attach great weight.
27. [27]
    As to the appellant’s evidence, the primary judge recorded the following:

    1. (a)
       He had had no contact with his father between the late 1960s and the late 1980s and between 2000 and 2015.  He saw his father in 2015 at Karyn’s wedding and again in January and May of 2016.  He did not go to Marie’s funeral or take any interest in how his father was being cared for after her death.
    2. (b)
       He had only brief telephone interactions with his father when he was in respite care in Pimpama.  Amongst general conversations, his father revealed his unhappiness at being in the respite care facility and blamed the respondent and his wife for putting him there.  He wanted to be “in his own place, not at [the respondent and his wife’s place] and not in a care facility.”  In those conversations, the appellant did not have any concerns as to the testator’s mental acuity.
    3. (c)
       He did have a conversation with his father on 2 March 2017, the date of execution of the second will.  Karyn rang him, passed the phone to the testator and said, “Dad wants to ask you a question.”  Then the testator asked the appellant to be executor of a new will.  He rang his father again that night and asked whether he definitely wanted him to be executor of the will, expressing what the primary judge concluded was understandable uncertainty given how little he had had to do with his father during his life.
    4. (d)
       One of the details the appellant related about his conversation with the testator demonstrated confusion on the part of the testator which was relevant to testamentary capacity.  The testator told the appellant not to tell his half-brother, the respondent, or his sister Lisa about the second will, because they had ripped him off.  The primary judge found the inclusion of Lisa in this direction to be odd because Lisa had lived with and cared for the testator after Marie had died and the second will made Lisa an equal beneficiary with the appellant and Karyn.
28. [28]
    As to Karyn’s evidence, the primary judge recorded the following:

    1. (a)
       Karyn gave evidence that prior to 2016 she had a good relationship with her father, but due to conflict in January 2016 she had been out of contact with him, until Ms Watts rang her from the respite care centre.  She telephoned her father and visited him the next day.  She gave evidence of conversations in which her father: explained his concerns about the respondent and his wife; apologised for their estrangement; sought her help; and told her that the respondent had an enduring power of attorney and he wanted that changed.
    2. (b)
       Karyn said the testator suggested changing his will when she visited him at the respite care facility.  In response, she bought a will kit and took it to the facility on 2 March 2017.  She said she asked the testator what he wanted to say and recorded his wishes in the will.  She did think it odd that her father insisted on her then husband having his car.  She says she protested, saying that the couple already had two cars and, in any event, they lived on a boat and had no garage, but her father was insistent.
    3. (c)
       She said that she had read the will back to her father and he had also read it.  She found two other residents of the respite care facility and had them witness the will correctly.
    4. (d)
       Her father told her that he did not want the respondent to know about the new will and, therefore, suggested she take it back to her home.  She did not think the testator was suffering from hallucinations or delusions.  The primary judge recorded Karyn’s evidence that she had “no concerns whatsoever” about the testator’s mental acuity, but thought that that was contradicted by the contemporaneous document dated 10 March 2017, in which she had made a complaint on her father’s behalf, to the public guardian and in which she stated her father:

“...had difficulty in maintaining cognitive conversation and recall.  He is terribly emaciated, extremely frail and very weak.  He is unable to care for himself, but believes he ‘still can’.  He now requires a high level of nursing support.”

5. (e)
   The primary judge noted that in cross-examination, Karyn agreed that the testator’s condition was the same on 2 March 2017 as it had been on 10 March 2017.

29. [29]
    As to the respondent’s evidence, the primary judge recorded that he was classed as the testator’s decision-maker under the enduring power of attorney at medical institutions which had treated the testator.  He gave evidence that the testator adored his two children, and had no contact with any other grandchildren.
30. [30]
    The primary judge then addressed the medical evidence.  It will be recalled that the primary judge had, earlier in her judgment, indicated that she preferred the medical evidence over the opinion of Ms Bots.
31. [31]
    Dr Roberts was a very experienced specialist physician and endocrinologist.  The primary judge recorded the following as to his evidence:

    1. (a)
       He had seen the testator at the Logan Hospital in January 2017.  He was aware that he had previous hospitalisations and that decisions needed to be made about his future accommodation.
    2. (b)
       An issue was whether or not the testator had capacity to make those decisions.  Dr Roberts said he comprehensively reviewed the testator and remained unclear about his “ability to make complex decisions”, so he asked Dr Fleury – who was a geriatrician – to examine him.
    3. (c)
       Dr Roberts was aware of “a long history of cognitive impairment so far as [the testator] was concerned”.  He said that the standardised testing used to assess this had shown a reduction in his cognitive abilities on successive admissions prior to January 2017.
    4. (d)
       Dr Roberts ordered a CT scan of the testator’s brain.  It showed severe, chronic small vessel ischaemic changes.  It also showed that the areas occupied by cerebrospinal fluid in his brain were larger than normal.  The primary judge then interpolated that Professor Byrne’s report explained that latter finding on the basis that the testator’s brain was atrophying, allowing the space occupied by cerebrospinal fluid to increase.
    5. (e)
       Dr Roberts thought that the small vessel ischaemic change was a finding that might be associated with cognitive impairment.  He said that the more changes, the more likely there would be cognitive impairment.
    6. (f)
       Dr Roberts said that the results of the Montreal Cognitive Assessment Tests (namely 13 out of 30 in August 2016, 17 out of 30 in November 2016 and 16 out of 30 in January 2017) were indications of moderately severe impairment of cognition.  He said that the testator had issues with memory and issues with executive functioning.  The latter term included the ability to take on board complex ideas, weigh up complex information, weigh up opposing ideas, pros and cons and make complex decisions.  As to his conclusions in January 2017, Dr Roberts said:

“The decision made by the whole treatment team, largely guided by the more expert opinion of the geriatrician, was that [the testator] could make decisions about accommodation, but not about other complex matters.”

7. (g)
   There was no improvement when the testator returned to the hospital later that year in March.
8. (h)
   On 6 March 2017, when the testator had returned to the Logan Hospital, Dr Roberts’ ward round notes show that he appeared confused.  He thought he was in Lismore.  He did not know his age, although he did know his date of birth.  He did not know what day it was.  He said he had four children, but could recall only two of their names.  He did not recall where he had been living recently.

32. [32]
    Dr Fleury was the geriatrician who Dr Roberts asked to see the testator.  The primary judge recorded the following as to her evidence:

    1. (a)
       Dr Fleury assessed the testator as having capacity for what she called lifestyle decisions, with the result that he could be discharged home with a level 4 package of care as a trial, but if this were to fail, he would need residential care.  She thought that he had “definite deficits”, but “perhaps they could be supported in the community”.
    2. (b)
       In January 2017, Dr Fleury noted that the testator was inconsistent in his desires about where to live.  One option was to apologise to the respondent and his wife.  Another was “going out bush”.  At times, Dr Fleury had difficulty working out whether the testator was talking about his daughter or his daughter-in-law.
    3. (c)
       On 8 March 2017, Dr Fleury was not able to take a coherent history as to the change in his thinking between wanting the respondent to act as his attorney in January and wanting Karyn or the appellant to do so in March.  The primary judge concluded that it was evident from Dr Fleury’s notes that Dr Fleury had difficulty understanding the testator’s thinking about this.  She assessed the testator as not having capacity to revoke his enduring power of attorney because he could not understand when an enduring power of attorney would operate to allow the attorney to make decisions and could not understand the effect of the decisions made by the attorney.  She tried to explain these matters to the testator, but he “quickly got muddled”.  By 8 March 2017, Dr Fleury had also revised her January view and no longer thought that the testator could live independently in the community, even with level 4 care.
33. [33]
    The final medical evidence to which the primary judge referred was that of Professor Byrne, who she described as a psychiatrist with a subspecialty in dementia.  The primary judge acknowledged that the fact that Professor Byrne had never examined the testator during his life gave rise to certain difficulties and disadvantages.  The primary judge expressed reliance on Professor Byrne’s clinical opinion that the testator was, as at the date of execution of the second will on 2 March 2017, suffering from mild to moderate dementia.  She observed his discussion of the test scores obtained in the Montreal Cognitive Assessment test, and noted that they were below the cut-off point for dementia.  She regarded the extent they were below the cut-off point to be significant.
34. [34]
    The primary judge also noted that Professor Byrne had relied on the neuroimaging which showed the testator had severe white matter ischaemic disease, which he considered to be the most common cause of vascular dementia in the developed world.  She aligned this evidence with that of Dr Roberts, which explained that the more severe the disease, the more likely it was associated with cognitive impairment.  She noted that Professor Byrne had referred to the brain atrophy indicated by the testator’s CT scan results.
35. [35]
    The primary judge next noted that Professor Byrne had opined that the testator was unlikely to have had testamentary capacity as at the date of execution of the second will due to cognitive impairment or dementia.  She noted that in relation to the testator’s ability to know those who had a claim on his bounty and the basis of that claim, Professor Byrne had thought it significant that on 6 March 2017 there was evidence that the testator could not remember the names of his two children.  She noted that Professor Byrne had also thought that the testator did not have the ability to evaluate and discriminate between the respective claims on his estate.  She identified further support for that conclusion in –

    1. (a)
       the evidence of Dr Fleury that she had difficulty understanding whether the testator was referring to his daughter or his daughter-in-law, at times, during his conversation; 
    2. (b)
       the appellant’s evidence concerning the mention of Lisa as someone who was not able to be trusted, when the testator had just named Lisa as an equal beneficiary in the second will; 
    3. (c)
       Ms Bots evidence that the testator could not recall how old his children were when she spoke to him; and
    4. (d)
       the fact that the testator left his car to Karyn’s husband in circumstances where Karyn had only married in 2015 and between January 2016 and January 2017 she had been estranged from her father.
36. [36]
    The primary judge’s concluding evaluative judgment was expressed in these terms:

“In a way, these are quite crude indicators as to whether or not [the testator] may not have been able to remember who had a claim on his bounty and what the basis for the claim was.  There is, however, no more focused evidence, because nobody discussed these matters with [the testator] between January and March 2017.

In my opinion, having regard to all the evidence in the case, [the testator] did not have testamentary capacity at the time he executed the 2017 will.  Having regard to his consistently very low scores on the Montreal Cognitive Assessment, he had a significant cognitive impairment.  It was not something that came and went.  It was consistently evident on testing in the months preceding the making of the 2017 will.  His brain scans show that his brain was atrophying and he had significant ischaemic white matter disease.

At or around the time of making the will he demonstrated significant memory loss, including as to the names of two of his children, the ages of his children, the address of his home in Dunamis Court where he had lived for many years, the address of his new home and what year it was.  The evidence also demonstrates that he no longer had an accurate chronology of events of the last year or so.

It seems to me he could not understand that he had been put in respite care when he was in the Pimpama facility.  He also could not understand that he had become so old and frail that he could not live in a house of his own, even with care.  Ideas that he might live with friends from the church, by himself, or ‘out bush’, in my opinion, well illustrate Dr Roberts’ concern that his executive function, evaluation, judgment, weighing up pros and cons, etcetera, was affected.

Dr Fleury concluded that [the testator] had no capacity to revoke his enduring power of attorney.  He could not understand how the enduring power of attorney would operate, even with her explanations to him.  While Dr Fleury was assessing capacity for a different transaction than making a will, I think her assessment is the closest evidence I have to testamentary capacity.  It is not definitive of that, but, in my view, it does strongly tend against [the testator] having capacity to make a will.

When that is put together with Dr Roberts’ concerns and the indication of failing memory and understanding from the lay evidence, I am persuaded that, on the balance of probabilities, [the testator] did not have testamentary capacity when the 2017 will was executed.”

The first ground of appeal

37. [37]
    The first ground of appeal was that the primary judge erred as to the test for testamentary capacity by relying upon evidence as to the general cognitive impairment of the testator rather than considering whether the testator had capacity to comprehend moral claims of potential beneficiaries.

Relevant legal principles

38. [38]
    As this ground of appeal alleges legal error by the primary judge, it is appropriate first to identify the legal principles which inform the disposition of a case of this nature.  The principles so identified are also relevant to the disposition of the second and fourth grounds of appeal.

Onus of proof

39. [39]
    The following propositions may be advanced concerning onus of proof where the Court is considering whether an impugned instrument is to be regarded as the true will of a testator.
40. [40]
    First, the onus of proving that an instrument is the true will of the testator lies on the party propounding it and, if the onus is not discharged, the Court is bound to pronounce against the instrument: Bailey v Bailey (1924) 34 CLR 558 per Isaacs J at 570; Bull v Fulton (1942) 66 CLR 295 per Williams J at 343.  The onus continues during the whole case and the question must be determined on the balance of probabilities, based on the whole of the evidence: Bailey v Bailey at 570.
41. [41]
    Second, a presumption of testamentary capacity arises if the proponent of a will demonstrates a duly executed will that is rational on its face: Timbury v Coffee (1941) 66 CLR 277 per Dixon J at 283; Frizzo v Frizzo [2011] QCA 308 per Muir JA (with whom McMurdo P and White JA agreed) at [24].  If the presumption is not displaced, testamentary capacity need not be further addressed because its existence will be presumed.
42. [42]
    Third, the presumption may be displaced if evidence establishes that there is “a doubt” as to the existence of testamentary capacity which requires resolution by the tribunal of fact: Worth v Clasohm (1952) 86 CLR 439 per Dixon CJ and Webb and Kitto JJ at 453; Frizzo v Frizzo at [24].
43. [43]
    Fourth, once the presumption of testamentary capacity has been displaced, the Court is thrown back to the first proposition: Timbury v Coffee at 283; Worth v Clasohm at 453; Frizzo v Frizzo at [24].  The decision of the Court must be against validity unless the proponent of the will has discharged the onus to establish affirmatively that the testator had testamentary capacity at the time the will was executed: Bull v Fulton at 343.

The test for testamentary capacity

44. [44]
    The classic test for testamentary capacity enunciated in Banks v Goodfellow (1870) LR 5 QB 549 and restated by Powell JA (with whom Meagher and Stein JJA agreed) in Read v Carmody [1998] NSWCA 182, has consistently been applied in Queensland.^[1]
45. [45]
    In Read v Carmody, Powell JA identified the various matters required to be considered in determining whether or not a testator had testamentary capacity in these terms (emphasis added to identify the aspects of capacity relevant to the present case):

“Those matters have, over the years, been expressed in varying forms and in differing language, but all formulations seem agreed that “testamentary capacity” encompasses the following concepts:

1. that the testator - or testatrix - is aware, and appreciates the significance, of the act in the law which he - or she - is about to embark upon;
2. that the testator - or testatrix - is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he - or she - has a disposing power;
3. that the testator - or testatrix - is aware of those or may reasonably be thought to have a claim upon his - or her - testamentary bounty, and the basis for, and nature of, the claims of such persons;
4. that the testator - or testatrix - has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.

The necessary corollary of this is that, if, at the relevant time the testator - or testatrix - is found to suffer from a condition - whether “mental illness” (or psychosis) in the strict sense or any other form of “mental disorder” (including, but not limited to, deterioration in higher intellectual function or dementia) - which detrimentally affects his - or her - consciousness or sense of orientation, or has brought about disturbances to his - or her - intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator - or testatrix - will, more probably than not, be held to lack testamentary capacity.”

46. [46]
    The four numbered elements in the quote have been referred to as the four affirmative elements of the test.  It is important to appreciate that they do not require perfect levels of the states of awareness or capacity to evaluate or discriminate of which they speak, rather the question is one of degree: Frizzo v Frizzo at [24].  The matters addressed in the last paragraph of the quote are sometimes referred to as negative elements of the test.  However, they are to be understood only as an identification of considerations which are such as might (but will not necessarily), in a particular case, prevent the proponent of an impugned will from satisfying their onus as to proof of the affirmative elements.  That point was made by White J in Gray v Hart [2012] NSWSC 1435 at [342] to [345], quoted with approval by Kourakis CJ in Roche v Roche [2017] SASC 8 at [27].
47. [47]
    In Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 295, Kirby P touched upon the considerations mentioned in the previous paragraph when he observed (emphasis added and citations omitted):

“In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years.  In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age.  But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will.  Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval.  Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.”

48. [48]
    Thus the law is clear that it does not necessarily follow from the mere fact that a testator had some form of psychological or mental condition or deterioration which detrimentally affected cognition or judgment, that a proponent of the testator’s will cannot establish affirmatively that the testator had testamentary capacity at the time of executing the will.  The focus must be on what the evidence in the particular case shows as to capacity at the relevant time, bearing in mind what the evidence evinces as to the probabilities of the relevant condition having impacted on the testator in such a way as to deprive the testator of the relevant capacity.  Evidence might, for example, show that while cognition or judgement was detrimentally affected by some psychological or mental condition, it was not sufficiently affected as to deprive the testator of testamentary capacity.  Or evidence might show – as Kirby P observed in Re Estate of Griffith (dec’d) – that a will was signed during a lucid interval.

The manner by which the onus of proving testamentary capacity may be discharged

49. [49]
    In a case in which the presumption of testamentary capacity has been displaced, the sufficiency of the evidence which is necessary for the proponent of an impugned will to discharge the onus of proof lying upon them, will vary according to the circumstances of the case, including the cogency of the evidence which operated to displace the presumption of testamentary capacity.
50. [50]
    Early cases such as Barry v Butlin (1838) 2 Moo PCC 480 at pp 482-483 (citing Baker v Batt (1838) 2 Moo PCC 317) refer to what was described as a well-established principle, namely:

“… if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.”

51. [51]
    That principle was referred to with approval by Barton and Gavan Duffy JJ in Nock v Austin (1918) 25 CLR 519 at 524.  And, similarly, in Bailey v Bailey, Isaacs J observed:^[2]

“The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.

As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit.”

52. [52]
    In my view, the observations made by Meagher JA (Basten and Campbell JJA agreeing) in Tobin v Ezekiel (2012) 83 NSWLR 757, satisfactorily summarise the position:^[3]

“In this context the statements prescribing ‘vigilance’ and ‘careful scrutiny’ and referring to the court being ‘affirmatively satisfied’ as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453.  What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44].  They also recognise that deciding whether a document is indeed a person’s last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 … .”

Analysis

53. [53]
    The reference in the first ground of appeal to whether the testator had the capacity to comprehend moral claims of potential beneficiaries is to be taken to be a reference to the third and fourth affirmative elements of the test for testamentary capacity as quoted at [45] above.
54. [54]
    The effect of the appellant’s argument was to suggest that the primary judge leapt from the conclusion of the existence of cognitive impairment to the conclusion of lack of capacity, without appreciating the point made at [48] above, namely that relevant focus must be on what the evidence in the particular case shows as to the probabilities of cognitive impairment having impacted on the testator at the relevant time in such a way as to deprive the testator of the relevant capacity.
55. [55]
    I make the following observations.
56. [56]
    First, her Honour specifically referred to this passage from Frizzo v Frizzo:^[4]

“Of course, the onus of proving that the testatrix had testamentary capacity at the time she made her will lies on the party propounding that will.  It is a question determined on the balance of probabilities, based on the whole of the evidence.  A presumption of validity arises where the proponent demonstrates a duly executed will that is rational on its face.  The party impugning that will must then displace the prima facie case with ‘clear evidence...that the illness of the [testatrix] so affected [her] mental faculties as to make them unequal to the task of disposing of [her] property’.  While extreme age or grave illness are circumstances that will attract the vigilant scrutiny of the Court, neither is, of itself, sufficient to establish incapacity.  The question always is whether those or other circumstances so affected the testatrix’s faculties as to render her unequal to the task of disposing of her property.

If, however, doubt is raised as to the testatrix’s mind, memory and understanding, then the Court is thrown back onto an examination of the evidence as a whole to determine whether the proponent has established affirmatively that the testatrix was of sound mind at the time of executing the will.”,

thereby demonstrating that she appreciated that establishing the existence of a relevant illness was not sufficient to establish incapacity, but rather the question was whether the illness so affected the testator’s faculties as to establish incapacity.

57. [57]
    Second, her Honour specifically noted the nature of the Banks v Goodfellow test, as stated in Frizzo v Frizzo, thereby revealing that she correctly appreciated the relevant affirmative elements of testamentary capacity.
58. [58]
    Third, her Honour specifically (and correctly) noted that perfect levels of mental balance and clarity were not required, the question being one of degree.  And she went further to note that mental power might be reduced beyond the ordinary standard, provided the testator has sufficient intelligence to understand and appreciate the testamentary act.  Again, her Honour’s reasons thereby revealed a clear understanding that the question required an examination whether the particular illness sufficiently affected understanding as to establish incapacity.
59. [59]
    Fourth, her Honour’s judgment then discussed the lay and expert opinion evidence which demonstrated the testator’s cognitive problems, before reaching her conclusion as to lack of testamentary capacity.  But in doing so, she was plainly cognisant that the test required a consideration of how the cognitive problems affected the aspects of the testator’s mental acuity made relevant by the law.  That was made clear when, after the discussion of the evidence, her Honour observed:

“In a way, these are quite crude indicators as to whether or not [the testator] may not have been able to remember who had a claim on his bounty and what the basis for the claim was.  There is, however, no more focused evidence, because nobody discussed these matters with [the testator] between January and March 2017.”

60. [60]
    The proposition that the primary judge made the alleged error of law cannot be made good.

Conclusion

61. [61]
    The first ground of appeal fails.

The fourth ground of appeal

62. [62]
    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.
63. [63]
    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.
64. [64]
    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.”

65. [65]
    The appellant expressly conceded that because the primary judge reached her conclusion about testamentary capacity by treating the appellant as if he had established a prima facie presumption of validity, the error may not have any consequence.
66. [66]
    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.
67. [67]
    It is unnecessary to consider the fourth ground of appeal further.
68. [68]
    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.
69. [69]
    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.”
70. [70]
    This was to treat onus in a way which was inconsistent with the authorities discussed at [40] to [43] above.  It was the appellant defendant who was the proponent of the will.  If he established a presumption of validity, the only onus which the respondent plaintiff had was the evidential onus of demonstrating that there was doubt as to testamentary capacity, thereby displacing the presumption of testamentary capacity.  Once that was done by evidence at trial – and the appellant accepted before this Court that it had been – it was for the appellant defendant to discharge the onus of proving that the testator had testamentary capacity at the time he made the second will.  The respondent plaintiff was never required to discharge an onus to show that the testator did not have capacity at the time he made the second will.
71. [71]
    The appellant did not suggest that identification of this error assisted his case on appeal.

The third ground of appeal

72. [72]
    The third ground of appeal was that the primary judge erred by relying upon the opinion of the expert witness, Professor Byrne, because the opinions which the primary judge accepted or appeared to accept were dependent upon inadmissible parts of his report or facts that were not proved in evidence.

Relevant legal principles

73. [73]
    The principles of law which are relevant to the appellant’s complaint are well settled.
74. [74]
    First, expert opinion evidence is inadmissible unless the facts on which the expert opinion is based are both identified by the expert and proved in evidence: see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA at 743-4 [85]; R v Naidu [2008] QCA 130 per Fraser JA at [68]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 per Heydon J at 612-3 [64] to [65].
75. [75]
    Second, expert opinion evidence is inadmissible unless the expert states, in chief, the reasoning by which the conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert’s expertise: see Makita (Aust) Pty Ltd v Sprowles at 743-4 [85]; R v Sica [2014] 2 Qd R 168 per Muir and Gotterson JJA and Applegarth J at 189-90 [104]; R v Lentini [2018] QCA 299 per Sofronoff P, with Philippides JA and Henry JA agreeing, at [55]; Dasreef Pty Ltd v Hawchar at 622-4 [91] to [94].  However, the extent to which this is necessary may vary depending on the nature of the case.  As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ noted in Dasreef Pty Ltd v Hawchar at 604 [37]:

“That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying ‘specialised knowledge’ based on his or her ‘training, study or experience’, being an opinion ‘wholly or substantially based’ on that ‘specialised knowledge’, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.”

76. [76]
    Third, the warning articulated by Mason P, in R v GK (2001) 53 NSWLR 317 at 326-7 [40] (emphasis added), is also relevant:

“… However, judges should exercise particular scrutiny when experts move close to the ultimate issue, lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions: see Steffen v Ruban (1996) 84 WN (Pt 1) 264 at 268-269; [1966] 2 NSWR 622 at 626; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 350-351; HG v The Queen (1999) 197 CLR 414 at 427-428, Makita.”

77. [77]
    Fourth, the approach which should be taken to expert opinion based partially on facts not proved in evidence and partially on facts proved in evidence is that explained by Ipp J (with whom Malcolm CJ agreed) in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 377-8 (citations omitted, emphasis added):

“In my opinion, expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it.  I form this view as to admit such an opinion would be to admit indirectly, the inadmissible evidence itself.  If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court's decision.  Such a result would defeat the purpose of the law that excludes the inadmissible evidence.  If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded.  It is for this reason that the Court of Appeal in R v Turner observed (at 840) that an expert in examination-in-chief should be asked to state the facts on which his opinion is based, and that it was wrong to leave it to the other side to elicit the facts by cross-examination.  It is only when the primary facts upon which the opinion has been based are established that the opinion should be admitted into evidence.

On the other hand, where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight. …

Where the expert opinion is based on a combination of admissible and inadmissible material, and it is impossible to determine what conclusions are based on the expert's own observations and what conclusions are based on what he has been told, or to what degree the expert has been influenced by the hearsay material, the evidence should be excluded: … .”

78. [78]
    Fifth, as French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ noted in Dasreef Pty Ltd v Hawchar at 599 [19] to [20]:

“As a general rule, trial judges confronted with an objection to admissibility of evidence should rule upon that objection as soon as possible.  Often the ruling can and should be given immediately after the objection has been made and argued.  If, for some pressing reason, that cannot be done, the ruling should ordinarily be given before the party who tenders the disputed evidence closes its case.  That party will then know whether it must try to mend its hand, and opposite parties will know the evidence they must answer.

It is only for very good reason that a trial judge should defer ruling on the admissibility of evidence until judgment. …”

The evidence of Professor Byrne and its treatment at trial

79. [79]
    It is appropriate to say a little more about the evidence of Professor Byrne than that which appeared in the summary given by the primary judge in her reasons.
80. [80]
    Professor Byrne was an expert clinical and academic psychiatrist.  He was Professor of Psychiatry and Head of the Academic Discipline of Psychiatry within the School of Medicine at The University of Queensland.  He was Director of the Older Persons’ Mental Health Service at the Royal Brisbane and Women’s Hospital and a visiting Psychiatrist to the Memory Clinic at the Royal Brisbane and Women’s Hospital.  He had 30 years’ experience at a consultant level in general adult and geriatric psychiatry.  In 2012, he won the Senior Research Award and in 2016, he won the Meritorious Service Award of the Royal Australian and New Zealand College of Psychiatrists (RANZCP).  He served as a member of the Committee for Examinations, as Chair of the Faculty of Psychiatry of Old Age and as a member of the General Council of the RANZCP.  Shortly prior to February 2018, he chaired the binational subcommittee for Advanced Training in Psychiatry of Old Age of the RANZC.  He was actively engaged in research activities and regularly published articles in peer-reviewed journals.  As the primary judge observed to counsel during the course of the trial, Professor Byrne had been a part-time Assisting Psychiatrist on the Queensland Mental Health Court.
81. [81]
    As the primary judge noted, Professor Byrne had not examined the testator during the testator’s life.  His report acknowledged that was a limitation on his opinion.  Nevertheless, he concluded that, consistently with his duty to the Court, he could express the opinions recorded in his report.
82. [82]
    I have mentioned that the first opinion expressed by Professor Byrne on which the primary judge relied was his clinical opinion.  The way it was expressed in the report was that the testator was, as at the date of execution of the second will on 2 March 2017, suffering from a major neurocognitive disorder, namely dementia, and that the dementia was of mild to moderate severity.
83. [83]
    Professor Byrne wrote that his opinion for the presence of dementia came from several “complementary sources”, including cognitive testing, neuroimaging studies, functional assessment, clinical observations and family reports.  The report proceeded to summarise the salient findings from each of those sources and to make interpretative comments:

    1. (a)
       As to cognitive testing, Professor Byrne observed that the testator had been given the Montreal Cognitive Assessment test in August 2016 (scoring 13 out of 30) and in January/February 2017 (scoring 16 out of 30).  If the tests were correctly administered and scored, then the testator was likely to have had cognitive impairment in the range commonly associated with dementia in August 2016 and January 2017.  He acknowledged that such scores on their own would not make the diagnosis of dementia.
    2. (b)
       As to neuroimaging studies, Professor Byrne had regard to the results of radiologists reports.  CT brain scans undertaken on 21 September 2004, 10 December 2016 and 19 January 2017 all showed ventricular enlargement and sulcal widening, indicative of brain atrophy, as well as periventricular hypoattenuation, indicative of white matter ischaemic disease.  On 10 December 2016, the radiologist’s report noted that the white matter ischaemic disease was “confluent” and on 19 January 2017 the radiologist noted that it was “severe”.  Professor Byrne noted that white matter ischaemic disease was considered to be the commonest cause of vascular dementia in the developed world, and the second most common cause of dementia overall (after Alzheimer’s disease).
    3. (c)
       As to functional assessment, Professor Byrne observed that the testator had been assessed as having moderately severe functional impairment by occupational therapists, physiotherapists and speech pathologists on multiple occasions during 2016 and 2017, and that he required assistance for most activities of daily living.  Professor Byrne opined that the testator’s functional impairment was likely to have been due to a combination of cognitive impairment due to dementia and the impact of the testator’s multiple other medical problems.
    4. (d)
       Professor Byrne assessed clinical observations recorded in clinical file entries concerning the testator in January, February and March 2017.  He concluded that those entries strongly suggested that the testator was cognitively impaired in early March 2017 and that the medical staff who saw him regularly at this time had concerns about his decisional capacity.
    5. (e)
       Professor Byrne recorded that observations contained in family reports from Lisa suggested that the testator had on some occasions engaged in confabulating, that is making up things to fill in amnesic gaps.  He referred to a report from Mr Kobryn, the testator’s brother-in-law, in which the brother-inlaw expressed surprise as to the content of the second will.  And he referred to reports from the respondent which suggested deterioration in the testator’s cognition and function.  As will appear, the material contained in the family reports was the material which was not proved in evidence and on which the third ground of appeal was based.

84. [84]
    The second opinion expressed by Professor Byrne on which the primary judge relied was his opinion as to the likely impact of the testator’s dementia on testamentary capacity as at the date of execution of the second will.  The opinion was expressed in these terms (the shaded parts were the parts affected by material derived from “family reports” and which were struck out by the primary judge):

“Opinion as to Testamentary Capacity

In my opinion, the deceased is unlikely to have had testamentary capacity on 2 March 2017 due to the presence of dementia.

This opinion is based on my understanding of the modern interpretation of Banks v Goodfellow [1870] as expressed in Kerr v Badran [2004].  I believe that this interpretation has been applied more recently in Queensland in Frizzo v Frizzo [2011] and Ruskey-Fleming v Cook [2013].

I will address each of the four modem elements of Testamentary Capacity separately and to the extent possible from the materials provided.

[Professor Byrne then addressed the first two affirmative elements in terms unnecessary to record.]

3.The [testator] must be aware of those who may reasonably be thought to have a claim upon [his] testamentary bounty, and the basis for, and nature of, the claims of such persons

The deceased had impaired recall due to dementia and on 6 March 2017 he was reported to have been unable to recall the names of two of his four children, raising the concern that he may not have been aware of all of his natural heirs and beneficiaries, at least on that day.  It seems to me that knowing the identities of one’s heirs is an important precondition to being able to decide who has a reasonable claim on one’s estate.

The deceased’s impaired autobiographical memory likely meant he relied upon others for advice about claims upon his estate.

Thus, if the deceased’s state of mind on 2 March 2017 was similar to that which he exhibited four days later on 6 March 2017, then he is unlikely to have met the requirements of this element of Testamentary Capacity.

4.The [testator] must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons

In my view, the deceased was suffering from a disease of the mind on 2 March 2017.  As I have argued earlier in this report, this disease of the mind was dementia.

Dementia commonly impairs memory, thinking, language, emotion, insight, judgment, and behaviour.

Memory impairment is a common component of most types of dementia.  The type of memory impairment seen in dementia impairs the person’s capacity to make new memories and to maintain a continuous recollection of their life.  The latter is referred to as autobiographical memory and is important for using recent information to inform current decision-making.

In the deceased’s case, there was evidence of marked functional impairment and altered personality function.^[5]

As their condition progressively deteriorates, people with dementia rely increasingly on their carers and supporters.  As a consequence, they may be influenced by those around them at the time of making decisions.

From the available evidence, it appears that the dementia suffered by the deceased was of mild to moderate severity.  It may have fluctuated in severity from time to time due to its vascular origin, the influence of intercurrent illnesses, and the use of medication.  It is likely to have impaired his ability to evaluate and discriminate between the claims of his potential heirs and beneficiaries.  It is likely to have left him vulnerable to the influence of others.

Potential evidence for this can be found in the disputed Will of 2 March 2017, in which the deceased made a major change to his list of beneficiaries, amounting to a volte-face.

Although the clinical notes tend to suggest that the deceased had become rather cantankerous, I found no definite evidence of what Banks v Goodfellow referred to as ‘insane delusions’.

The deceased was reported by his son Stuart to have misinterpreted the presence of a community carer from Feros Care in a somewhat persecutory manner, but it was not clear whether this was a delusional belief.  However, it seems likely to me that the deceased had, from time to time, a persecutory mind-set that could have adversely affected his capacity to evaluate claims upon his estate.  On 7 March 2017 the deceased was reported by hospital medical staff to have expressed negative, and arguably rather extreme, views about his youngest son, daughter and daughter-in-law.

If the statement of Lisa Rosier is accurate, then it appears that the deceased’s memory impairment was of sufficient severity to have been associated with confabulation.^[6]  She refers to ‘hallucinations’ in her statement, but I think these were more likely to have been confabulations rather than abnormal perceptions or true delusional beliefs.”

85. [85]
    On the first day of the trial, when a trial bundle of documents was tendered, the primary judge was notified that the respondent had advanced written objections to Professor Byrne’s report as contained in the trial bundle.  She was provided with the written objections to the report which had been advanced by the appellant’s counsel.  Her Honour indicated that the objections would be dealt with at a convenient time after she had had an opportunity to read the report and the objections.  Amongst other objections, the respondent had objected to the reliance on facts not proved and the inadequacy of the explanation for various asserted opinions, including the clinical opinion.
86. [86]
    Early on the second day of trial, after having had the opportunity to read the objections taken by the appellant’s counsel, the primary judge remarked to the appellant’s counsel:

“HER HONOUR: And I think at some point we might have to discuss how we deal with those, because it occurs to me that - I mean, Professor Byrne writes very succinctly.  And it occurs to me that Mr Morris might well have to ask for some additional evidence-inchief - - -

MR BYRNES: Well - - -

HER HONOUR: - - - in relation to some of these objections.

MR BYRNES: Well, I would - I’m going to object to evidence-in-chief being led. 

I mean, I don’t know what - what’s he going to say, so I can make my objections - - -

HER HONOUR: Well, he’ll explain presumably the basis for some of the statements he makes.  We can talk about that at a convenient spot before he gives evidence.”

87. [87]
    At the end of that day, her Honour raised the subject again with the appellant’s counsel.  There followed the following exchange (emphasis added):

“HER HONOUR: All right.  Well, I just want to be able to deal - I want to be able to deal with his evidence - - -

MR MORRIS: Yes.

HER HONOUR: - - - and not be left with bases for objection that - - - MR MORRIS: Yes.

HER HONOUR: - - - could have been cured by evidence.

MR MORRIS: Yes.

HER HONOUR: All right, then.  Very good.

MR MORRIS: Yes.  Of course.

MR BYRNES: Your Honour, I might have a solution that - I could possibly think about my objections and just make submissions about the weight of the opinion if it is going to limit the need for evidence-in-chief from Professor [Byrne].

HER HONOUR: Well, it – look, it’s the way Professor [Byrne] writes, and I’m not criticising it, I think he writes very well for report writing.  It’s very clear, but it is very succinct, but you’re, sort of taking Makita v Sprowles sort of objections.

MR BYRNES: Yes.

HER HONOUR: And I suppose I understand why when I think about his writing style, but, I mean, having – I mean I’ve spent the last six years in the Mental Health Court where I regularly see Professor [Byrne], and perhaps part of it is that he so regularly reports in that court, which is not adversarial.  It’s an interrogation court. 

So he’s – there’s never any stones left unturned, can I put it that way.

MR BYRNES: Okay.

HER HONOUR: So he’s probably used to – he’s probably not used to the discipline of reports under the UCPRs, but I just don’t want a position where the real evidence does not emerge because of the way his report’s written.  I want to hear the real evidence, including, you know, the real medical evidence.  So if there’s things that he needs to explain, for example, why he concludes that there’s white matter disease or something like that, I think he should be allowed to explain it.

MR BYRNES: Well, if I can – if that’s – if it’s just purely to be within the confines of his report in terms of explaining the conclusions within his report, then I can – rather than going outside of the scope of his report and opining on some other evidence or something like that which I don’t have any idea about, then I can have a think about whether or not – because I think the main objection, your Honour, is probably – has a minor – I’m guessing is about whether or not white matter ischemia disease, I think that conclusion.  So it might be the case that I can think about just saying, ‘Well, I’m content for the report to go in as it is in that respect’, and that might alleviate the need for my learned friend to actually lead any evidence from Professor [Byrne].

HER HONOUR: Well, sure, but if you’re going to say to me at the end of the day, ‘Look, Professor [Byrne] just said he’s most likely got white matter ischemia disease and I think these things are most – this is most likely resulted in such and such behaviour’, if you’re – someone’s going to have to ask him, because if you’re going to say at the end of the day, ‘Well, don’t give that any weight.  He never explained it’, you’ve got to give him a chance to explain it.

MR BYRNES: It’s the same thing, I suppose, as an objection.

HER HONOUR: It just depends who answers the question – who asks the question.

MR BYRNES: Yes.

HER HONOUR: But, as I say, I’m not – I don’t – I’m not going to rely on technicalities like the rules that – about expert reports if it means then I’m not going to hear the medical evidence that matters.

MR BYRNES: Yes.  Well, my main concern is it going outside the scope of the report.

MR MORRIS: And there’s certainly no intention to do that, and I took the gravamen of your Honour’s comments yesterday as suggesting that there could be an explanation of the process of reasoning that leads to conclusions, rather than - - -

HER HONOUR: Well, I imagine there probably will be.  Perhaps there’s not, but - - - MR MORRIS: Yes.

HER HONOUR: But if there’s conclusions in the report and he’s been briefed with limited material, which I assume is all in the trial bundle.

MR MORRIS: Yes.

HER HONOUR: Then if he needs to make a connection between his conclusions and material in the trial bundle, then he should be allowed to do so.

MR MORRIS: yes.

HER HONOUR: And whether that’s in chief or in cross-examination, I don’t mind, but if that’s all it is, drawing connections between documents that are in evidence and conclusions in his report, I want to hear it somehow.

MR MORRIS: Your Honour will doubtless appreciate that this is a slightly unusual situation.  Usually where in a trial under the UCPR there are witnesses on each side, then

- - -

HER HONOUR: Yes.

MR MORRIS: - - - each side knows what the other side’s concerns are and they can be addressed, but because there is no expert report against Professor [Byrne’s], we’re in the situation that we don’t know what, if anything, in his report is challenged.

HER HONOUR: No, well, that’s right, but you’re probably right.  That is probably one reason for it, because the other thing is if you have an expert on the other side that looks at Professor Byrne’s report they’ll say, ‘Well, yes, that symptomology is most likely due to white matter disease’.

MR MORRIS: Yes.

HER HONOUR: You know, and it doesn’t become an issue in the trial.

MR MORRIS: Precisely.

HER HONOUR: All right.

MR BYRNES: Your Honour, can I just – I think my learned friend said that everything in the – relied on by Professor [Byrne] is in the bundle.  I’m just not sure if that is necessarily the case.  So I’ll just raise that, because I don’t want to be accused of allowing an answer to go unaddressed.

MR MORRIS: Yes.

MR BYRNES: But I’ll just raise that for the sake that my learned friend can deal with it.”

88. [88]
    At the end of the second day of the trial, three things were perfectly clear.  First, the primary judge recognised that the form of Professor Byrne’s report was such that she could understand that the appellant’s complaints concerning the adequacy of explanation of the connection between facts proved and conclusions reached could support an argument of breach of the admissibility rules expressed in Makita (Aust) Pty Ltd v Sprowles.  Second, the primary judge had conveyed to counsel that if an objection was to be pressed on the basis of the inadequacy of explanation, or the need for an explained connection between the admitted evidence in the trial bundle and the conclusions, she expected that whether in chief or in cross-examination, Professor Byrne would be given an opportunity to give that explanation.  Third, apparently understanding the position which the primary judge had expressed, counsel for the appellant had indicated that he might take the view, after thinking about the position further, that he was content for the opinions expressed in the report to go in so as to alleviate the need for senior counsel for the respondent to elicit evidence in chief from Professor Byrne.
89. [89]
    Professor Byrne was called by the respondent’s counsel during the morning of the third day of the trial.  There had been no further discussion before the primary judge concerning the extent to which, if at all, the appellant pressed the objections previously taken by the appellant.  Senior counsel for the respondent proceeded to ask Professor Byrne to confirm that he had arrived at the opinions and conclusions expressed in the report and that they were the opinions and conclusions which he honestly held.  It was at that point when counsel for the respondent should have pressed (and the primary judge should have ruled upon: see Dasreef Pty Ltd v Hawchar at 599 [19] to [20], quoted at [78] above) any objections which he had to the evidence of Professor Byrne, particularly any which could conceivably have been cured by oral evidence from Professor Byrne.  But he did not.  Professor Byrne answered the questions in the affirmative thereby proving up the opinions and conclusions expressed in the report.
90. [90]
    Senior counsel for the respondent then elicited evidence-in-chief from Professor Byrne, in relation to evidence which had been heard from the previous witness (Mr Rouse) that observations had been made of the testator hallucinating during the period of his stay at the respite care facility.  Professor Byrne gave evidence that if he had been aware of the incident he would have thought that the hallucinations might have been part of a dementia syndrome, or they might have been part of a delirium, or they might have been part of a delirium superimposed upon dementia.  He thought that the evidence was not inconsistent with the conclusions he had already drawn.
91. [91]
    Senior counsel for the respondent finally sought to elicit further oral evidence-in-chief to have Professor Byrne explain how he arrived at his conclusions in relation to only two parts of Professor Byrne’s report, namely –

    1. (a)
       in relation to the third of the affirmative elements of the test for testamentary capacity, quoted at [84] above, the following paragraph:

“Thus, if the deceased’s state of mind on 2 March 2017 was similar to that which he exhibited four days later on 6 March 2017, then he is unlikely to have met the requirements of this element of Testamentary Capacity.”

2. (b)
   in relation to the fourth of the affirmative elements of the test for testamentary capacity, quoted at [84] above, the following paragraph:

“From the available evidence, it appears that the dementia suffered by the deceased was of mild to moderate severity.  It may have fluctuated in severity from time to time due to its vascular origin, the influence of intercurrent illnesses, and the use of medication.  It is likely to have impaired his ability to evaluate and discriminate between the claims of his potential heirs and beneficiaries.  It is likely to have left him vulnerable to the influence of others.”

92. [92]
    However, counsel for the respondent objected to that course on the basis that leave to elicit oral evidence was required.  Senior counsel for the respondent sought leave in respect of both paragraphs, but once counsel for the appellant pointed out, correctly, in the course of submissions opposing leave that he had not objected to the first paragraph, senior counsel for the respondent did not press his application for leave and that concluded the evidence-in-chief.
93. [93]
    Oddly, given the exchange which had occurred the previous day between counsel and the primary judge, and counsel’s failure to press any objections, counsel for the appellant regarded it still to be open to him to maintain objections previously made.  Thus, he commenced the cross-examination by stating that he maintained the objections previously advanced in writing.  Neither senior counsel for the respondent nor the primary judge objected.
94. [94]
    The cross-examination of Professor Byrne by the appellant’s counsel was very brief and was characterised more by what was not suggested than by what was.
95. [95]
    As to what was not suggested:

    1. (a)
       The cross-examiner did not challenge Professor Byrne as to the correctness of his clinical opinion regarding the existence of dementia as at the date of execution of the second will.
    2. (b)
       Nor did the cross-examiner challenge Professor Byrne as to the correctness of his opinion as to lack of testamentary capacity as at the date of execution of the second will, or any of the opinions expressed as to the third and fourth affirmative elements of the test for testamentary capacity.
    3. (c)
       Nor did the cross-examiner suggest that in relation to either opinion, Professor Byrne must have been influenced by the material not in evidence in the case, or in any other way ask him a question which would have permitted him to explain whether he would still hold the opinions which he had expressed if he excluded unproved material from consideration.
96. [96]
    As to what was suggested: 

    1. (a)
       The cross-examiner established that Professor Byrne’s normal practice when diagnosing dementia was to undertake a clinical examination and history from the patient and that he accepted that there was not a 100 per cent correlation between CT scan findings and a finding of dementia.  But he took those answers no further.  In particular, he did not suggest to Professor Byrne that the answers had any bearing on Professor Byrne’s diagnosis of dementia in this particular case.
    2. (b)
       The cross-examiner explored briefly the topic of the significance of observed hallucinations.  He obtained agreement that short-term delirium or hallucinations could be associated with an elderly person who has a urinary tract infection, that delirium was not uncommon in such circumstances, and that with adequate treatment the symptoms of delirium could resolve fairly quickly.
    3. (c)
       Finally, the cross-examiner obtained Professor Byrne’s agreement that: a person’s mental acuity may fluctuate; a person’s mental acuity, even with dementia, may fluctuate; and dementia does not necessarily preclude the finding that a person has testamentary capacity.  But the cross-examiner took those acknowledgements of general propositions no further.  In particular, he did not suggest that the answers had any bearing on Professor Byrne’s expression of opinion concerning testamentary capacity in this particular case about the particular patient whose records he had examined.  One might regard that as odd, when in the very passage in the report which Professor Byrne acknowledged that the testator’s dementia may have fluctuated in severity, he nevertheless expressed the opinion that it was likely to have impaired the testator’s ability to evaluate and discriminate between the claims of his potential heirs and beneficiaries.
97. [97]
    In re-examination, senior counsel for the respondent sought only to explore the ambit of the time within which delirium caused by a urinary tract infection might be expected to resolve.  He established that if delirium had been observed to continue after a two-week treatment with antibiotics, Professor Byrne would conclude that the urinary tract infection was not the only causal factor operating.  It has already been mentioned that the primary judge found that the hallucinations were likely caused by the infection and were irrelevant to the testamentary capacity question.
98. [98]
    In her judgement, the primary judge approached the evidence of Professor Byrne in this way:

    1. (a)
       She acknowledged that there were difficulties and disadvantages confronting a medical expert giving a retrospective report.
    2. (b)
       She noted and relied on his clinical diagnosis that the testator was, as at the date of execution of the second will on 2 March 2017, suffering from dementia, also known as a major neurocognitive disorder, and that the dementia was of mild to moderate severity.
    3. (c)
       She noted that objection had been taken to that opinion – this was evidently a reference to the objection that the opinion was based on matters not proved – and that dementia had never been diagnosed during the testator’s lifetime.  She overruled that objection, observing (emphasis added):

“… In my view, Professor Byrne had expertise to give that opinion and his report does properly explain the reasons or the basis for his views. It was never put to him in crossexamination that without the reports of family and friends he could not have made the diagnosis. I would not infer this in the absence of evidence. ….”

4. (d)
   She relied on his opinion that the testator was unlikely to have had testamentary capacity as at the date of execution of the second will on 2 March 2017 due to cognitive impairment or dementia, and, in this regard, referred to the views he expressed on the third and fourth affirmative elements of the test for testamentary capacity.
5. (e)
   She acknowledged that in relation to his opinion on testamentary capacity, Professor Byrne had expressed opinions on ultimate issues.  But she overruled the objection to that course saying:

“Professor Byrne does express opinions on ultimate issues, as medical practitioners routinely to.  It is hard to see that he could give medical evidence without doing so and there are cases to the effect that psychiatrists can give evidence on ultimate issues when these concern states of mind – see Cross on Evidence [29105].  I am, therefore, against the defendant on this objection.  I do understand that the decision which I am to make, and which I have made, is my decision, not Professor Byrne’s.”

6. (f)
   She dealt with objections to Professor Byrne’s report, noting specifically that whilst she had upheld some of them, they did not exclude any part of his evidence on which she had relied.

Analysis

99. [99]
    The appellant’s argument was as follows (citations omitted):

“The primary judge ruled that certain factual matters on which Professor Byrne's report was based had not been proved.  Her Honour held that evidence of confabulation, although relevant to Professor Byrne's conclusion, was not proved.  Her Honour does not appear to have ruled as inadmissible the last two paragraphs on TB p34 (ARB p248), even though the statement of Michael Kobryn was not in evidence and one of those paragraphs refers to Mr Kobryn’s surprise at the content of the 2017 Will.  There was no evidence of Mr Kobryn as to his surprise in respect of the 2017 Will (and no statement from him in evidence).  Her Honour appears to have incorrectly considered that the evidence contained in this paragraph was before the Court.  Her Honour also ruled that Professor Byrne’s statement as to the deceased’s apparent ‘altered personality function’ was inadmissible.

Professor Byrne's opinion regarding dementia was based on ‘several complementary sources’ and that included family reports (of Lisa Rosier and Michael Kobryn, which were not in evidence).  Professor Byrne’s views as to confabulation were inadmissible and depended on such family reports.  Her Honour appears to have sought to substitute her views regarding the deceased’s apparent confusion, but such matters were not put to Professor Byrne and could not have supported his opinion as stated in his report.

Professor Byrne considered that the 2017 Will represented a ‘volte face’, but that was presumably connected to Mr Kobryn’s apparent surprise at the 2017 Will (the evidence not before the Court) and Professor Byrne did not address the Deed of Arrangement.

Given the manner in which Professor Byrne’s report was structured, it was unsafe for the primary judge to rely on Professor Byrne’s concluded opinion.”

100. [100]
     The interpretation of Professor Byrne’s reference to the second will representing a volte face must be rejected.  His observation should be taken as a reference, legitimately, to the fact that the effect of the second will was to reverse the long adhered to testamentary intention in favour of the respondent.  But that is insignificant to the appellant’s central point, which is encapsulated by the last sentence in the argument.  Although no case was cited to this Court, the submission must be regarded as based on the law as articulated in Pownall v Conlan Management Pty Ltd at 378, quoted at [77] above, and in particular, the proposition that expert opinion should be excluded if it is based on a combination of factual matters which have been proved and factual matters which have not been proved, and it is impossible to determine to what degree the expert has been influenced by the factual matters which have not been proved.
101. [101]
     The appellant correctly identified that the primary judge had found that some facts referred to in Professor Byrne’s report had not been proved at trial.  All of the material to which he referred was evidence which had been dealt with by Professor Byrne under the heading “family matters”, which was one of the “complementary sources” on which he relied to justify his clinical diagnosis of dementia.  The form of Professor Byrne’s report does not, on its face, permit a reader to be certain that Professor Byrne would have adhered to his opinion, if he excluded from consideration the material which had not been proved.  At first blush, that might be thought to found the objection to the admissibility of the report and to make good the appellant’s argument on this ground.  However, to accept that argument would be to ignore the way in which this trial was actually conducted.
102. [102]
     I have explained that the primary judge had conveyed to counsel that if an objection was to be pressed in relation to Professor Byrne’s evidence on the basis of the inadequacy of explanation, or the need for an explained connection between the admitted evidence and the conclusions, she expected that whether in chief or in crossexamination, he would be given an opportunity to give that explanation.  Counsel for the appellant must have appreciated that.  Yet he chose –

     1. (a)
        not to press the objection now pressed at the stage of the trial when, if it had been upheld, the primary judge would inevitably have permitted Professor Byrne to address the question by oral evidence; and
     2. (b)
        to conduct his cross-examination of Professor Byrne without challenging Professor Byrne’s opinions or suggesting that he would not have maintained them if he excluded from consideration the material which had not been proved.
103. [103]
     Faced with an expert of the eminence of Professor Byrne and not being himself armed with any countervailing expert opinion, one can well understand counsel’s reluctance to allow Professor Byrne an opportunity to explain his opinions or to consider whether they would be affected if some evidence was excluded.  But taking that course had consequences.  Given the absence of any cross-examination to suggest that Professor Byrne could not have formed his views without the unproved material, the primary

judge did not regard it as appropriate to regard that conclusion as open: see at [98](c) above.  Against the background of how the trial was conducted in relation to Professor Byrne’s evidence, the primary judge’s approach cannot be regarded as attended with error.  Thus the foundation for the appellant’s argument that it was unsafe for the primary judge to rely on Professor Byrne’s opinion falls away.

Conclusion

104. [104]
     The third ground of appeal fails.

The second ground of appeal

105. [105]
     The second ground of appeal was narrowed by the appellant’s written argument and should be dealt with as so narrowed.  The way the argument was put was that the ultimate factual finding as to lack of testamentary capacity was unsound for two reasons, namely:

     1. (a)
        the primary judge did not seek to reconcile the finding with the text of the second will which on its face demonstrated understanding and evaluation of the claims on the testator’s bounty; and
     2. (b)
        the primary judge appeared to have proceeded on the basis that the testator’s cognitive impairment remained consistent over a period of time notwithstanding that evidence accepted by her Honour showed the testator’s level of cognitive impairment varied.
106. [106]
     Before analysing whether the appellant can make good his argument that those errors both existed and justify this Court overturning the primary judge’s ultimate finding, it is necessary to make some brief remarks as to how applicable legal principle informed the appellant’s task below and would inform his task on appeal, if this Court did find a material error of fact had been made.

Relevant legal principles

107. [107]
     First, reference should be made to the discussion of onus of proof at [39] to [43] above.  The evidence at trial having displaced any presumption of testamentary capacity, the decision of the primary judge was required to be against validity of the second will unless she concluded that the appellant (as proponent of the will) had discharged his onus to establish affirmatively that the testator had testamentary capacity at the time of executing the will.  As I have explained at [68] to [71] above, the primary judge wrongly regarded the respondent as having an onus to prove the testator did not have testamentary capacity.  But it is a corollary of her finding that the respondent had discharged his onus of proving absence of testamentary capacity, that she did not regard the appellant as having proved the existence of testamentary capacity.
108. [108]
     Second, reference should be made to the discussion of the approach which a court should take to determining whether a proponent of an impugned will has discharged his onus, at [49] to [52] above.  Satisfaction of the conventional civil standard of proof, approached in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 is required, and the cogency of the evidence necessary to discharge the burden placed on the proponent will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion as to testamentary capacity.  In this case, the evidence casting doubt or suspicion concerning testamentary capacity was strong and included:

     1. (a)
        the second will was prepared by Karyn and under its terms she took a benefit;
     2. (b)
        the effect of the second will was to reverse a long adhered to testamentary intention in favour of the respondent, who was a person who might be thought naturally to have a claim on the testator;
     3. (c)
        Karyn proceeded to facilitate the testator’s execution of the second will on 2 March 2017, giving evidence to the primary judge that she had no concerns about his mental acuity because she had no reason to have such concerns, yet –

        3. (i)
           she had been told by the respite care facility manager only a day or so earlier that a capacity assessment would be needed before the testator’s power of attorney in favour of the respondent could be revoked;

        3. (ii)
           despite having sought to arrange an assessment, she knew that one had not yet been made;

        3. (iii)
           she said in cross-examination that to her observation there was no change in the testator’s condition between 2 March 2017 and 10 March 2017, yet in a contemporaneous document on 10 March 2017 she described the testator in these terms:

“Dad, has difficulty in maintaining cognitive conversation and recall.  He is terribly emaciated, extremely frail and very weak.  He is unable to care for himself and believes he ‘still can’.  He now requires a high level of nursing support.”

4. (d)
   other evidence including from medical practitioners who treated the testator during his life which suggested that in January 2017, the testator had real issues concerning his executive functioning (i.e. his ability to take on board complex ideas, weigh up complex information, weigh up opposing ideas, pros and cons and make complex decisions) and matters had not improved by March 2017; and
5. (e)
   the expert opinion evidence of Professor Byrne, already identified.

109. [109]
     Third, it is necessary to note the principles governing the nature and limits of appellate review where factual error is alleged:

     1. (a)
        A court of appeal conducting an appeal by way of rehearing of a decision of a judge sitting alone is bound to conduct a real review of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.^[7]
     2. (b)
        In some cases, an appellate court might be in just as good a position as the trial judge to make a decision on a factual question.^[8]  But in other cases, the fact that the trial judge has had the advantage of forming impressions about the credibility and reliability of witnesses as a result of seeing and hearing them give their evidence, will require the appellate court to exercise an appropriate degree of restraint against interfering with factual findings likely to have been affected by that advantage.^[9]
     3. (c)
        If, having exercised an appropriate degree of appellate restraint where necessary, the Court of Appeal nevertheless concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own inferences and conclusions based on those findings.^[10]

Analysis 

110. [110]
     As I have mentioned, the appellant’s argument sought to impugn the soundness of the ultimate finding by seeking to persuade this Court that the primary judge made two errors.
111. [111]
     The appellant’s first argument suggested that the primary judge erred by not seeking to reconcile her finding that the testator did not have testamentary capacity with the text of the second will which “on its face demonstrates understanding and evaluation of the claims on the [testator’s] bounty”.  His argument was that there was a failure to grapple with the text of the will or the contextual evidence as to its drafting or execution.
112. [112]
     The primary judge did not regard the text of the second will as having “on its face demonstrated understanding and evaluation of the claims on the testator’s bounty” as the appellant contends.  That she was of that view was plain on the face of the passage which I have extracted from her Honour’s reasons at [64] above.  The complaint is that the primary judge should have grappled with the appellant’s argument in her reasons and specifically in the part of her reasons dealing with testamentary capacity.  But, as Henry J (with whom Fraser and McMurdo JA agreed) recently observed in this Court, “[m]erely demonstrating an argument by a losing party was not addressed in the reasons for judgment will not ground error, it being the relative significance of the argument to the resolution of the determinative issues in the case which matters”.^[11]
113. [113]
     On a fair reading of the primary judge’s reasons, I think it is apparent that the reason she did not revisit her views about the text is that she did not see the terms of the will as having relative significance to the resolution of the determinative issue in the case.  Her Honour was correct to have that view.  Whilst the nature of a testamentary disposition and its underlying reasonableness or unreasonableness may have evidentiary effect, those considerations cannot be regarded as determinative.  If a testator has testamentary capacity, his testamentary dispositions will be valid no matter how unreasonable they may appear to be.^[12]  The corollary must also be true: if a testator lacks testamentary capacity, his testamentary disposition will be invalid, even if it appears to be reasonable.  To my mind, given the observations made at [108] above concerning the cogency of evidence necessary in this case to meet the standard of proof, the text of the will could not be regarded as having any significant weight in favour of a conclusion of testamentary capacity.

114. [114]
     I am not persuaded of the existence of the first alleged error.
115. [115]
     The appellant’s second argument was that the ultimate finding was unsound because the primary judge appears to have proceeded on the basis that the deceased’s cognitive impairment remained consistent over a period of time notwithstanding that evidence accepted by her Honour showed the deceased’s level of cognitive impairment varied.
116. [116]
     This argument seized on the words “[i]t was not something that came and went” in the second paragraph of the primary judge’s concluding evaluative judgment quoted at [36] above, to suggest that her Honour must have mistakenly thought that the level of the testator’s cognitive impairment remained consistent over the relevant period, notwithstanding that other evidence accepted by her showed that the level of his cognitive impairment varied.
117. [117]
     The primary judge made no such error.
118. [118]
     That which the primary judge wrote “was not something that came and went” was the fact that the testator had “a significant cognitive impairment”.  First, in his written submissions before the primary judge, the appellant had conceded that the medical notes and the evidence of medical practitioners could lead to a general finding regarding cognitive impairment (or possibly dementia).  Second, the primary judge should be understood to be referring to the fact that the testator had a particular medical condition which could be described as “a significant cognitive impairment”.  It will be recalled that she relied on Professor Byrne’s clinical opinion, which was that the testator was suffering from mild to moderate dementia.  Professor Byrne described dementia as a major neurocognitive disorder.  The primary judge was correct on the evidence before her to say that the fact of the existence of that disorder was not something which “came and went”.
119. [119]
     As I explained in evaluating the first ground of appeal, her Honour appreciated that the fact of the existence of a disorder affecting cognition was not sufficient to establish incapacity, the question was whether it so affected the testator’s faculties at the time of execution of the impugned instrument as to establish incapacity, assessed by reference to the appropriate test.  Having recognised that, the balance of the primary judge’s concluding evaluative judgment quoted at [36] above should be regarded as a reprise of some of the features of the evidence which she had found to be persuasive, it could not be regarded to the exclusion of the examination of the evidence in the case which preceded it and which led to the opening two paragraphs of the passage: see generally [21] to [35] above.
120. [120]
     The appellant made a miscellany of other criticisms about the way in which the primary judge expressed her concluding evaluative judgment quoted at [36] above.  For completeness, I will deal with each.
121. [121]
     The appellant argued that the primary judge’s reliance on the Montreal Cognitive Assessments “in support of constancy of impairment” was flawed.  In fact her Honour did not do rely on the assessments in that way.  She relied on the scores in the assessments to comment that the testator had “a significant cognitive impairment”.  Having regard to the observations made by Dr Roberts that the test results were indications of moderately severe impairment of cognition (see [31](f) above) and to Professor Byrne’s opinion that if the tests were correctly administered and scored then the testator was likely to have had cognitive impairment in the range commonly associated with dementia in August 2016 and January 2017 (see [33] and [83](a) above), the primary judge’s observation was neither flawed nor remarkable.
122. [122]
     The appellant criticised the paragraph of the reasons commencing with “at or around the time of making the will” as being inaccurate because there was evidence that on other occasions also at or around the time of making the will, the testator was able to remember some things.  The appellant referred to five matters suggested not to have been addressed by the primary judge:

     1. (a)
        the evidence of Ms Privitera that on 1 March 2017 the deceased was able to tell Ms Privitera the names of his four biological children;
     2. (b)
        the evidence of Karyn and on the face of the second will itself that on 2 March 2017 the deceased remembered and referred to his biological children;

3. (c)
   clinical file notes of 7 March 2017, in which the testator scored 7/10 on a Mental Status Questionnaire and (among other things) was noted as “alert and interactive, answering questions appropriately ... no tangential speech, relatively good attention ... good recall ...”;
4. (d)
   the general medical ward round notes of 8 March 2017, where the testator was recorded as “not too bad”, he recalled the place, year, month and day, and was noted as being alert, interactive and talkative; and
5. (e)
   the evidence of Professor Byrne which recorded that any dementia suffered from the testator may have fluctuated in severity, but that in any event, a finding of dementia and a fluctuation in mental acuity did not preclude the testator having testamentary capacity.

123. [123]
     The primary judge should not be regarded as having not addressed these matters.  First, she had earlier recorded the evidence of Ms Privitera.  Second, she had said that she placed no great weight on the evidence of the children (including Karyn) in relation to capacity.  Third, in relation to Karyn specifically, she had earlier said that her evidence as to the testator’s mental acuity had been contradicted by her own contemporaneous document of 10 March 2017.  And as to the significance of clinical observations, the primary judge had placed reliance on the clinical opinion of Professor Byrne, and he had addressed the clinical observations.  I have already explained the significance of Professor Byrne’s acknowledgement that a person with dementia might nevertheless still have capacity: see at [96](c) above.
124. [124]
     None of the matters identified by the respondent provides any reason to interfere with the finding as to the absence of testamentary capacity made by the primary judge.
125. [125]
     I should make one further comment in dealing with this ground of appeal.
126. [126]
     If, contrary to the foregoing, the appellant had succeeded in demonstrating that the primary judge’s finding of lack of capacity was materially affected by one of the alleged factual errors, it would then have been necessary for this Court make its own findings of fact and to formulate its own reasoning based on those findings.  To my mind the appellant’s argument failed to grapple with the matters explained at [108] above.  Given the strength of the evidence creating doubt or suspicion about capacity, the cogency of the evidence necessary to discharge the burden placed on the appellant would have had to be compelling.  And it just was not.  In this regard, the appellant relied on: the terms of the will itself; the evidence of Karyn; the modest size of the estate; the evidence from a number of witnesses that the testator was aggrieved of being placed into respite care and not having the promised granny flat built for him; and the parts of the evidence summarised by the primary judge in which the testator was able to remember some relevant information.  To my mind, in order to succeed, the evidence would have had to paint a clear picture that notwithstanding all of the observed problems with the testator’s cognition and its effect on the relevant capacities, he was in a lucid interval on 2 March 2017.  It did not rise so far.

Conclusion

127. [127]
     The second ground of appeal fails.

The orders which should be made

128. [128]
     All of the grounds of appeal having failed, the appeal should be dismissed.
129. [129]
     Ordinarily, costs would follow the event.  However, the appellant has, by its notice of appeal, sought an order that costs should come out of the estate.
130. [130]
     Accordingly, the following directions should be made:

     1. (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;
     2. (b)
        the respective submissions must not exceed four A4 pages; and
     3. (c)
        the Court will determine any issues which arise in relation to costs on the papers.

131. [131]
     WILSON J:  I agree with Bond JA’s reasons and the orders proposed by his Honour.