Sullivan v Greig[2023] QCA 240

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Boddice JA.

2. [2]
   BODDICE JA:  By an amended originating application filed on 28 February 2022, the appellant sought orders pronouncing against the force and validity of the Will of Janita Rose Sullivan, deceased (the deceased), dated 15 November 2021 (the Will), together with a grant of Letters of Administration on Intestacy in favour of the appellant.
3. [3]
   Following a two-day trial, the learned trial judge pronounced for the force and validity of the Will.  Orders were made granting Letters of Administration of the deceased’s estate, with the Will, to the respondent.
4. [4]
   The appellant appeals those orders.  At issue is whether the trial judge’s findings that the deceased had testamentary capacity at the time of execution of the Will and that the deceased knew and approved of the contents of the Will were consistent with the preponderance of admissible evidence.

Background

5. [5]
   The deceased was born in 1962 and died on 16 November 2021.  She was survived by her only child, the appellant, who was born in 1981.  The respondent had been the deceased’s friend for over 30 years.
6. [6]
   The deceased left her small estate, valued at approximately $75,000, entirely to the respondent.  Its major asset was a small acreage property at South Nanango, purchased in 2019.
7. [7]
   The deceased had lived on the property in a shipping container, without electricity.  Her only companions were a horse, some chickens and a cat.
8. [8]
   The deceased and the appellant had not been close for some time.  They had not physically had contact for approximately four years prior to the deceased’s death.
9. [9]
   The deceased was diagnosed with lung cancer in about mid-2021.  She advised the respondent of that diagnosis.  She did not advise the appellant.
10. [10]
    The deceased also told Julie Saunders (Saunders) of that diagnosis.  Saunders had been the real estate agent involved in the purchase of the property at South Nanango.  They had become friends following that purchase.
11. [11]
    As a consequence of COVID-19 border restrictions, the deceased and the respondent did not have physical contact after the purchase of the property at South Nanango.  They did, however, have daily telephone contact.
12. [12]
    On 13 November 2021, the deceased was admitted to hospital after suffering an ischemic stroke.

The Will

13. [13]
    The Will was in the form of a pro-forma Will kit.  The writing was completed by Saunders.  That writing named the respondent as sole executor and sole beneficiary of the deceased’s estate.  A separate document contained instructions for the care of the deceased’s animals (animal instructions sheet).
14. [14]
    The deceased signed the animal instructions sheet and executed the Will, in hospital, on the morning of 15 November 2021.  Saunders and a friend of Saunders, Rae Burke (Burke), signed as witnesses.

Claim

15. [15]
    The appellant claimed that the Will was not signed by the deceased, and was not rational on its face as there was no provision for the appellant and no explanation within it for that omission.
16. [16]
    The appellant also claimed the deceased did not possess testamentary capacity on 15 November 2021, as she was suffering from metastatic cancer which had spread to her brain; had suffered a stroke on 13 November 2021; had a diagnosed lesion in the left frontal lobe in keeping with metastatic disease; had very subtle hyperdensity within the distal right M1 segment which can create a lack of insight; was noted to be confused and not to have capacity to consent to and/or refuse medical treatment; and had been prescribed significant pain medication.
17. [17]
    By way of defence, the respondent denied the Will was irrational because the deceased did not have a close relationship with the appellant and the appellant was not a natural object of the deceased’s testamentary bounty, whereas the respondent was the deceased’s long-standing and supportive friend and was the natural object of the deceased’s testamentary bounty.  Further, the deceased had testamentary capacity at the time the Will was executed on the morning of 15 November 2021.
18. [18]
    By way of counterclaim, the respondent alleged the deceased made the Will, which was duly executed pursuant to the Succession Act 1981 (Qld).  The respondent claimed relief in the form of a pronouncement for the full force and validity of that Will and for probate to be granted to the respondent as sole executor.

Primary decision

19. [19]
    The trial judge found that having regard to the contents of the hospital records of the deceased’s admission in the period from 13 to 15 November 2021, there was sufficient doubt about her capacity to require the respondent to prove the Will in solemn form.
20. [20]
    The trial judge accepted the evidence of both Saunders and Burke that the deceased had signed the Will on 15 November 2021, in their presence, prior to each affixing their signature to the Will as witnesses.
21. [21]
    The trial judge accepted Saunders’ evidence that Saunders prepared a separate sheet of paper with instructions for dealing with the deceased’s horse and cat and that the deceased affixed her signature to it prior to affixing her signature to the Will.
22. [22]
    The trial judge also accepted that the Will had been handwritten by Saunders, based on instructions previously given by the deceased on several occasions, since her diagnosis of lung cancer and that prior to affixing her signature to the Will, Saunders had started to read the Will to the deceased, who interrupted Saunders saying, “[the respondent] is the executor and beneficiary”.
23. [23]
    The trial judge found that notwithstanding the deceased’s medical conditions and the administration of pain medication, the deceased did have testamentary capacity at the time of execution of the Will.  In support of that finding, the trial judge observed that:

    1. the deceased had a rational reason to make a Will at that time, as she was aware her health was declining;
    2. the deceased had two people to consider in making her Will, the applicant and the respondent;
    3. the deceased had only a few assets to be considered;
    4. the gift of the deceased’s estate to the respondent was rational, having regard to their close friendship of approximately 36 years and the deceased’s strained relationship with the appellant;
    5. the uncontradicted evidence of the respondent, Saunders and Burke was that at the relevant time the deceased knew and understood she was making a Will and knew what she was doing, with the deceased’s wishes as reflected in the Will being consistent with what she had expressed on a number of occasions previously to Saunders; and
    6. that on the morning of 15 November 2021, the deceased had the ability to understand that a Will was being made, an ability to understand what her assets were, an ability to know who she should consider making provision for in her Will and an ability to weigh and evaluate claims on her estate.
24. [24]
    The trial judge found that whilst it may be “open on the evidence that the deceased’s cognition was impaired to some extent at the specific times recorded in the medical notes, on all of the evidence the deceased had sufficient capacity at the time that the Will was executed to meet the requirements of the Banks v Goodfellows test and to make a valid will.”  Accordingly, testamentary capacity had been proven.
25. [25]
    The trial judge further found that the deceased knew and approved of the contents of the Will.  The document corresponded with the deceased’s repeatedly expressed intentions as to the disposition of her estate.  Further, before signing the Will, the deceased repeated that she wanted the respondent to be her executor and beneficiary; and the deceased signed the Will after it had been read to her.
26. [26]
    Finally, the trial judge found that even if the decision was wrong about the deceased having testamentary capacity on the morning of 15 November 2021, there was sufficient evidence to find that the deceased had a more limited capacity that morning of accepting that the document carried out and properly expressed her previously stated intentions, and the deceased in fact confirmed those intentions by repeating those instructions when the Will was read to her immediately before she signed it.

Appeal

27. [27]
    The appellant relies on five grounds of appeal:

1. “1.
   That the primary Judge erred in holding that the deceased did have testamentary capacity at the time the Will was executed when the evidence did not establish the deceased met the Banks v Goodfellow test;
2. 2.
   That the primary Judge failed to give adequate weight to the medical evidence in relation to capacity;
3. 3.
   That the primary Judge erred in having relied on irrelevant evidence;
4. 4.
   That the primary Judge erred in finding that the deceased knew and approved of the contents of the Will;
5. 5.
   That the primary Judge erred in finding the respondent, Julie Saunders and Rae Burke as honest and reliable witnesses by failing to make a detailed and careful analysis of the evidence.”

Evidence

Medical/Allied Health

28. [28]
    The deceased’s medical records revealed her cause of death as metastatic adenocarcinoma of the lung, with other significant causes being a stroke (duration “days”) and smoking.
29. [29]
    The deceased’s doctor, Dr Matthew Mazurka, completed the notification of death documentation.  Relevantly, he recorded the deceased had been admitted on 13 November 2021 due to worsening symptoms and new neurological status.  The clinical notes for that admission recorded she had been noted to have facial droop, slurred speech and described left hand altered sensation intermittently for a few days, with weakness/clumsiness onset the previous afternoon and worse that morning.  At that time, it was resolving, but not at baseline.  She had no chest pain.  Her medical history was noted as metastatic lung adenocarcinoma for which she had been on chemotherapy, but it had ceased.  She also had recent pneumonia.  Oral examination revealed she was speaking in phrases, but had left facial droop.  The treating doctor’s impression was recorded as multi-system pathology in the context of metastatic cancer, with the deceased moving to palliative care, but not at end stage.
30. [30]
    Other medical records revealed that the deceased was admitted to hospital on 13 November 2021 at 11.32 am, after being transported by ambulance.  Her presenting problem was shortness of breath, coughing and clubbed fingers.  On the afternoon of 13 November 2021, the deceased underwent a CT scan.  It revealed an occlusion of the distal right M1 segment, with a 13 x 11 millimetre enhancing left frontal lobe metastatic lesion.  There were also multiple bilateral pulmonary masses in her lungs in keeping with known pulmonary malignancy.
31. [31]
    Prior to that admission, the deceased had been referred for palliative care on 26 October 2021.  An email from the palliative care coordinator dated 5 November 2021 recorded that she had met with the deceased that day and the deceased’s main issues were shortness of breath and a persistent cough.  It noted the deceased fatigued quickly and had requested home oxygen.  The email recorded the deceased lived alone with some support from a neighbour and friends; she lived in a shipping container with no electricity and no bathroom; she had a chemical toilet and a friend took her to Nanango every couple of days where she showered in a public bathroom; the deceased had no “EPOA/AHD/Will”, although she recently got a Will kit; she wanted to remain at home as long as possible; and that the deceased was very attached to her cat and horse, having made arrangements for the cat to be rehomed with a neighbour and enquiries to find a home for her horse.
32. [32]
    The community nurse’s progress notes revealed that in a phone call on 9 November 2021, the deceased advised she was not well, with an increased temperature, but that she had spoken to cancer support and they were not concerned.  Further, on 11 November 2021, the community nurse recorded that the deceased had given a history of having relocated to Nanango two years ago from Logan; that she lived in a shipping container with no electricity and no bathroom; that she was diagnosed in August 2021 with cancer in the lung; that she had one daughter with whom she had contact, but was not close; that her “very best friend” (the respondent) phones every day and they discuss her treatment, symptoms and future plans; that the deceased had social support from friends, including Saunders and neighbours; and that the deceased had not completed an Enduring Power of Attorney, Advance Health Directive or a Will, but that these were in process.
33. [33]
    The progress notes further recorded that the deceased had a persistent cough and often vomited; was very attached to her cat and horse and they were the only reason “I get out of bed”.  The note recorded the deceased continued to smoke, rolling her own cigarettes and a telehealth was booked for 18 November 2021.
34. [34]
    The progress notes recorded that when admitted on 13 November 2021, the deceased stated she had a mobile phone and black purse containing $100 in cash.
35. [35]
    The progress notes for 14 November 2021 recorded that Dr Mazurka assessed the deceased at 9.30 am.  He recorded the deceased was under the impression there was a plan for her to return home with an oxygen cylinder.  The deceased was keen to return to her animals.  It was noted she lived on an acreage property in a shipping container without electricity and oxygen was not feasible.  The plan was to address her home needs so oxygen could be sourced, with palliative care to be arranged.
36. [36]
    The progress notes for that afternoon recorded that the deceased had been given narcotic analgesia with good effect; had been visited by a friend, Saunders, who escorted her outside where the deceased consumed numerous cigarettes; and that the deceased was now resting.
37. [37]
    The progress notes recorded that at 9.30 pm on 14 November 2021, all care was being attended to and the deceased was mobile, but very confused and had to be redirected to her bed.
38. [38]
    The nursing note recorded that at 4.35 am on 15 November 2021, the deceased had been unsettled at times, had mobilised to the toilet and “got lost & couldn’t find her bed.  Redirected with little effort”.  Andrew Calvert, the registered nurse who made that note, had no recollection of those events.  He accepted the note meant the deceased was easily able to be redirected to her bed.  He also accepted a suggestion that patients who have significant cognitive problems, such as may be found in dementia patients, tend not to be able to be easily redirected because they insist that is not their bed.  His concern was to ensure the deceased was safe, comfortable and received appropriate nursing and medical care.  He was not concerned to assess her capacity to make a Will, or to consent to treatment.
39. [39]
    At 9.00 am on 15 November 2021, Dr Mazurka recorded that the deceased had been confused overnight and had demonstrated ineffective cough and more prominent drooling with swallow concerns that morning; that he had reviewed the deceased’s condition the previous afternoon, with Saunders present; that the deceased was oriented as to person and place; that a chest x-ray revealed progression of the metastatic disease; that the deceased was not keen for further treatment; that there had been a discussion with the deceased about her prognosis, given the level of deterioration; and that if the deceased continued to have ongoing confusion and no improvement, certain medication was to cease the next day.
40. [40]
    The nursing note for 3.05 pm on 15 November 2021 recorded the deceased appeared to have more difficulty swallowing tablets and food, with increased drooling from both sides of the mouth.  It was noted the deceased was out on leave to visit her horses with her friend, Julie (Saunders).  The deceased had a hospital wheelchair and oxygen and had returned to the ward at 3.15 pm.
41. [41]
    The progress notes recorded a note by a dietitian at 4.30 pm on 15 November 2021 that there had been a phone call at 1.00 pm from the nurse at the Nanango Hospital, who reported the deceased was not tolerating food, with food needing to be extracted from the mouth.  The deceased also required speech pathology, but there was no local service available.  It recorded recommendations for thicker fluids.
42. [42]
    At 5.30 pm on 15 November 2021, Dr Mazurka recorded the deceased had been given leave with her friend “Julie” and had managed to see her animals.  It was noted the deceased had ongoing confusion and swallow concerns.  There was a plan for palliative care.
43. [43]
    Dr Mazurka made an additional note at 7.10 pm on 15 November 2021.  He had been asked to review as the patient was acutely worse.  Dr Mazurka recorded he had had a discussion with the deceased, who was “unable to clearly voice treatment wishes”, and there had been a further discussion with her friend Julie, regarding her ongoing treatment.  It was noted the deceased would be transferred to a single room.
44. [44]
    A nursing note, at 10.00 pm on 15 November 2021, recorded the deceased had had morphine and had been visited by friends that shift.
45. [45]
    A nursing note, at 6.00 am on 16 November 2021, recorded the deceased had pain relief and had been moved for comfort due to a steady decline in her condition.
46. [46]
    At 8.15 am on 16 November 2021, Dr Mazurka recorded the deceased had progressively impaired swallowing over the past 48 hours and was now unconscious and unresponsive.  The treatment plan noted that both Saunders and the respondent had been notified.  The respondent was to attempt to contact the appellant.
47. [47]
    At 3.00 pm on 16 November 2021, a social worker note recorded there had been telephone contact with the appellant.  The appellant was upset she was unable to get any information due to not being listed as a contact or next of kin.  The appellant requested if the deceased became awake enough to speak, for the hospital to contact the appellant so she could talk to the deceased.  The appellant was also recorded as requesting the social worker contact Saunders, who was listed as the next of kin, to have her contact the appellant.  The social worker advised the appellant she was unable to provide information into why her mother declined treatment and the appellant could request medical records under a freedom of information request.  It then recorded there was a phone call to Saunders requesting she contact the appellant.
48. [48]
    At 4.00 pm on 16 November 2021, the nursing notes recorded there had been a phone call from the appellant who was quite upset she had not been notified of her mother’s illness.  The appellant was told the nurse would contact the social worker to discuss options for release of information.  It further recorded the deceased’s friend, Julie, visited and video called the appellant.  An addition to the note recorded Saunders had taken home, with the respondent’s permission, the deceased’s purse, including $100 cash and her mobile phone.
49. [49]
    At 10.00 pm on 16 November 2021, a nursing note recorded the deceased’s condition had continued to deteriorate; she had been visited by Saunders; and that whilst attending care at 6.30 pm, the deceased had ceased respiration and had no detected heartbeat, with death at 6.45 pm.  It further recorded the respondent, Saunders and a funeral home had been notified of the death.
50. [50]
    At 7.15 pm on 17 November 2021, a nursing note recorded there had been a telephone call from the appellant, enquiring about the deceased’s belongings.  It was documented that Saunders had taken the purse home and as the appellant was not the next of kin or contact, they were unable to disclose any other information.  The note recorded “[the appellant] had previously spoken to ‘that other woman’ & was told very little”.  The appellant was advised to call back in the morning.

Appellant

51. [51]
    The appellant gave evidence that she had contact with the deceased “every couple of months” and had recently spoken on the appellant’s 40^th birthday in October 2021.  However, their relationship had been strained over the past few years.  The respondent “was a neighbour when I was growing up and had an on/off friendship with [the deceased] over the years.”  Saunders was the deceased’s “realtor and friend”, who assisted the deceased in the months prior to her death; however, the deceased had never mentioned Saunders to the appellant and was not friends with her on Facebook.
52. [52]
    The appellant said Saunders and the respondent had frequent contact with each other in the weeks before the deceased’s death.  Further, Saunders had taken the deceased out of hospital on the afternoon of 15 November 2021, being the day before she died, advising it was for the deceased “to see her animals”.  The appellant said Saunders “allegedly had [the deceased] sign a Will which was handwritten by [Saunders] prior to returning [the deceased] to the hospital ward at 3.15pm” and whilst the medical records detailed that Saunders had advised hospital staff she was taking the deceased to see her horse, there was no disclosure made about having a Will signed.  Further, prior to that alleged signing, a doctor had ticked the option on an Acute Resuscitation Plan document that the deceased did not have capacity to make medical decisions.
53. [53]
    The appellant further stated that a perusal of medical records for 15 November 2021 recorded that the deceased was disorientated, suffered confusion and was unable to state her wishes, and that the respondent had repeatedly stated the deceased’s mental capacity was severely impaired after she had suffered a stroke days prior to her death.
54. [54]
    The respondent had also advised hospital staff, on the morning of 16 November 2021, that she would personally contact the appellant, but only did so that afternoon when she telephoned to advise the deceased was dying of cancer in hospital, was unconscious and expected to pass away shortly.  The appellant said she had no idea the deceased was sick and that when she had spoken to the deceased for her 40^th birthday, the deceased did not advise of her illness.
55. [55]
    After the appellant was advised the deceased had died at 6.30 pm on 16 November 2021, she arranged for a funeral.  On 17 November 2021, Saunders advised the deceased had made a Will which was in Saunders’ possession, but Saunders was not at liberty to disclose further information.  Later, Saunders sent a text advising the Will was with a firm of solicitors.
56. [56]
    In cross-examination, the appellant accepted she had formed a friendship, in late 1980s/early 1990s, with one of the respondent’s daughters.  She agreed the deceased and the respondent were friends.  The appellant accepted there had been a strain in her relationship with the deceased from 2001; and that after the deceased moved to Queensland in 2008, the deceased told her the suburbs in which she lived, but not the specific addresses.
57. [57]
    The appellant accepted that in late 2017, she had a conversation with the respondent in which she said that the deceased was “not good for my mental health and I’m cutting her off.”  The appellant said her relationship with the deceased was very up and down.  They did, however, speak on the telephone and the appellant had visited the deceased when she moved to Queensland.
58. [58]
    The appellant accepted she sent a text message to the deceased on 26 December 2019, in which she stated she “genuinely” did not want the deceased to contact her; that she did not “want anything” from the deceased; that she did not want the deceased’s money or any of her assets; and that the deceased should “Take me out of your Will”.
59. [59]
    The appellant accepted that her house security system recorded a telephone conversation she had with the deceased on 3 October 2021.  She did not tell her mother the conversation may be recorded by the cameras, but denied she was secretly recording anyone’s conversation.  The appellant agreed she listened to the conversation and transcribed it the day after the deceased’s death.  In that conversation, the appellant had said the deceased was “closer with other people who become your family”.  The appellant denied she was referring to the respondent.
60. [60]
    The appellant accepted that prior to speaking to the deceased on 8 October 2021, the day of her 40^th birthday, the appellant had sent a text message in which she had said she felt nothing towards the deceased and the appellant’s biological father.  The appellant accepted that was the last contact she had with the deceased.
61. [61]
    The appellant agreed she had said, in her affidavit, that the respondent was “a prominent female role model in my life for the past 35 years”.  The appellant said she was like a second mother to her.  She accepted the deceased and the respondent spoke very often.
62. [62]
    The appellant accepted she had a telephone conversation with the respondent on 18 November 2021, also recorded by her home security cameras.  She did not tell the respondent the conversation was recorded.  In that conversation, she told the respondent she had last seen her mother in 2017.  She also agreed she referred to the handwritten Will; said the respondent would have been “the only trusted person”; and had agreed the respondent loved the deceased like a sister.

Respondent

63. [63]
    The respondent gave evidence that she had been a close friend of the deceased since they met in about 1985.  During this friendship, she had looked after the appellant.  The respondent remained a constant friend and confidant to the deceased, even after she moved to Queensland.  In the last few years, the deceased had come to rely on the respondent emotionally.  On occasions, the respondent helped the deceased financially.
64. [64]
    The respondent was aware the deceased did not have a close, loving relationship with the appellant.  It was “on again, off again”.  In October or November 2017, the appellant had said the deceased was not good for her mental health and she was cutting her off.  The respondent had also been told by the deceased, after she purchased the South Nanango property, that she did not know the appellant’s address and had not told the appellant she had moved to Nanango.
65. [65]
    In early 2021, the deceased developed a persistent cough.  When the deceased obtained an x-ray, it revealed a growth.  The deceased told the respondent she had cancer.  Once the deceased had received that diagnosis, the respondent and the deceased spoke daily, sometimes twice a day.  Border closures during COVID-19 made it impossible for the respondent to visit her.
66. [66]
    On 24 August 2021, the deceased telephoned the respondent to advise that the tumour had spread and that in order to get a copy of her MRI results, she had to email a copy of her driver’s licence.  The deceased sent photographs of her driver’s licence to the respondent.  The respondent sent an email to Queensland Health attaching the photos and advising she was the deceased’s closest friend and next of kin, and was sending it on behalf of the deceased in order to obtain her MRI results.
67. [67]
    During this period, the respondent asked the deceased to tell the appellant of her condition.  The deceased was adamant she did not want the appellant to know and asked the respondent to promise not to tell her or anyone else who may have contact with the appellant.  Sometime later, the deceased told her that when she rang the appellant, the appellant said, “What the fuck are you ringing me for?”
68. [68]
    On 8 October 2021, the deceased forwarded text messages from the appellant sent in 2019 and 2021, in which the appellant described being angry with the deceased and her biological father.  The appellant had also said she did not want any of the deceased’s money or assets and wanted to be taken out of her Will.
69. [69]
    About a month or so after the deceased was diagnosed with lung cancer, the deceased said to the respondent, “I gotta do my Will.  I gotta do my Will”.  During the deceased’s illness, the deceased spoke to her on many occasions about her Will.  On not one occasion did the deceased mention the appellant as beneficiary.  A home for retired racehorses was thought by the respondent to be the top of the list.  On several occasions, the deceased asked if the respondent would be executor.  However, there was never any mention of the respondent being beneficiary.
70. [70]
    In about September/October 2021, the deceased rang and told the respondent a nurse had come to her home.  The deceased said, “The only help I want is with my Will, but they won’t help me”.  The deceased also said she was worried about finding her horse a home.
71. [71]
    In about October/November 2021, the deceased rang and said that palliative care had come to talk to her about making a Power of Attorney and Will.  The deceased asked about executors.  The respondent explained that an executor administers the estate according to the Will.  The respondent told the deceased she was happy to be executor.  The deceased made no reply.
72. [72]
    On a date the respondent could not recall, the deceased called to tell her she had asked Saunders to buy a Will kit.  The respondent had never met Saunders and, at that time, had not spoken to her.  The deceased had first mentioned Saunders in about April 2019 when she bought the land in South Nanango.  The deceased told the respondent she had unsuccessfully tried to pay Saunders for groceries and the Will kit.
73. [73]
    On the afternoon of 12 November 2021, the deceased telephoned and spoke for 30 minutes.  The respondent encouraged the deceased to go to hospital, as the respondent thought she had a fever and had had a mild stroke, as she was dropping things.  The respondent described the deceased as in good spirits, although she was always worried about leaving her horse.
74. [74]
    Around midday on 13 November 2021, the respondent missed a telephone call from the deceased.  She was then telephoned by Saunders.  This was the first time she spoke to Saunders. Saunders told her the deceased was annoyed because the respondent had not answered her phone and the deceased had called Saunders asking for a lift home from hospital.  The deceased believed she was going home.
75. [75]
    On 14 November 2021, the respondent spoke to the deceased twice.  First, in the morning for 20 minutes and second, in the evening for 13 minutes.
76. [76]
    On 15 November 2021, the respondent telephoned the deceased in the morning, but the deceased did not answer.  Saunders later telephoned the respondent to say she was taking the deceased out to her property so that she could see her animals.  Some of the neighbours were going as well.  Saunders said she would telephone from the property so that the respondent could speak to the deceased.  Saunders did telephone at 2.18 pm that day (Queensland time).  The deceased asked if the respondent remembered the book she was going to write.  When the respondent said she did, the deceased replied, “this is my final chapter”.
77. [77]
    On 16 November 2021, at approximately 9.30 am, the respondent received a telephone call from the deceased’s doctor.  He advised they were going to keep her comfortable.  The respondent told the doctor she needed to let the deceased’s daughter know she was so unwell.  The respondent said she was unable to phone the appellant until 1.00 pm that day.  They spoke for 35 minutes.  She told the appellant the deceased was in hospital, was very ill and she should call the hospital.  The appellant replied, “Well I didn’t even know where the fuck she lived”.
78. [78]
    The respondent said she received a telephone call from the hospital at approximately 8.00 pm that evening, to advise the deceased had passed away.  The respondent informed the appellant at 8.15 pm that evening.
79. [79]
    The respondent said she had encouraged Saunders’ friendship with the deceased as the deceased needed a female to help her into town and with showering.  The respondent had more contact with Saunders once the deceased went into hospital.  The respondent described the appellant as being estranged from the deceased for so long and as having a bitterness.  The respondent denied she had an on-off relationship with the deceased.
80. [80]
    The respondent said the deceased never told her she made a Will, or that she was the executor or a beneficiary.  She first learned that the deceased had made a Will on 17 November 2021 when Saunders told her the deceased had made a Will in which the respondent was the executor and beneficiary.  The respondent asked Saunders to take the Will to a local solicitor’s firm.
81. [81]
    The respondent said the appellant advised her, in a telephone conversation on 18 November 2021, that the appellant was contesting the Will.  Subsequently, the respondent was advised by solicitors to renounce being executor of the Will.  She took that advice and signed a renunciation on 29 November 2021.
82. [82]
    The respondent said she regretted not informing the appellant of the deceased’s illness.  Her loyalty was to the deceased and the deceased was the person to let the appellant know.  The respondent said as her illness progressed, the deceased again brought up her Will.  She said she wanted to leave the respondent’s children her estate.  The respondent told her to not dare do what her mother had done and leave her daughter out.  The respondent did not recall the deceased saying anything in response.
83. [83]
    In oral evidence, the respondent said the 2019 text message was forwarded to the respondent on 8 October 2021, at the same time as the 2021 message.  The respondent did not raise those messages with the appellant.
84. [84]
    The respondent accepted the deceased had gone downhill whilst in hospital.  However, the deceased was talking to the respondent on the Sunday (14 November 2021) and on the Monday (15 November 2021).  The respondent last spoke to the deceased on the Monday afternoon, when she was at her property.  The call was made off the deceased’s telephone.
85. [85]
    The respondent said she tried to telephone the deceased on the Tuesday (16 November 2021), at about 6.30 am (Queensland time).  The nurse did not say the deceased was unconscious; she said that the deceased could not talk to her.  When the doctor rang later that morning, the respondent was in her vehicle taking her grandson to playgroup.  The doctor had not told her the deceased would be dead that day.  The doctor said they were making the deceased comfortable.  The respondent told the doctor the appellant was not aware of the deceased’s condition and that the respondent was seeing the appellant on Friday (19 November 2021).  The doctor said not to leave it until Friday.  As soon as she returned home from playgroup, she rang the appellant.  The respondent denied telling the appellant the deceased was unconscious and would never be waking up.

Saunders

86. [86]
    Saunders gave evidence that she first met the deceased in April 2019, when the deceased purchased the property in South Nanango.  They maintained a casual friendship.  In late July/early August 2021, the deceased told Saunders of her cancer diagnosis.  Thereafter, Saunders saw more of the deceased.  On two occasions, she collected the deceased from hospital after she had been taken there by ambulance.  She also drove her to Brisbane for tests.  During their conversations, the deceased always mentioned the respondent.  Saunders asked for the respondent’s number in case she needed to contact her on behalf of the deceased.  The deceased told Saunders that everything would go to the respondent as she was her best friend.
87. [87]
    In September 2021, the deceased spoke to Saunders about her diagnosis.  Saunders asked whether the doctor had told the deceased to get her affairs in order.  This led to a conversation about making a Will.  Saunders asked the deceased on a couple of occasions if she had told the appellant of her diagnosis.  Once, the deceased volunteered she had rung the appellant and all the appellant did was complain, so the deceased told the appellant to “have a good life” and hung up.  Saunders said when she was driving the deceased to Brisbane, she asked the deceased if she had spoken to the appellant.  The deceased said, “You do not know anything about us, so don’t go there”.
88. [88]
    On one of her visits in early October 2021, the deceased told Saunders she would have to sell her property to pay for her funeral.  Saunders told her she could be cremated with a court application and the costs would come out of her estate.  Selling her property would mean she would have to find somewhere else to live.  The deceased said she needed to do a Will so that the respondent got everything.
89. [89]
    Saunders said she offered to find out about the costs for preparation of a Will.  On 6 October 2021, Saunders telephoned two solicitors.  There were not any appointments available for two to three weeks.  The Public Trustee also had a long waiting list and suggested a post office Will kit.
90. [90]
    On 4 November 2021, the deceased telephoned Saunders and asked her to buy some groceries.  Saunders assumed the deceased had not yet bought a Will kit from the post office, so she purchased one at the same time.  When she delivered the groceries, they sat outside together and read the Will kit.  The deceased once again told her that the respondent was executor and beneficiary.  They did not discuss what the deceased’s assets were and Saunders did not know the deceased’s finances.
91. [91]
    During this conversation, Saunders told the deceased of someone she knew who left a small inheritance to a relative so they could not contest the Will.  Saunders suggested the deceased leave something small to the appellant so she could not contest the Will.  The deceased did not reply to this suggestion.
92. [92]
    Neither the deceased nor Saunders wrote anything in the Will kit that day.  Saunders told the deceased she should ask the health care worker, who was visiting the next day, to help with the Will.  During this conversation, the deceased appeared to be alert and rational.
93. [93]
    On 10 November 2021, the deceased telephoned Saunders and asked her to take her shopping. The deceased seemed alert and rational.  On the following Saturday (13 November 2021), the deceased telephoned asking if she could collect her from hospital.  Later, the deceased telephoned to say she was going to another hospital for a scan.
94. [94]
    On the following day (14 November 2021), Saunders telephoned the deceased who was still in hospital, but hoping to get home.  When she visited the deceased, the doctor said there was nothing more that could be done.  The deceased expressed a desire to go home to the animals.  As the deceased was on oxygen, it could not be organised until the following day (15 November 2021).
95. [95]
    When the doctor left, the deceased and Saunders went through the deceased’s telephone contacts alphabetically, to notify friends she was in hospital.  When Saunders came to “Linda”, the deceased said “no”.  Saunders asked if Linda was her daughter.  The deceased said “yes”.  Saunders thought she contacted six people.  All were local.  There were no family members.  Saunders said she asked whether Linda was her daughter after the deceased had said no to contacting her.  Whilst the deceased had previously told her she had a daughter, the deceased never talked about her and did not say her name was Linda.
96. [96]
    Saunders said the deceased asked her to get the Will from her home, after they had been through her contacts.  The deceased said it was on a chair, in a plastic bag.  When Saunders returned with the Will, the deceased was asleep.  Saunders said she asked a nurse who was listed as a contact person for the deceased.  The nurse replied there was not a next of kin or contact person.  Saunders asked that her name be put as a contact.  The next day, Saunders asked that the respondent’s name also be listed, as the deceased’s best friend.
97. [97]
    On the morning of 15 November 2021, Saunders wrote in the Will kit, at her home, prior to going to the hospital.  She understood the deceased’s instructions, having heard them several times.  She knew the deceased was having trouble with fine motor movements.  The deceased was unable to roll her cigarettes on the Sunday (14 November 2021).  The Will kit had space for two signatures.  Saunders also knew, from her own Will, that there was a requirement for two witnesses.  Saunders rang her friend, Burke, and asked if she would come to the hospital to witness the Will.
98. [98]
    When Saunders arrived at to the hospital on the morning of 15 November 2021, she telephoned Burke to tell her the COVID-19 signing in procedures for the hospital.  When Burke arrived at the hospital, Saunders introduced Burke and told the deceased Burke was going to witness the Will.
99. [99]
    Saunders said she started reading the Will to the deceased.  The deceased interrupted and said, “[the respondent] is the Executor and Beneficiary”.  Saunders said she showed the deceased each page, reading the funeral directions, to which the deceased indicated cremation, and body organ donations, to which the deceased indicated no.
100. [100]
     Saunders said the Will kit instructions said if there were any special instructions, to leave them with the Will.  As Saunders had not found a suitable home for the horse, she wrote in the animal instructions sheet that the horse was to go to the most appropriate home, with Saunders to decide.  Saunders left out the spelling of the cat’s name.  She asked the deceased how to spell it.  The deceased’s response was “M-A-Y-L-E-R”.  The deceased repeated the spelling.  Saunders filled in the cat’s name in the animal instructions sheet.
101. [101]
     That document was signed by the deceased, before the Will was signed.  Saunders and Burke witnessed her signing it.  Saunders said the deceased signed the Will.  Saunders and Burke signed as witnesses.  Saunders dated the Will and took it with her when she left the hospital.  On Wednesday (17 November 2021), Saunders delivered the Will to solicitors, on instructions from the respondent.
102. [102]
     Saunders said she waited all morning of 15 November 2021 for a wheelchair.  At about 12.30 pm, she took the deceased home with portable oxygen.  The deceased saw and kissed her horse and cuddled her cat.  Others came to see the deceased.  When they were alone together at the property, the deceased said, “I am dying”.  Saunders agreed, but said maybe she could prove everyone wrong.
103. [103]
     On the Tuesday morning (16 November 2021), the deceased was unconscious.  Saunders was prompted by a nurse to nominate a funeral home.  Saunders texted the deceased’s friends to come and say goodbye.  While she sat with the deceased, she tidied her bag and told the nurse she would take her phone and wallet.
104. [104]
     At about 2.30 pm that day, Saunders received a telephone call from a social worker asking Saunders to phone the appellant as the hospital would not give her any information, as she was not listed as a next of kin.  This was the first time she had spoken to the appellant.  The appellant said she did not know the deceased was living in Nanango and said she had found out her mother was living like a bogan.  The appellant demanded to speak to her mother.  Saunders told the appellant the deceased was unconscious.
105. [105]
     Saunders returned to the hospital.  The appellant demanded a video call as she wanted to see her mother.  Saunders said a nurse was listening in, due to “the very rude nature” of the appellant.  The nurse and Saunders decided to use Messenger video.  A video call took place.  Saunders heard the appellant repeatedly telling her mother she loved her.  She did not hear the deceased say “I love you” back.
106. [106]
     Saunders said the appellant asked her many questions.  One was how Saunders came to be there.  Saunders told the appellant, “I stepped up to look after [the deceased]”.  During this telephone conversation, Saunders said she told the appellant how she had taken the deceased home with oxygen so she could see her animals and how she had texted her few friends to come and see her as she was at home.
107. [107]
     Saunders returned to the hospital once more at about 5.30 pm that day.  She left at about 6.20 pm.  The hospital phoned at about 7.05 pm to say the deceased had died.  Saunders telephoned the respondent and asked her to let Saunders know after she had spoken with the appellant.  The respondent phoned at about 8.00 pm.  Saunders then texted the deceased’s friends to say the deceased had passed away.
108. [108]
     At about 9.00 pm that night, Saunders received a telephone call from the funeral home to say the appellant was saying she was next of kin and wanted to take responsibility for the body.  Saunders said she confirmed the appellant was the deceased’s daughter and could be responsible for her body.
109. [109]
     In a further affidavit, Saunders said she worked as a registered nurse, from 1982 to 2015, before starting her own real estate business in 2015.  Before the deceased died she had a horse, a cat and three chooks.  On 10 November 2021, the deceased told her she had given two chooks to a neighbour.
110. [110]
     Saunders said prior to preparation of the Will, the deceased and Saunders discussed a Will at least half a dozen times.  On every such occasion, the deceased said she wanted to leave everything to the respondent.
111. [111]
     On 4 November 2011, when they read through the Will kit together, the deceased was alert and rational.  There was no vagueness in her speech.  She had no sign of wandering thoughts.  Saunders had no difficulty in understanding the deceased.  The same situation existed on 10 November 2021, when she took the deceased shopping.
112. [112]
     On 14 November 2021, the deceased she was receiving oxygen via a prong in each nostril.  This did not interfere with the deceased’s speech.  Saunders recalled the deceased had difficulty rolling a cigarette.  Whilst at the hospital, a doctor came into the deceased’s room to let her know the bad news.  When the deceased complained of abdominal pain, Saunders asked the doctor not to give the deceased any strong medication until the Will was signed.  At that time, the deceased showed no sign of vagueness or confusion.  Saunders had no difficulty in understanding the deceased.
113. [113]
     Saunders said when she went to collect the Will kit it was on a chair, in a plastic bag, as described by the deceased.  It was the same plastic bag as when Saunders gave it to the deceased on 4 November 2021.
114. [114]
     When Saunders arrived at the hospital on the morning of 15 November 2021, the deceased recognised her and did not appear to look different.  Saunders assisted the deceased to sit up so she could see and sign the Will and the animal instructions sheet.  The deceased had oxygen prongs in each nostril.  Her speech may have been slurred, but Saunders had no trouble understanding the deceased.  At no time during that morning was the deceased vague or confused.
115. [115]
     When Saunders drove the deceased to her home at about 12.30 pm, the deceased showed no sign of vagueness or confusion and had no problems communicating with Saunders.  After an hour or so, Saunders noticed the deceased was starting to become vague, sucking on her oxygen tube as if it were a cigarette.  She decided to take her back to the hospital.
116. [116]
     In oral evidence, Saunders accepted the deceased did not ask her to purchase the Will kit.  Saunders said she raised leaving something to the appellant, as she had a preconceived opinion about the possibility of the appellant challenging the Will given the deceased never talked about the appellant to Saunders.  Saunders said she once asked the deceased if she had family.  The deceased replied she had a daughter.
117. [117]
     Saunders said when she spoke to the solicitors, she did not elect to book an appointment in two to three weeks.  Saunders wanted to discuss the alternatives before making a booking.  The deceased did give a definite view of wiping out the solicitors because of the cost and time.  There was an even greater delay for the Public Trustee.  There were no further discussions between her and the deceased thereafter before Saunders purchased the Will kit.  Saunders chose to buy it because the deceased had not made any mention of buying it and she knew the deceased was not allowed to drive.  Saunders assumed the deceased had not yet brought the Will kit.  Saunders bought it with her own money.  It was there as an option.
118. [118]
     By 4 November 2021, the deceased had undertaken chemotherapy, reacted very poorly and was refusing further treatment.  The deceased would tell Saunders that everything was to go to the respondent but there was nothing in writing.  Saunders considered it very important to have your affairs in order when you have cancer on the brain and of the lungs.
119. [119]
     In the Will kit, there was an instruction that any special instructions were to be left with the Will kit so they were not lost.  Saunders did not write the special instructions regarding the animals in the Will because it did not form part of the Will.  When Saunders and the deceased read the Will kit on 4 November 2021, they had discussed the animals.  Saunders and the deceased decided the animals would be included in a separate document as the Will kit stated that personal messages should be left with the Will.
120. [120]
     Nothing further was added to the Will when Saunders went to the hospital.  The cat’s name was left blank and added to the animal instructions sheet before it was signed and witnessed at the hospital.  The date was completed at the hospital.  Saunders accepted she knew the cat’s name before preparing the document.  She did not think “Mayler” was how you would spell “Marlie” but that was the deceased’s spelling.  Saunders did not think it was strange at the time.
121. [121]
     Saunders said she had not met the respondent.  She first spoke to her when the respondent rang in August 2021.  Saunders did not ever have any discussions with the respondent about the deceased’s Will.  Saunders did have a discussion with the respondent on the afternoon or evening of 14 November 2021 to tell her the deceased was deteriorating and that she had been told there was nothing more that could be done.  Saunders said she asked the respondent for the spelling of her name and her address.  The respondent’s response was to cry and ask was the deceased going to die.  Saunders said she would have told the respondent she needed those details as she was doing the deceased’s Will.  Saunders could not recall whether she said she needed them so she could fill out that the respondent would be executor and beneficiary.
122. [122]
     Saunders arrived at the hospital with the Will in the morning, just after 9.00 am.  The doctor was not present.  Saunders did not recall a doctor coming into the room that morning before signing the Will.  Saunders may have told the respondent that afternoon that a Will had been completed.
123. [123]
     Saunders said she gave the respondent a copy of the documents after the appellant had rung looking for the Will on the morning of 17 November 2021.  Saunders denied swearing when she returned the appellant’s call that morning.  She probably made a comment that there was not any money.  Saunders knew there was no money because she had lent money to the deceased a couple times.  Saunders said that “fairly well straight away” after receiving the appellant’s email address by text, she contacted the respondent, asking her what she should do.  The respondent said, “what’s in the Will?”  Saunders told her she was the executor and beneficiary; the respondent replied, “no, I told her not to leave it to me”.
124. [124]
     Saunders took the deceased’s wallet, phone and car keys from the hospital because of identity theft.  The deceased could not protect those items as she was unconscious.  As a former nurse, Saunders knew of the importance of valuables.  Saunders put them in a bag at her home.  Saunders did not use the phone to notify anyone.  She did not remove any information from the phone.

Burke

125. [125]
     Burke gave evidence that she had been a friend of Saunders for about 10 years.  On 15 November 2021, Saunders telephoned her to request she go to the Nanango Hospital as there was a Will she needed another person to witness, for a friend.  This was the first time Burke had met the deceased.
126. [126]
     Saunders told the deceased that Burke was there to witness her sign her Will.  Burke could not recall what the deceased said in reply, but described her as seemingly anxious by the expression on her face.  Burke and Saunders helped the deceased up in a seated position.  Saunders then left the room for a short time.  Burke remained with the deceased.  The deceased was able to talk sensibly.  She told Burke about her horse and the horse’s name.  She also spoke of how grateful she was for Saunders’ friendship.  When Saunders re-entered the room, the deceased showed them a photo of her horse on her phone.
127. [127]
     Saunders put the Will on the bedside table and read it to the deceased.  The deceased appeared to listen.  Burke could not recall the deceased saying anything.  Burke then saw Saunders give the appellant a pen and saw the deceased sign the Will.  Burke described the deceased as looking relieved after signing the Will and the animal instructions sheet.  After she signed, she pushed the pen aside.  Burke and Saunders signed the Will and animal instructions sheet.
128. [128]
     In oral evidence, Burke said she could not recall what time she received the call from Saunders, but it was in the morning.  She also could not recall what time she arrived at the hospital, but said it would not have been terribly long after the telephone call; maybe half an hour.  There were COVID-19 entry requirements at the hospital.
129. [129]
     Burke described the deceased as very thin, very drawn and looking really sick.  She was lucid.  The deceased spoke about her horse and her eyes brightened.  Burke described the deceased as very joyful when speaking about her horse. Burke absolutely understood everything the deceased was saying to Burke.
130. [130]
     There were two documents; one regarding what would happen to the animals and the Will.  Burke believed it was a full Will kit, with the instructions.  The deceased signed first.  She did not need assistance to sign.  Burke believed the deceased signed the animal instructions sheet first.  The deceased’s hand was not shaking; it was reasonably steady, perhaps with a slight tremor.  There were no facial features consistent with a stroke.  She did not have any issue pushing the pen away.  The deceased was also able to use her core to sit up without slumping once she had been sat up.

Consideration

131. [131]
     As Saunders’ evidence is relevant to many of the grounds of appeal, it is convenient to first deal with ground 5.

Ground 5

132. [132]
     The appellant submits the trial judge erred in finding the respondent, Saunders and Burke honest and reliable witnesses, by failing to make a detailed and careful analysis of the evidence.
133. [133]
     In considering this ground, there are a number of key features of the evidence relevant to the acceptance of the reliability and honesty of these witnesses.
134. [134]
     First, nothing in the evidence supported a finding of collusion between the respondent and Saunders in relation to the circumstances of the execution of the Will.
135. [135]
     Whilst the appellant submits there was inconsistency as to the frequency and dates of communications between the respondent and Saunders in relation to the Will and Saunders gave evidence that, prior to execution of the Will she had sought details of the respondent’s name and address, those circumstances were not relevant to the central issue, namely, the deceased’s capacity and functioning at the time of execution of the Will on 15 November 2021.  Each gave evidence which was materially consistent in respect of that central issue, as did Burke.  Any inconsistencies on other issues were explicable by reason of the fact that honest witnesses often have differing recollections of events some time ago.
136. [136]
     Second, Saunders’ evidence in relation to the circumstances in which the Will was prepared and executed remained consistent in all material aspects.  Contrary to the appellant’s submissions, Saunders did give evidence explaining why the Will kit option was pursued; the deceased had rejected the options of solicitors or the Public Trustee, having regard to the constraints of time and cost.
137. [137]
     Third, Saunders gave a logical explanation for why she chose to purchase a Will kit on 4 November 2021, notwithstanding there being no specific request by the deceased to do so.  The deceased did not have an ability to drive and her condition was deteriorating towards its terminal phase.
138. [138]
     Fourth, the progress notes independently supported Saunders’ account of purchasing the Will kit on 4 November 2021 and of discussing it with the deceased.  The palliative care note for 5 November 2021 recorded the deceased stating she recently “got a Will kit”, consistent with the deceased having knowledge of its purchase.
139. [139]
     Fifth, the community nurse note for 11 November 2021, specifically records that the deceased had reported that completion of a Will was “in progress”.
140. [140]
     Sixth, Dr Mazurka’s note for 9.00 am on 15 November 2021 specifically refers to a discussion with Saunders on the afternoon of 14 November 2021.  That is consistent with Saunders’ evidence of having spoken to the doctor that day.  The difference in time is explained by honest witnesses having different recollections.  Such a difference does not give rise to a conclusion of dishonesty, or inherent reliability when regard is had to all of the evidence as a whole.
141. [141]
     Seventh, Dr Mazurka’s note for 9.00 am on 15 November 2021 specifically records that the deceased, although confused during the previous night, was oriented in person and place.  That is supportive of the evidence of Saunders and Burke as to the deceased being alert and not confused when the Will was executed on 15 November 2021.
142. [142]
     The appellant submits that the recording of this note at 9.00 am was inconsistent with Saunders’ evidence that the doctor was not present when she arrived at the hospital.  However, Saunders’ evidence was an estimate as to the time she arrived and there is no evidence the doctor remained for any extended period after 9.00 am on 15 November 2021.  Burke also gave evidence that it may have been a half an hour after the initial phone call from Saunders before she arrived at the hospital.  Having regard to those matters, this note does not render the evidence of Saunders or Burke as to the execution of the Will unreliable.
143. [143]
     The appellant also relies on Dr Mazurka’s recording, in that same note, with respect to the cessation of medication.  However, a proper reading of that note is that the doctor was recording that if confusion continued, the medication should cease.  It is not a recording that there was confusion.  Such a recording would be internally inconsistent with the specific note that the deceased was oriented in person and place.
144. [144]
     Eighth, the progress notes recorded that the deceased did leave hospital on the afternoon of 15 November 2021, in the company of Saunders, for the purpose of visiting her animals and that she returned having done so.  Those notes were supportive of Saunders’ account of events following the execution of the Will.  That consistency enhanced Saunders’ reliability as a witness.
145. [145]
     The appellant submits that those notes were inconsistent with Saunders’ account as they recorded that the deceased had food suctioned at 1.00 pm that day, medication administered at 2.00 pm, and that the deceased did not return to the ward until 3.15 pm that day, much later than the hour estimate Saunders gave for being at the property, after leaving at 12.30 pm.
146. [146]
     A perusal of the notes does not support the appellant’s submission.  The note in respect of 1.00 pm is a note of a telephone call from a nurse; it is not a note that there was suctioning of food at 1.00 pm.  Further, there is an internal inconsistency within the notes as to the deceased’s return to the ward.  The note itself is recorded as having been made at 3.05 pm, yet it recorded the deceased returned to the ward at 3.15 pm.
147. [147]
     In any event, what is central is that the nursing note independently supports Saunders’ account of the deceased leaving the hospital on the afternoon of 15 November 2021, for the purposes of travelling to her property to say goodbye to her animals.  The fact that the notes recorded the deceased spoke of that visit upon a return to hospital is consistent with the deceased remaining oriented in person and place, after execution of the Will on the morning of 15 November 2021.
148. [148]
     Ninth, Burke’s evidence of her discussion with the deceased, shortly prior to the execution of the Will, supported an acceptance of Saunders’ and Burke’s evidence as to the deceased being alert and not confused.  That evidence included identification of the deceased’s animals and her love for them.  Nothing in the evidence supported a conclusion that Burke was unreliable in respect of that account.
149. [149]
     Having regard to those matters, it was neither glaringly improbable,^[1] nor contrary to the evidence as a whole for the trial judge to accept the evidence of the respondent, Saunders and Burke as honest and reliable.

Ground 1

150. [150]
     The appellant submits that the trial judge’s finding that the deceased had testamentary capacity at the time of execution of the Will was contrary to the evidence, in that the evidence did not satisfy the test in Banks v Goodfellow.^[2]  However, a consideration of the evidence as a whole supports a conclusion that the finding was open.
151. [151]
     First, the trial judge gave specific consideration to the criteria in Banks v Goodfellow and made specific findings in respect of each criterion.  There was no misapplication of principle in respect of those criteria.
152. [152]
     Second, there was ample evidence, once the trial judge accepted Saunders and Burke as honest and reliable witnesses, to support the conclusion that each criterion was met in the present case.  Each gave evidence that the deceased was alert and rational at the time of execution of the Will.  Each gave evidence that Saunders read the Will to the deceased.  Saunders also gave evidence the deceased confirmed her instructions prior to execution of the Will.  Finally, there was evidence the deceased had consistently spoken of making the respondent her sole beneficiary and there was evidence explaining why such a decision was rational, having regard to the deceased’s relationship with the appellant.
153. [153]
     The appellant submits that Saunders’ and Burke’s evidence as to their interaction with the deceased, at the time of execution of the Will, was inconsistent as Burke could not recall the deceased saying anything when the Will was read by Saunders.  However, a consideration of their evidence in respect of this issue reveals a consistency in the core aspects as to the time and place at which the Will was signed, and as to the Will having been read to the deceased by Saunders, prior to its execution by the deceased in their presence.  Any inconsistency in Saunders’ and Burke’s recollection as to whether the deceased said anything at that time was an inconsistency often found in the recollection of honest witnesses.  It did not necessitate a finding of unreliability.
154. [154]
     Third, as discussed above with respect to ground 5, the acceptance of the evidence of both Saunders and Burke as honest and reliable was consistent with a consideration of the preponderance of the evidence.
155. [155]
     In coming to these conclusions, regard has been had to the whole of the evidence.  Whilst that evidence includes medical records referring to confusion in the context of a plainly deteriorating patient, those medical records provide support for the evidence of Saunders and Burke, in key material aspects, as discussed above.
156. [156]
     Further, nothing in Dr Mazurka’s notes for the ward round on the morning of 15 November 2021 gave rise to a reasonable basis to reject the evidence given by both Saunders and Burke, as to the deceased’s ability to understand and comprehend the process undertaken at the time of execution of the Will.  That is particularly so in circumstances where neither stood to benefit from the content of the Will.

Ground 2

157. [157]
     The appellant submits the trial judge failed to give adequate weight to the medical evidence in relation to capacity.  However, the weight to be given to any evidence was a matter for the trial judge, in the context of a consideration of the evidence as a whole.  Further an assessment of capacity requires consideration of more than the medical evidence; it requires a consideration of all of the circumstances.^[3]
158. [158]
     As the trial judge’s findings are not glaringly improbable, they are not properly the subject of setting aside on appeal.  The findings were consistent with a consideration of the evidence as a whole.
159. [159]
     The appellant’s reliance on references to confusion and deterioration do not give due weight to an overall consideration of the contents of those notes.  Such notes revealed the deceased being oriented in person and place at around the time the Will was executed, and of the deceased engaging in discussions as to important aspects of her life, such as her animals, and visiting her property after execution of the Will.

Ground 3

160. [160]
     The appellant submits the trial judge erred in having relied on irrelevant evidence, namely, Calvert’s agreement with a proposition as to the conduct of patients with cognitive problems, set out at [38] above.
161. [161]
     Calvert’s evidence was not irrelevant.  It pertained to a note made by him.  Its weight was a matter for the trial judge.
162. [162]
     In any event, the finding of testamentary capacity was based on an acceptance of the honesty and reliability of Saunders’ and Burke’s evidence, not Calvert’s evidence.

Ground 4

163. [163]
     The appellant submits the trial judge erred in finding that the deceased knew and approved of the contents of the Will.  However, once it was open to the trial judge to accept the evidence of Saunders and Burke as honest and reliable, there is no basis to conclude that the trial judge’s finding in this respect was erroneous or glaringly improbable, on a consideration of the evidence as a whole.
164. [164]
     That is particularly so where Saunders gave evidence that on every occasion that the deceased spoke about making a Will, she indicated a wish that the respondent be the executor and sole beneficiary of her estate, and that the deceased repeated the instructions immediately prior to execution of the Will.  The Will was in those terms.

Conclusions

165. [165]
     The appellant has not established any ground of appeal.
166. [166]
     The trial judge’s findings and orders were consistent with the preponderance of evidence.

Orders

167. [167]
     I would order:

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

168. [168]
     MARTIN SJA:  I agree with Boddice JA.