Campbell v Campbell[2022] QSC 34

SUPREME COURT OF QUEENSLAND

“Darkness and suspicion are common features in will cases: the truth too often is the secret of the dead or the dishonest.  Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is … the requirements of proper form and due execution.  Such requirements … are no mere technicalities.  They are the first line of defence against fraud upon the dead.

The second type of safeguard is the second line of defence.  It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof.  In cases where no suspicion reasonably arises the court will allow inferences … to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution.  But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard.  It must ensure that the burden of proof rests upon the party propounding the will: and “he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.’”

1. [1]
   This statement comes from In the Estate of Fuld, dec’d (No 3) [1968] P 675, 719, a judgment following a probate trial over 95 days.  The words are those of the then Scarman J, save for the last phrase, which is from Baron Parke in Butlin v Barry (1838) 2 Moo PCC 480. This case is concerned with the “second line of defence”.
2. [2]
   Graham Alexander Campbell (Graham)^[1] died in the Princess Alexandra Hospital on 24 December 2019.  He was aged 68.  His primary cause of death was anterior ST-elevation myocardial infarction.  This is a type of heart attack that mainly affects the lower chambers of the heart and the way electrical current travels through them.  Graham had suffered the heart attack at home, two days before his death.  The death certificate also noted, as a secondary cause of death, advanced vascular dementia.

3. [3]
   Roswita Gretel Campbell (Rosy) seeks a grant of probate in solemn form of a Will signed by Graham on 16 February 2016 (the Will).  Rosy was married to Graham for the final four years of his life.  She is named as executor and trustee under the Will. 
4. [4]
   Rosy makes the application in this manner because one of Graham’s children, Danielle Jo Campbell (Danielle), has required proof in solemn form of the Will.  Where, as here, there is some doubt about the capacity of a testator, it is prudent to seek a grant in solemn form and not in common form.  This allows all interested persons an opportunity to be heard.  If successful, the executor obtains the protection of a grant in solemn form.
5. [5]
   Danielle appeared on her own behalf to contest the proof of the Will and the grant of probate.  No one else with an interest in Graham’s estate intervened in the proceeding.  

Legal principles

6. [6]
   Rosy must prove that the Will is the true will of Graham, as she is the person who asserts it is so.  Rosy must prove this on the balance of probabilities, based on the whole of the evidence.  If she fails to do so, the court must pronounce against the validity of the instrument.^[2]

7. [7]
   The Will was the last will made by Graham.  It was attested in the way required by law.  It was executed by Graham in the presence of two witnesses.  The court may accept the attestation as evidence of the proper making of the will.^[3] 

8. [8]
   It is common ground that the evidence establishes a doubt about Graham’s testamentary capacity at the time he made the Will.  The doubt concerns a cognitive impairment or dementia that Graham suffered for some years until his death.  This doubt displaces the presumption of testamentary capacity that might otherwise arise from the regularity and rationality of the Will.^[4] 
9. [9]
   The test for testamentary capacity is settled.^[5]  It has been consistently applied in this court^[6] by reference to the four positive elements and the related negative corollary described by Powell JA in Read v Carmody:

“1. that the testator — or testatrix — is aware, and appreciates the significance, of the act in the law upon 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.”^[7]

10. [10]
    In Frizzo v Frizzo [2011] QCA 308, the Court of Appeal approved the approach of Applegarth J at first instance, which is relevant for the present case:^[8]

“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.^[9]  As was said in Worth v Clasohm:

The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.^[10]

In embarking on that examination, opinion evidence may be led, but courts are not obliged to give it a great deal of weight. Justice Mullins has recently reiterated the propositions put forward by Isaacs J (as he then was) in Bailey v Bailey. Those propositions, relevantly, are (1) that opinions of witnesses as to testamentary capacity are ‘usually for various reasons of little weight on the direct issue’; and (2) that, while such opinions are not without some weight, ‘the Court must judge from the facts they state and not from their opinions’.^[11]

11. [11]
    From “time immemorial” the law has considered a person incapable of making a valid will unless they were “of sound mind, memory and understanding.”^[12]  Rosy must establish positively that Graham had testamentary capacity when he executed the Will.^[13]  As noted, the conventional civil standard of proof applies.  As Meagher JA in Tobin v Ezekiel:

“deciding whether a document is a person’s last will is a serious matter, so any decision should be approached in accordance with Briginshaw v Briginshaw [1938] 60 CLR 336”. ^[14]

12. [12]
    The requirement of the testator’s knowledge and approval of a will is “a shorthand reference to the need for evidence to rebut suspicious circumstances.”^[15]  No evidence was adduced, and no submission put, that a beneficiary was “too involved in the preparation” of the Will.  The Will was prepared by a solicitor, who takes no benefit under it.  He produced a note of Graham’s instructions. The Will is rational.  It makes a bequest of $200,000 to each of Graham’s three children, including Danielle, contemplating that, if any of them predeceased him, then their children – Graham’s grandchildren – would share their deceased parent’s bequest.  It leaves the residue of the estate to Rosy, his only legal spouse.  If she were to predecease him, the residue would go to the three children, or such of them as survived, in equal shares.  The Will also mentioned Joan Kremastos (Joan).  Joan and Graham had divorced.  Shortly before Graham signed the Will, they had agreed a property settlement in the Federal Circuit Court.  According to the Will, he left nothing to Joan because of the divorce and property settlement. 
13. [13]
    The doubt here arises from a medical condition, which was formally diagnosed after the Will was made, but may have been indicated by Graham’s behaviour before that time.  The nature of the “suspicious circumstances” is relevant to the cogency of evidence necessary for Rosy to discharge this onus and so prove Graham had testamentary capacity at the time he executed the Will.^[16]  Or, as Isaacs J expressed it in Bailey v Bailey:

“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.”^[17]

14. [14]
    With these principles in mind, I turn to the evidence before the court.

Witnesses and documentary evidence

15. [15]
    The evidence relevant to Graham’s testamentary capacity when he made the Will comprises first that of witnesses who knew and observed Graham before and after he made the Will, including the solicitor who took his instructions for the Will, drafted it and took Graham through its provisions on the day it was executed. 
16. [16]
    Rosy gave evidence herself, and called two other witnesses: Ms Kylie Pryce, Graham’s financial planner between 2013 and 2019, and Mr Clive Speakman, Graham’s solicitor between mid-2014 and May 2016.  Through her counsel, Rosy tendered, by consent, a trial bundle, comprising two volumes of material.  It became Exhibit 1.  In addition to the affidavits sworn or affirmed by Rosy, Ms Pryce, Mr Speakman, and Mr Wheeldon, Exhibit 1 included a report of Professor Gerrard Byrne, and extensive documentary evidence from medical professionals whom Graham attended and who reported on specialist scans of Graham over this period.  Rosy also called Professor Gerrard Byrne, who was briefed with much of the evidence.  He provided his opinion on Graham’s medical state at the time he made the Will, based on a review of that material.  In his affidavit Mr Wheeldon, another solicitor, identified and exhibited the letter of instructions and the materials given to Professor Byrne.  Through her counsel, Rosy also tendered a bundle of correspondence passing between her solicitors and Dr Smith from 14 December 2018 to 24 May 2019, which helped to explain why Dr Smith provided a short additional comment on Graham’s score in a particular medical examination: see [167] below. Rosy’s counsel also tendered a second affidavit of Ms Pryce. 

17. [17]
    Danielle cross-examined Rosy, Mr Speakman, Ms Pryce, and Professor Byrne.  She did not require Mr Wheeldon for cross-examination. 
18. [18]
    Danielle called Graham’s brother Kevin William Campbell (Kevin) as a witness.  She did not give evidence herself.  Kevin’s affidavit was included in Exhibit 1.  Mr Meredith, for Rosy, cross-examined Kevin. 

19. [19]
    Danielle also tendered three documents: a report from an officer of the Commonwealth Attorney-General’s Department on a complaint Danielle made about the marriage celebrant who officiated at the wedding of Graham and Rosy (AG report); a report of two officers of the Office of the Public Guardian about several complaints Danielle made (OPG report); and an affidavit Graham swore in the Federal Circuit Court proceedings between him and Joan.   
20. [20]
    It is convenient to deal with the uncontested evidence of events in a chronological order, before considering specific evidence of Kevin, Ms Pryce and Rosy.  I will then deal with the medical records, again in chronological order, and the opinion evidence of Professor Byrne. 

Events leading up to the Will

21. [21]
    Early in his working life, Graham completed an apprenticeship as a fitter and turner.  He worked on Stradbroke Island for Consolidated Rutile. 
22. [22]
    When he moved back to Brisbane, he bought a tip-truck and worked for local councils as an owner-driver. 
23. [23]
    In the 1980s Graham taught himself to play acoustic guitar and won several awards and commendations at country music festivals and competitions.  From 1992 to 2012, Graham managed and performed in a four-piece 1950s and 60s rock and roll band, “Guitars & Cadillacs”, which played regularly on weekends.  In the early 1990s he also conducted a bobcat and earthmoving business. 
24. [24]
    For about 22 years from 1994, Graham was a tip-truck owner-driver for the Brisbane City Council (BCC). From 1998, this involved Graham’s company Bellcam Pty Ltd (Bellcam) hiring a tip-truck to the BCC and the BCC employing Graham as a truck driver.  Graham maintained a separate bank account for Bellcam, into which the truck hire fees were paid, and personal accounts into which his wages were paid.^[18] 

Graham before Rosy

25. [25]
    Rosy was Graham’s third wife.
26. [26]
    Graham had married Janice Campbell (Janice), perhaps in about 1970.  Together, they had three children.  Their elder daughter, Tracy Lee Rickertt (Tracy), was born in about 1971; Danielle was born in 1981; and their son, Stewart Graham Campbell (Stewart), was born in about 1988.  Graham and Janice lived at Chelsea Road, Ransome on Brisbane’s South-East with their children.  They separated in February 1996 and later divorced.
27. [27]
    In 1993, Graham began dating Joan, who would become his second wife, some years before his separation from Janice.  He was 42 then and Joan was about 34.  He was married with three children.  She was divorced, with four children.   

28. [28]
    In 1996, when he officially separated from Janice, Graham went to live with Joan at her home in Wishart for a short period.  Then he moved to his own flat in Tingalpa.  After 1997, Joan sold at Wishart and bought a home at Capalaba, where she lived with her four children.  Graham went to live in a small post-war house (the shack) on a property at 2947 Old Cleveland Road, Chandler.  It was a short drive from Joan’s home at Capalaba.  According to Graham’s brother Kevin, Joan was a guarantor of a bank loan on the Old Cleveland Road property, because Kevin had refused to be a guarantor for Graham.  There is some evidence the property may have been purchased in the names of Graham and Joan, and later transferred into Graham’s name alone.^[19]
29. [29]
    In 2000, Graham and Joan became engaged.  On 26 July 2008, they married at a “surprise wedding” during a party at the shack.  By then, Graham was aged 57 and Joan was 49.  
30. [30]
    On 24 July 2008, two days before their marriage, Graham and Joan signed a pre-nuptial agreement.  Graham gave evidence in the Federal Circuit Court that, as he had previously been married, he “wanted to protect my financial position into the future in case my relationship with Joan failed.”  In it, they recorded their respective assets, attributed values to them, and agreed about how “their property shall be divided and determined to ensure a just and equitable distribution” in the event of their marriage ceasing or their separation and divorce.  The agreement was also “for the purpose of avoiding any proceedings in any jurisdiction in relation to the ownership, use and receipt or entitlement to any property”.
31. [31]
    According to the pre-nuptial agreement, Graham owned the property at 2947 Old Cleveland Road (attributed value: $750,000), and the land behind it at 28 Tyberry Street ($700,000).  The agreement noted that Graham also owned a house at 25 Boorana Street, Thorneside, ($350,000, subject to a $60,000 mortgage).  He had a bank investment account ($400,000), a Hino truck ($35,000), and other assets ($36,000).  Graham also had three superannuation funds (with values of $215,000, $270,000, and $95,000). 
32. [32]
    In the agreement, Joan’s assets were her home at Capalaba (attributed value $420,000), a “contingent asset” of ¼ share in the neighbouring house ($110,000), and a ¼ share of a property in Townsville ($250,000).  She had superannuation ($300,000), a bank account ($5,000) and a car and household assets ($29,000).
33. [33]
    On 5 September 2008, Graham made a will, expressed to be in contemplation of his marriage to Joan.  In it, he made a specific bequest of $50,000 to one of his sisters, Gloria Jean Smith (Jeannie).  He gave Joan the right to reside in “any home in which I normally reside” for 12 months after his death, with a right to purchase it at market value at the end of that time.^[20]  Graham left the residue of his estate to such of Joan and his three children who would survive him for 30 days, in equal shares.  He appointed his three children as executors and trustees.  Given Joan’s position as a tenant and a potential purchaser of a home in the estate, the choice of executors seems a rational one.  When he made this will, Graham was 57.  Joan was 49.  His children were aged 37, 27, and 20.
34. [34]
    Graham and Joan had no children together.  They lived separately for most of their relationship, with Joan spending a few days a week with Graham at the shack and the balance at her Capalaba home.  There is some dispute about when Graham and Joan finally separated.  In an affidavit made on 21 January 2016, Graham swore, “Joan moved out completely in May 2012 with her possessions.”  It appears Joan dated their separation to 14 August 2014.  Kevin recalled Graham and Joan going out together on that date.  Their divorce was made final on 26 September 2015.  Their matrimonial property dispute was not settled until 3 February 2016.  It involved a challenge by Joan to the pre-nuptial agreement.

Graham and Rosy

35. [35]
    Graham met Rosy in August 1995, before his separation from his first wife Janice.  Robert Congram (Bob) and Graham were close friends.  Bob was a regular audience member for performances by “Guitars & Cadillacs” at the Wynnum RSL Club.  Bob was known to Kevin and his wife Jean.  In about 1997, Rosy married Bob.  Graham was Bob’s best man, and Kevin and Jean attended the wedding. 
36. [36]
    In mid-2000, Bob and Rosy attended a sort of engagement party for Graham and Joan.  The couples continued to have a close social relationship.  For some time, Rosy and Bob would go to see Graham’s band play every weekend.  According to Kevin, Bob and Rosy would have Graham and Joan over for a barbecue about once a fortnight. 
37. [37]
    In 2010, Bob was diagnosed with brain cancer.  Rosy became Bob’s full-time carer until he died on 3 November 2013.  By this time, Graham had ceased playing in the band.  He visited Rosy and Bob weekly.
38. [38]
    After Bob’s death, Graham kept up with Rosy.  By then he had separated from Joan.  In August 2014, Graham and Rosy began a relationship, and in October 2014, Rosy came to live with Graham.^[21]  On 25 December 2014, Graham proposed to Rosy, and they became engaged.  They could not marry at that time, as Graham’s divorce from Joan was not yet finalised.
39. [39]
    On 28 January 2015, Graham and Rosy visited the solicitor, Mr Speakman.  Since mid-2014, Mr Speakman had been acting for Graham in his matrimonial dispute with Joan in the Federal Circuit Court.  On this occasion, Graham gave Mr Speakman a copy of his 2008 will and instructions for changes to it.  Mr Speakman’s note reads, “Joan Campbell (Kremastos) is to be excluded.”  Otherwise, Graham’s three children were to remain the executors, but were to be able to decide by a majority.  The $50,000 bequest to his sister Jeannie was to remain.  The residue was to be divided between the three children and, if any of the children did not survive Graham, their share was to go to any surviving grandchildren, at age 21.  Mr Speakman prepared the draft 2015 will.  He also prepared an enduring power of attorney (EPA) for Graham. 
40. [40]
    On 9 February 2015, Graham returned to Mr Speakman’s office and executed the 2015 will.  He was given a copy.  The original was retained by Mr Speakman.  At this time, Graham was aged 63.  His children were aged 43, 33, and 26.  Rosy was aged 59.  Graham and Rosy were engaged, but the order dissolving Graham’s marriage to Joan had not been made absolute and their matrimonial property dispute was ongoing. 
41. [41]
    Graham also signed an EPA that day.  By it he appointed his brother Kevin and his sister Jeannie as his attorneys for both financial and personal or health matters.  The appointment began immediately, and the two attorneys were to act jointly.  Graham took the EPA away with him, for the attorneys to read, sign and date.  Kevin signed on 13 February 2015 and Jeannie on 14 February 2015. Kevin recalled signing it on a visit to see Graham and Rosy at Tyberry Street. 
42. [42]
    On 8 May 2015, Joan filed an amended application in the Federal Circuit Court seeking a declaration that there was no pre-marriage financial agreement between her and Graham or alternatively setting aside the pre-nuptial agreement.
43. [43]
    On 24 July 2015, a marriage celebrant met with Graham and Rosy at Tyberry Street.  She spoke extensively with them about how they met, their plans for their future life together, and the ceremony to be held at their home.  They signed the Notice of Intended Marriage form.  The celebrant required “divorce papers for both of them.”  Graham could not do so until his divorce from Joan was made absolute.
44. [44]
    On 27 August 2015, Graham and Rosy signed a pre-nuptial agreement, in anticipation of marrying.  This was consistent with Graham’s conduct before marrying Joan in 2008. 
45. [45]
    On 26 September 2015, Graham and Joan’s divorce was made final.  Their property dispute continued in the Federal Circuit Court, including Joan’s challenge to their pre-nuptial agreement.
46. [46]
    On 14 October 2015, the marriage celebrant met with Graham and Rosy again.  They each signed a declaration that there was no legal impediment to the marriage.  The celebrant conducted a rehearsal with a few family members and a couple of the wedding party. 
47. [47]
    On 17 October 2015, Graham and Rosy were married in a ceremony at the Tyberry Street property.  Kevin, Rosy and the celebrant’s evidence is at [88] to [91] below.

Work and retirement

48. [48]
    On 21 November 2015, the financial planner, Ms Pryce, had advised Graham and Rosy about his options to retire at age 65, in July 2016.  Ms Pryce also advised them to review the estate planning, because of their recent marriage. More of Ms Pryce’s evidence is at [97] to [113] below.
49. [49]
    On 7 December 2015, Graham had met with the BCC Fleet Services Operations Coordinator, Mr Jones.  Mr Jones discussed with him a report that Graham had become lost and “had to contact other drivers and supervisors for assistance, including requesting they come and assist you back to the depot”, that it seemed Graham had “had to be reminded of job site locations”, that he had forgetfulness and needed to seek directions to find his main work location, and that he had moved his truck to within a loading space for a front end loader and exited the truck when around the loader.  Mr Jones had told Graham that “he would monitor the situation, but if the issues continued, he would be unable to continue to allocate you work until you presented to a doctor and obtained clearance.”  Mr Jones continued to allocate work to Graham, at that time.

50. [50]
    On 15 December 2015, Mr Jones met with Graham again.  He told Graham that a “report of potentially unsafe behaviour” had been received from the quarry.  Mr Jones said he could not allocate Graham any more shifts “until you have provided a medical clearance.”  Rosy attended this meeting but had little detailed recollection of it.  Her evidence was that Mr Jones said Graham’s work performance was decreasing and he needed a break.  The BCC was closing its quarry for a two-week Christmas break and Mr Jones requested Graham to take some time off work and then come back with what his “next direction” would be. 

51. [51]
    According to Rosy, over the Christmas break, Graham decided he would not return to work after his long service leave, as it was close to his 65^th birthday.  He would finish work, and they would spend more time together.  On 8 January 2016, Graham applied for long service leave. 
52. [52]
    On 31 January 2016, the BCC Manager, Fleet Services, Ms Sullivan wrote to Graham and approved his long service leave until 1 July 2016.  However, she directed Graham “to provide up-to-date medical advice before your leave expires or you are allocated any further shifts in your role as a Casual Owner Driver.”  Ms Sullivan explained:

“The purpose of this should be to establish if you have any medical conditions and if so, whether these present any impacts for the workplace and / or for you performing your Casual role with Council.

You are required to provide this information to Council by 1 June 2016 …

The above process will assist in determining if there are any difficulties you may have in undertaking your Casual rile with Council.  If insufficient information is provided, you may be required to undergo an appointment with a Council Medical Officer prior to your return to work.”

53. [53]
    According to Ms Sullivan, after taking leave until 1 July 2016, Graham would still have a “leave balance of 116.62750 hours.”  According to Rosy, she and Graham met with Ms Sullivan in May or June 2016, and he told the BCC officers he would not be returning to work.  Graham gave them a letter of resignation.  They discussed the arrangements and agreed that Graham would retire with effect from 19 July 2016.  
54. [54]
    On 21 January 2016, Graham signed his financial statement in the Federal Circuit Court proceedings.^[22]  He swore in an affidavit that his assets had increased in value by $200,868 since the prenuptial agreement with Joan, to a total of $2,896,868.  He included his superannuation funds in these assets, which may have been the appropriate approach in the matrimonial dispute.  He no longer owned the Boorana Street property.  He disclosed that he and Rosy each had a half interest in a joint bank account ($43,148.00), a Toyota Land Cruiser ($47,000) and a caravan ($56,000).
55. [55]
    On 27 January 2016, Graham swore another affidavit in the property dispute with Joan.  It included the following:

“I have recently been diagnosed with a medical condition.  Following recently noticing an increased loss of memory I attended Queensland X-ray on 14^th January 2016 for a PET Imaging Scan.

Following same a report issued regarding my condition which in summary indicates a change within my brain and suggesting a condition of frontotemporal dementia.

…

I have found it increasingly more difficult to generally remember things as well as thinking clearly.  Now having this diagnosis I understand more the progressive changes that have been occurring and the medical reasons behind it.  I am coping as best I can in the circumstances.  I understand it is a progressive condition.  I intend monitoring this as closely as possible.

I have been continuing as a contract truck driver as I have done for many years.  I am considering now having to retire, particularly for safety reasons.”

56. [56]
    On 3 February 2016, the date set for hearing the matrimonial dispute in the Federal Circuit Court, Graham and Joan reached a settlement.  Two days later, on 5 February 2016, Graham and Rosy met with Mr Speakman and gave him instructions for a new Will and a new EPA for each of them.

The making of the Will

57. [57]
    The impetus for making a new Will included Graham’s marriage to Rosy on 17 October 2015, and the advice from Ms Pryce, on 21 November 2015, that such a step should be considered.  The marriage revoked the Will Graham had made in February 2015, when he was still married to Joan.^[23]    
58. [58]
    The specific timing of the Will in February 2016 is more likely related to Graham’s property settlement with Joan on 3 February 2016, than to any other specific event.  Reflecting appropriate caution, Graham did not make a new Will until he had certainty about the distribution of assets between him and Joan.  In the preparation for the Federal Circuit Court hearing and in the property settlement with Joan, Graham had a deal of contact with his solicitor, Mr Speakman.  This may also account for Graham giving the topic of a new Will priority at this time.  It certainly explains him going to Mr Speakman with instructions for a new will. 

Instructions for the Will

59. [59]
    In his file note of 5 February 2016, Mr Speakman noted that “Graham is seeing his specialist Dr Tho next Friday” (i.e., 12 February 2016),^[24] and:

“At that stage they’ll obtain a letter regarding his competency and before he signs his Will I’ll take him through the public guardian-type matters.”

60. [60]
    Mr Speakman recorded Graham’s instructions that the executor was “to be Rosy, and auxiliary Tracey.”^[25]  His file note continued:

“The bequests he will make provision for his superannuation to be paid into the estate.  He’s seeing his super trustee representative shortly.^[26]  Bequests as follows –

1. $200,000.00 to each of his 3 children or failing them to their surviving children in equal shares upon 25 years (refer previous Will).

2. Balance of estate to go to Rosy.

3. If Rosy fails to survive then the balance of the estate auxiliary to go again to the 3 children in equal shares.”^[27]

61. [61]
    Mr Speakman separately recorded Rosy’s instructions for her new Will and an EPA.
62. [62]
    On 11 February 2016, Mr Speakman sent the draft new Will and EPA to Graham.  He sent Rosy the draft of her new Will and EPA. 
63. [63]
    On 16 February 2016, Graham and Rosy returned to see Mr Speakman.  Mr Speakman’s file note recorded that he questioned Graham on his full name, date of birth, address, day of the week, date, month, his wife’s full name and her date of birth.  Graham answered correctly, save that he told Mr Speakman only the month of Rosy’s birth, not the date, and he did not recall her second name.  Mr Speakman then took Graham through the provisions in the EPA, questioning Graham as to his understanding of the instrument, why he wished to make it, who he was appointing as his attorney and why, when it was to commence, how long it would operate, and what would happen if Graham lost capacity generally.  Graham answered each question with a correct understanding of the EPA. 
64. [64]
    Mr Speakman’s note then records:

“Will – went through the same essential introduction questions with Graham as appliable above and he responded appropriately.  I was satisfied that he is fully aware of what he is doing and then went through the Will individually dealing with the appointment of Rosy as primary executor and Tracey as auxiliary.  Then went through the further clauses providing the sum of $200,000.00 to each of the children and in that event to their children.  Graham advised Tracey has 3 children and Byron, Tyler and Cody.  Danielle currently has no children but that may change.  He also advised Stuart has one son Markus who is 2 but there may be further children.  He understands the provisions to go to the parents primarily and if they don’t survive then to go to the children equally and there are no surviving children then it forms part of the balance of the estate (Clause 7).

Also went through the provision of Clause 7 that the balance of the estate goes to Rosy but in the event she doesn’t survive then the balance reverts to the surviving 3 children, Tracey, Danielle and Stuart however if that occurs then it’s to go to those children only and not to the grandchildren at that point if that were to occur.

Also referred to Clause 8 omitting reference to Joan Campbell (Kremastos).

Overall I was satisfied Graham fully understood the nature of his Will and his wishes were appropriately outlined therein.”

65. [65]
    Graham was not an aged testator.  He was not seriously ill.  Indeed, he was not obviously unwell at all.  Graham was not proposing to distribute his estate in a manner that appeared controversial.  There was an absence of factors that might have called for a solicitor to propose a will be witnessed by “a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings.”^[28]  The Will as proposed would be different to the one he had made a year before, but his circumstances had changed.  His divorce and property settlement with Joan had been completed, and he had married Rosy. 
66. [66]
    Mr Speakman was aware of Graham’s short-term memory issues and of the difficulties this was causing him with his employment.  As he said in cross-examination:

“that’s why I went through the questions with him.  I took steps that I would probably not take … with someone regarding whom I was – wouldn’t be aware that there may have been an issue.  Now, I was aware of Dr Gribbin’s report obviously.  I didn’t have a report in front of me from, I think, Dr Tho, who was the referring doctor.  Graham was there.  Can I just say this?  If I would have had any doubts whatsoever that Graham didn’t understand the effects and the meaning of what he was doing, I wouldn’t have proceeded. It’s as simple as that. I’m a very cautious person.  I have been all of my practice.

… It would be nice to have a document to say a person has capacity or they don’t have capacity, but quite often you don’t get that.  So you’re dealing with the situation then and there.  See, there had been no diagnoses as far as I was concerned, and I don’t believe there was one subsequent to that.  That’s not within my knowledge.

… So it might have been a letter of competency or incompetency, but, as I said, I was dealing with Graham at the time, and to my knowledge he responded appropriately in terms of understanding what he was doing and the effects of what he was doing with his will.”

67. [67]
    Mr Speakman confirmed that he wanted to make sure Graham “understood ultimately what he was doing.”  That is why he asked the questions he was used to asking clients from time to time, to confirm that Graham was “ mindful of where he was, what he was doing”.  Mr Speakman explained:

“I wanted to make sure as best as I could that, with him in front of me, he understood what he was doing.  That’s, indeed, why I asked the preliminary questions … We dealt with the easier document first; call it the enduring power of attorney. … Then I went through the will.  Not only did I go through the – the generalised questions so that I could form a view that he understood the nature and effect of what he was doing, I then went through each clause of the will individually, as opposed to simply saying, ‘ Look, yeah, I’ve emailed you the copy. We’re here now. Just sign here.’ So I went through, again, each clause of the will. And I was satisfied after that.”

68. [68]
    Mr Speakman noted he spent 48 minutes with Graham and Rosy on this occasion.
69. [69]
    Mr Speakman gave his evidence with care.  He considered the questions posed.  He readily admitted when his memory of events six or seven years ago failed.  Mr Speakman was not qualified to give any profession medical opinion on Graham’s cognitive state, but he observed Graham to be aware of and understand he was proposing to make a Will and to understand the effect of each clause in the proposed will.  He made those observations as a person admitted as a solicitor in 1987.  By February 2016, he had practised as a principal in his own firm for 24 years.  He retired on 30 June 2019.  He was conscientious and independent in giving his evidence.

Execution of the Will

70. [70]
    On 16 February 2016, at the end of this 48 minute attendance at Mr Speakman’s office, Graham executed the new Will in the presence of Ms Festa, a dental nurse from an adjacent premises, and Mr Speakman, who signed as witnesses.  At this time, Graham was aged 65.  His children were 44, 34, and 27.  Rosy was 60.
71. [71]
    This is the Will the subject of the proceeding.  Graham made no later Will. 

Events after the 2016 Will

72. [72]
    On 7 March 2016, Graham signed a revocation of his February 2015 EPA.  By this earlier EPA he had appointed Kevin and Jeannie as his attorneys.  On 9 March 2016, Mr Speakman wrote to Kevin advising him that Graham had decided to appoint Rosy as his attorney under a fresh EPA.  It appears he sent a similar letter to Jeannie.  The marriage of Graham and Rosy, on 17 October 2015, had revoked the earlier power of attorney, in any event.  The revocation seems to have been unnecessary. 
73. [73]
    On 4 April 2016, Graham signed a contract to sell the 2947 Old Cleveland Road property for $525,000.  The settlement date under the contract was 2 May 2016.
74. [74]
    On 30 May 2016, Mr Speakman saw Graham and Rosy again.  At the trial, he gave oral evidence of this encounter:

“Graham had readjusted his enduring power of attorney.  I hadn’t seen them for many months, as far as I can recall, but he wanted to change his enduring power of attorney, which we did.  He and Rosie attended according to that file note. …  As the file note discloses, I obviously went through the same details that I did when I was doing – as per the file note for the will, on the 16th of February.  As I say, he was clear in his responses to those matters.  I then went back over the document, being the enduring power of attorney, and ultimately, I was quite satisfied that he was aware of what he was doing.

… He understood it … and he knew what he was doing [and] … asking me to do.”

75. [75]
    It seems from the OPG report that Danielle (and perhaps one or both of Graham’s other children) raised issues about Graham’s capacity and care with the OPG in about 2019.  They alleged 2497 Old Cleveland Road and some of Graham’s personal chattels had been sold at prices below market value; they alleged Rosy was restricting Graham’s contact with family and friends; they alleged Rosy was not ensuring Graham received the appropriate level of services to meet his care needs; they alleged Rosy was verbally abusive towards Graham; and they alleged Graham did not have capacity to execute an EPA on 30 May 2016.
76. [76]
    The OPG found that all but the last of these allegations were “not able to be substantiated to the standard at the civil burden of proof.”  None of them was raised at the trial.  The OPG found there was “conflicting medical evidence” about Graham’s decision-making capacity on 30 May 2016 when he executed the EPA.  For this reason, the OPG decided to seek a declaration of capacity from the Queensland Civil and Administrative Tribunal (QCAT) under s 146 of the Guardianship and Administration Act 2000 (Qld).  
77. [77]
    The OPG’s investigation of the allegations had commenced on 3 June 2019.  It was completed on 17 December 2019.  When Graham passed away, shortly after the OPG report, the EPA was revoked, the Public Guardian’s authority ceased, and the QCAT proceeding did not go to a hearing. 

Kevin Campbell

78. [78]
    Graham’s brother Kevin is the fourth of six Campbell siblings.  His sister Jeannie is the fifth.  Graham was the youngest.  Kevin was born eight years before Graham.  They grew up together. Kevin, Jeannie and Graham always had a close relationship. 
79. [79]
    Kevin described Graham as a dedicated socialiser and a larrikin.  Before Kevin and his wife Jean moved from Wynnum to Caloundra, Graham and Kevin would often be “the first ones to arrive, and the last ones to leave” local clubs and RSLs, attending at least two or three times a week.  Kevin and his wife Jean regularly attended “Guitars & Cadillacs” shows and Kevin occasionally performed with the band. 
80. [80]
    Kevin met Rosy when she was dating Bob.  He and Jean attended Bob and Rosy’s wedding. 

81. [81]
    Sometime after 2000, Kevin and Jean moved to Caloundra (about 100 km north of Graham’s home and then to Bribie Island (about 80 km north).  They still visited Graham at the shack, and later in Tyberry Street, staying at a caravan on the property, and they holidayed together until about 2014.  The distance that developed between them might be indicated by Kevin’s recollection that Graham never told him that he and Joan were separating. 
82. [82]
    Kevin gave evidence that “from late 2012 onwards” Graham’s “symptoms became noticeable”.  He did not describe these symptoms.  In this evidence, Kevin was plainly looking backwards to identify a time when Graham’s memory began to decline.   
83. [83]
    Kevin did identify four more specific recollections. 

(1) Graham’s question about being married to Joan

84. [84]
    The first specific recollection is a conversation with Graham.  After his separation from Joan and before his marriage to Rosy, Graham asked Kevin over the telephone whether he had been married to Joan.  Kevin recalled that Graham seemed “genuinely uncertain”. 
85. [85]
    I accept Kevin’s recollection as genuine.  The conversation must have been between August 2014 and October 2015.  It might inform an assessment of Graham’s general capacity in the period before he made the Will. That might have some relevance to his capacity in February 2016, when he made the Will. 
86. [86]
    Graham and Joan had been in a relationship for about seven years before they became engaged.  Their engagement had lasted about eight years.  Their wedding was a “surprise” during a party at Graham’s home.  They separated after four years, according to Graham. They lived in separate houses for much of this period.  They each had children from former relationships, and they had no children together.  They were separated for three years before their divorce was finalised, according to Graham.  In the circumstances, Graham’s uncertainty about whether they married seems less significant than might ordinarily be the case.  
87. [87]
    In February 2015, and again in February 2016, when Graham gave Mr Speakman instructions and signed each Will, he was clear that he and Joan had been married – and that he would make no provision for Joan in either Will. 

(2) Graham’s difficulty reciting vows at the wedding to Rosy

88. [88]
    Secondly, Kevin gave evidence that, at the wedding of Graham and Rosy, Graham had trouble reciting his personal vows, was distracted by the background music, and was able to speak the vows only by repeating them after the celebrant. 
89. [89]
    Rosy gave evidence that she and Graham were both nervous when reciting the vows.  These were their personal vows, not those required to formalise the marriage at law.  According to Rosy, the personal vows were a page long.  Graham did not have his reading glasses.  The celebrant helped them both with the words. 
90. [90]
    At the trial, Danielle put the marriage celebrant’s recollection of the events into evidence as part of the AG report.  The celebrant stated:

“On their wedding day, 17 October 2015, Graham was nervous and this is quite a normal state of mind, in my opinion.  He spoke to me before the ceremony and nervously waited for [Rosy’s] arrival by my side.  During the ceremony he seemed perfectly ok but nervous and repeated the legal vows without a problem.  He then needed to read his own vows but had difficulty doing so, I then asked him would he like for me to say them first quietly and he could repeat, he agreed.  I believe he didn’t have his glasses so maybe that was the problem along with his nervousness, he did repeat after me almost word for word although I didn’t find this strange either. I had no reason to believe that Graham did not have the capacity to consent.”^[29]

91. [91]
    Once the wedding ceremony was complete, Kevin congratulated Graham.  He posed for photographs with the newlywed couple. In the context of the wedding and Kevin’s proximate conduct, Graham’s difficulty reciting his personal vows is less significant than it might at first appear.

(3) Graham mentions problems at work

92. [92]
    Thirdly, Kevin recalled Graham telling him, in 2015, he was having problems at work because, on several occasions, Graham had been unable to find a job site, including previously familiar locations.  This is consistent with other evidence, including the BCC letter of January 2016 and Rosy’s recollection of meetings with the BCC officers about that time.  It is likely the conversation with Kevin happened in December 2015 or January 2016.  It adds little to the other evidence, save that it indicates something of Graham’s understanding of the difficulty he was encountering at work at that time. 

(4) Kevin’s concern about Graham’s EPAs

93. [93]
    In March 2016, Kevin received the letter from the solicitor Mr Speakman enclosing the revocation of Graham’s 2015 EPA.  At the time, Kevin did not realise that Graham had revoked the EPA in October 2015 by marrying Rosy.  He said he was “greatly concerned by the complete lack of communication” from Graham about this letter.  He had the view that “Graham would normally have just given me a phone call and we would discuss it.”  According to Kevin, his sister Jeannie received a similar letter. 
94. [94]
    To put this in some perspective, Kevin said he had been “stunned” when he was asked to sign the 2015 EPA as an attorney for Graham, which he did about ten months’ earlier.^[30]  He could not recall “if Graham ever contacted me directly to ask me” to be his attorney.  He also seemed to be concerned that the EPA did not provide “any particular instructions” and that he did not receive any “legal advice” about it.
95. [95]
    On 4 May 2016, Rosy sent Kevin a letter.  Writing on behalf of Graham, Rosy asked Kevin if he would agree to be a secondary attorney for Graham “should it be necessary in the future that if I at anytime be incapable of making a decision for Graham’s best interests”.  Kevin said he found it unusual that such a request would be made in writing. He also deposed that he was “inclined to say I would prefer not to be Graham’s attorney as I felt I didn’t want to become involved in his financial affairs” and “felt pressured to make a decision I wouldn’t ordinarily make.”  This seems an odd position to take in May 2016, when Kevin had agreed to be Graham’s attorney, including for financial matters, in May 2015.  In any event, Kevin accepted his appointment by signing the new EPA on 6 June 2016 at the Tyberry Street home in the presence of Graham and Rosy. 

Graham’s situation in 2018 and 2019

96. [96]
    According to Kevin, visits by him and Jean “became more restricted” in 2018 and 2019.  Rosy arranged visiting times, usually at 11:00 am.  A carer would be present, feeding Graham.  They would talk and joke with him, “but Graham was in another world.” This is consistent with the evidence of Rosy and the treating medical practitioners about the deterioration of Graham’s condition. 

Financial adviser, Ms Pryce

97. [97]
    Ms Pryce was a financial adviser to Graham for about six years.  Theirs was a professional relationship.  She described him as a larrikin who “always had a lovely inappropriate joke to share”. 
98. [98]
    Ms Pryce was a financial adviser to Graham’s brother Kevin.  She had been an authorised representative of an advisory firm since 2000.  She has a Master of Financial Planning and a Diploma of Financial Planning.  She is a Certified Financial Planner.  From March 2009, she was a director and financial planner with Invest Blue Pty Ltd, an authorised representative of AMP Financial Planning Pty Limited.
99. [99]
    In around 2011, Kevin had recommended Ms Pryce to Graham and Joan. 
100. [100]
     On 10 June 2013, Graham met Ms Pryce for the first time.  Joan was also present.  Ms Pryce said, “from an intuition point of view, I got the impression that things were not travelling well with Joan.”  They met again on 20 July 2013.  Ms Pryce made some recommendations.  Amongst them, that Graham commence on an allocated pension and that he nominate Joan as a beneficiary on his allocated pension. 
101. [101]
     On 25 August 2013, Graham met with Ms Pryce at her office to complete the paperwork to implement her recommendations.  This time, Graham was alone.  He was adamant that Joan should not be nominated as a beneficiary, saying “I want to make sure I don’t have anything going to Joan.” 
102. [102]
     They met again on 15 June 2014, 18 October 2014 and 14 November 2014.  Ms Pryce described her role as “educating him on how it was possible for him to retire”:

“I suggested perhaps Graham cut down to working only three days a week, because I understood that he just couldn’t see what he would be doing all day every day if he weren’t at work.

For the first 12 – 18 months of working with Graham, I had the impression that he wasn’t even entertaining the thought of giving up work.”  

103. [103]
     On 15 February 2015, Graham introduced Rosy to Ms Pryce.  Graham told Ms Pryce that he and Rosy were looking to buy a caravan and travel together.
104. [104]
     Ms Pryce was invited to their wedding.  About a month later, on 21 November 2015, Ms Pryce met with Graham and Rosy for an annual review of their financial position.  Ms Pryce suggested Graham and Rosy should review their estate planning, because their marriage would have revoked their existing Wills.^[31] 
105. [105]
     On 5 February 2016, Graham had told Mr Speakman that he would “make provision for his superannuation to be paid into the estate.”  Ms Pryce may have given this advice in November 2015.  Or, Graham may have formulated this strategy himself and discussed it with Mr Pryce after the Will was made. 
106. [106]
     On 18 August 2016, when they next met, Graham and Rosy gave Ms Pryce copies of their new Wills (including the Will) and of their new EPAs.  Ms Pryce said she was “surprised at the amount Graham had actually gifted to his children in the Will, because to me he was always tight with his money and Graham had never really mentioned the children in any of our conversations.”
107. [107]
     Ms Pryce recalled that the three bequests to Graham’s children led her to advise Graham that changes might be made to the investment of assets under his control, so that those amounts could be readily paid from his estate, without the need to dispose of real property.  On 16 September 2016, Ms Pryce met with Graham and Rosy to take instructions for changes in investments “so that the provisions made in the Will could be executed if required.” According to Ms Pryce:

“I discussed my recommendations at length with Graham and he appeared to understand and approved of the implementation of same.  I received all instructions from Graham only.  When I questioned Graham about the amounts left to his children in the Will, he said words to the effect:

‘It’s more than I would like, but I have to leave them enough so that they don’t give Rosy a hard time.’

At no stage during the meeting did I see signs of Graham being pressured, forgetful or anxious.  He appeared to be only concerned with whether Rosy would be okay and that she would still have enough to live on.”

108. [108]
     Following this meeting, on 11 November 2016, Graham deposited $600,000 into a new pension fund, the Wealth Personal Superannuation and Pension Fund (My North Pension). 
109. [109]
     Ms Pryce recalled a meeting on 4 March 2017.  Graham signed a My North Pension binding nomination of beneficiaries form, and Ms Pryce and Ms Amanda Hardie, also of Invest Blue, witnessed his signature.  The form is dated 7 March 2016, within a few days of 4 March 2016.  By the form, Graham purported to nominate his legal personal representative as the beneficiary of 100% of his benefit from the My North Pension in the event of his death.  This is consistent with an intention that the funds be made available to his executor to pay the three bequests to his children.   
110. [110]
     In her diary, Ms Pryce notes meetings with Graham at her office on 28 April 2017, 31 May 2017, 21 July 2017 and 29 January 2018. 
111. [111]
     On 28 May 2018, Ms Pryce met with Graham and Rosy at their home.  She noticed “a real decline in Graham’s demeanour.”  In her observation:

“Graham was still able to understand his current financial position, but I noticed him getting distracted, telling jokes, and repeating himself.” 

112. [112]
     The relocation of the meeting, from Ms Pryce’s office to Graham and Rosy’s home, may also indicate a change in Graham’s situation. 
113. [113]
     On 18 March 2019, about ten months later, Ms Pryce met Graham and Rosy again at their home.  Rosy told her that she was now an “active” attorney for Graham under the EPA.  Her next meeting on 2 July 2019 would be their last before Graham’s death. 

Rosy’s evidence

114. [114]
     I have left most of Rosy’s evidence until this point. 
115. [115]
     As the person seeking to uphold the 2016 Will, under which she is executor and residual beneficiary, it might be said that Rosy has a personal interest that might warrant additional scrutiny of her evidence.  For practical reasons, noted below, there is little cause for such a concern. 
116. [116]
     Rosy had a closer and more comprehensive survey of Graham’s behaviour, over the period during which he made the Will, than any of the other witnesses.  However, like the other witnesses of fact, her evidence was very general and some of her observations too conclusionary to be of much assistance.  For example, her statement that “I believe that Graham had no issues with his mental capacity when he signed the Will” is of no assistance.
117. [117]
     In February 2016, Rosy and Graham met with Mr Speakman about their new Wills and EPAs.  She recalled Graham being reluctant to leave a $200,000 specific bequest to each of his three children.  She said Mr Speakman “debated” this part of the draft Will with him.  She said, on the drive home from the solicitor’s meeting, Graham expressed regret at having given instructions for those bequests. 
118. [118]
     This evidence is consistent with other general evidence given about Graham’s personal disposition and attitude to money.  It accords with Ms Pryce’s observation about Graham and her “surprise” at the amount of the bequests.  However, nothing of this nature was recorded by Mr Speakman in his file note of the attendance and he had no actual recollection of it when he gave evidence.  I make no relevant finding based on this evidence.  
119. [119]
     Rosy also gave some evidence of conversations with Dr Smith and Dr Tho, but I prefer to rely on the medical practitioners’ own contemporaneous notes and letters as a more accurate record of their observations at the time. 
120. [120]
     I find some assistance in Rosy’s evidence that Graham’s sleep apnoea “appeared to be becoming more severe in or around late 2015”. 
121. [121]
     Rosy gave evidence about daily life with Graham in the period 2015 to 2017.  This involved walking their dogs, visiting friends, taking caravan holidays, and undertaking many home and garden improvements on the Tyberry Street property.    
122. [122]
     According to Rosy, by 2017:

“Graham would get a little forgetful, repetitive, and anxious at that stage, but it wasn’t until early/mid-2018 that I noticed a decline in Graham’s mental state.”  

123. [123]
     According to Rosy, Graham “had started to slow down in early 2018 and often liked to take naps in the afternoon.”  Her evidence was that the first time she acted as Graham’s attorney for financial matters was in about April 2018, when she sold his Holden Commodore.  By mid-2018, Graham had ceased walking across the road by himself to collect the weekend papers.  On 23 July 2018, Rosy had engaged Anglicare to assist with caring for Graham. 
124. [124]
     By Christmas 2018, a man who usually did all the driving on their holidays “no longer felt comfortable driving” to Bundaberg.
125. [125]
     On 3 January 2019, Rosy engaged Home Instead Senior Care, to replace Anglicare.  In August 2019, Rosy noticed Graham deteriorate quite quickly.  He lost his ability to walk, became incontinent, and needed high care. 
126. [126]
     From about July 2017 until about July 2018, Rosy’s general descriptions of Graham’s activities are quite inconsistent with the contemporaneous reports of his treating medical practitioners.  For this reason, I have disregarded Rosy’s general description of Graham’s behaviour over this period. 

Medical records

127. [127]
     None of the treating doctors was called to give evidence.  The parties were content to rely on their written notes, letters and reports, which were tendered. These were also considered by Professor Byrne. 

128. [128]
     The medical records for Graham between 13 June 2012 and 11 November 2012 are unremarkable, with tests and prescriptions for issues common in persons of his age. 
129. [129]
     On 6 February 2013, Graham consulted Dr Brett Towner, a general practitioner at the Capalaba Medical Centre.  He told Dr Towner people had been complaining of his short-term memory problems, that he sometimes forgets where his keys are.  Dr Towner noted that Graham had no relevant family history, consumed about six standard alcoholic drinks on a Tuesday with a mate, but little at other times, was not depressed and had no significant stressors.  Graham seems to have omitted to tell his doctor that his father was diagnosed with Parkinson’s disease or, if Kevin’s evidence is correct, that he drank with family and friends more often that once a week. 
130. [130]
     Dr Towner conducted a standardised Mini-Mental State Examination (MMSE).  This is a 30-point assessment commonly used as “a quick way to evaluate cognitive function” and “to screen for dementia or monitor its progression.”   
131. [131]
     On 6 February 2013, Dr Towner scored Graham 27/30 on the MMSE, omitting a verb from a sentence, incorrectly drawing intersecting pentagons, and missing one object in recall.  A score of 26 or higher is considered normal.  With this good score, Dr Towner noted Graham as having an assumed mild short-term memory problem. He was to “Observe for now” and repeat the MMSE in a year’s time. 
132. [132]
     Dr Towner referred Graham to Dr Gimpel, a radiologist, who reported on 26 July 2013 about a CT brain scan as being “Normal age appropriate.”   
133. [133]
     On 10 February 2014, Graham saw Dr Towner again.  He reported ongoing memory problems.  He told Dr Towner his brain “goes 100 miles/hr”, the problem was more short-term than long-term memory, he had poor sleep, tends to depression, some anxiety, had conflict with his wife (Joan), snores, and wakes unrefreshed and goes “flat out for the day”.  Dr Towner conducted another MMSE, scoring Graham 28/30, losing two points on recall.  Dr Towner considered referring Graham for a sleep study. 
134. [134]
     On 17 August 2015, Graham became a patient of another general practitioner, Dr Keith Smith, at the Regents Park Surgery.  Dr Smith was Rosy’s general practitioner.  He conducted an MMSE, on which Graham scored 18/30, and a Montreal Cognitive Assessment (MOCA) test on which he scored 14/30.   These scores indicate moderate cognitive impairment.  Graham’s MMSE score was well below the level in each of the preceding years. 
135. [135]
     Dr Smith referred Graham to another radiologist, Dr Albert Chung, for another CT brain scan.  On 29 August 2015, Dr Chung reported “no significant intracranial pathology evident.” 
136. [136]
     On 3 September 2015, Dr Smith saw Graham again, perhaps to take him through the radiology results. It appears Dr Smith conducted another MOCA test, on which Graham scored 12/30.  He referred Graham to a neurologist, Dr Jia Tho, telling the specialist that Graham had presented “with apparent tapered cognitive decline over the past 5-6 years.”  The referral continued:

“His soon-to-be wife, Rose, a patient of mine, had asked me to see Graham because of her concerns and also Graham’s siblings concerns.  Memory is the worst problem by far.  His MOCA scores have been 14 & 12 and MMSE once was 18/30. 

Rose has actually known Graham for a long time, in fact he was her late husband’s best mate.  Graham has a long term anxious personality. 

PS Rose was supposed to get Graham to do the anxiety questionnaire from Beyond Blue.  She forgot!  But will get Graham to do it & bring it with them when they see you.” 

137. [137]
     On 29 October 2015, Dr Tho reported to Dr Smith that Graham did not see his “memory disturbance” as “a major problem”:

“but as you mentioned [his] partner Rose has raised the concern and I note his previous GP has organised a CT brain [scan] in 2013 because of memory problems.  However, he is independent with his [activities of daily living] and getting his job done working [for the BCC].  He denied any symptoms of depression but I gather he has anxiety personality.  There is no history of head trauma and he is otherwise fit and healthy.  There is no history of early dementia but his dad was diagnosed with [Parkinson’s Disease] in his 50s.  He does not smoke and drinks alcohol occasionally.  Systemic review revealed that he has sleep problems. 

On examination he looked alert and well.  He walked normally to the consultation room.  He has immediate recall 1/3, and I note his MMSE once was 18/30 as well as low scores of MOCA.  However, further neurological examination was unremarkable.  

… His CT brain [scan] from 2013 and recent in 2015 did not reveal any changes or abnormality.  I agree with you that he most probably has mild cognitive impairment, and for the workup, I have organised MRI brain with SPECT scan.  I have also arranged sleep study and asked him to come back for review after these investigations.”

138. [138]
     On 8 January 2016, in his report on a brain MRI, radiologist Dr Nicholas Daunt concluded there was “No specific abnormality seen.”  Dr Daunt’s findings were:

“Signal from brain is fairly normal throughout with no overt ischaemic change seen.  One tiny hyperintensity on the right is within the range acceptable in this age group.  The ventricular size and configuration is normal.  There are normal flow voids at all appropriate sites.

There is mild widening of sulci, however the sagittal images show that this is generalised involving all lobes and has no specific pattern. …”

139. [139]
     On 14 January 2016, another radiologist, Dr Denis Gribbin, reported on a Cerebral PET and CT Head scan.^[32]  Dr Tho had referred Graham for this procedure based on a history of “Short term memory disturbance and anxiety” and to “assess for dementia or ischaemia”.  Dr Gribbin’s report included the following findings and summary:

“Findings: The ventricles, cisterns and suici are normal.  There are no abnormal attenuations, mass effects or abnormal enhancements with contrast.  There is no surface collection.  There are no areas of ischaemia or infarction.   

There is significantly reduced FDG^[33] activity within the temporal lobes.  This is asymmetrical, more pronounced on the right side.  There is also patchy reduced FDG activity within the right and left parietal cortex and mild reduced uptake in the frontal cortex.  There is normal metabolism in the occipital lobes and relatively normal activity in the left posterior parietal cortex.  Activity in the basal ganglia is normal.  No cerebellar abnormality is seen.

Summary: Significantly reduced metabolism in the temporal lobes, more pronounced on the right with hypometabolism extending into the parietal and frontal cortex.  This is a mixed pattern, but more suggestive of frontotemporal dementia.”

140. [140]
     On 15 January 2016, Dr Tho reported to Dr Smith:

“Graham came back for review after the scan but he did not turn up for his sleep study.

His memory has remained unchanged according to Rose, and he was [too] busy to attend the study.  I have reviewed his MRI brain which did not show any focal atrophy, but his cerebral PET revealed asymmetrical reduced metabolism in the right fronto-temporal-parietal region, raising the possibility of fronto-temporal dementia.

However, it is important to exclude sleep apnoea which could also give rise to similar pattern. This I have resent the referral and asked him to come back for review after the study.”

141. [141]
     On 3 February 2016, Dr Smith conducted another MMSE, scoring Graham 16/30.
142. [142]
     On 12 February 2016, Dr Tho reported to Dr Smith again:

“Graham came back for review after his sleep study …

As suspected, he has severe [obstructive sleep apnoea] … I have stressed the importance of getting this sleep disorder treated particularly [as] he worked as a truck driver.

In regards to his capacity to make a new Will, I have hesitation as he has not had any treatment for his sleep apnoea. If it is untreated, it could impair his memory and judgement, as I gather he has been dismissed from truck driving job.

I hope that once he is treated, with the CPAP under supervision of a sleep physician, perhaps that would be a better time to determine his capacity in making a Will.  He will be reviewed after six months.”

143. [143]
     Graham made his new Will on 16 February 2016. By that date, Dr Tho had diagnosed Graham as having severe OSA.  The recommended treatment (CPAP) had not yet been undertaken. 
144. [144]
     On 12 August 2016, Dr Tho again reported to Dr Smith:

“Graham came back for review after six months.

Unfortunately he could not tolerate CPAP machine, but Rosy has been using Sleep Advance.  Subjectively, he felt better with more alertness, less fatigue but his short term memory has not improved even though he does not snore on lateral position.

Thus I think it is important to obtain another sleep study for objective comparison, particularly [as] untreated sleep apnoea can impair his memory and judgement, with regards to capacity to make a will.

As Rosy has not reported any emotional disturbance for Graham, I do not think he has fronto-temporal dementia at this stage.  In the meantime, if there is no improvement from his sleep study, you may nee to refer him to a sleep physician as there are new treatments for OSA.”

145. [145]
     On 17 September 2016, Dr Katahanas, a specialist general practitioner who conducted a sleep clinic, recorded in his notes, “There’s been severe OSA and there’s also an early frontal dementia.” 
146. [146]
     On 26 September 2016, Dr Katahanas saw Graham again.  His notes recorded:

“He has an evolving Dementia but also Severe OSA  …  Due to his Cognitive decline he hasn’t tolerated CPAP or a Night Shift Trial and I think a MAS is very likely to work the next logical step”. 

147. [147]
     The notes about dementia made by Dr Katahanas were not supported by a diagnosis from a relevant specialist and were contrary to the opinion expressed by Graham’s treating neurologist Dr Tho.
148. [148]
     On 27 December 2016, Dr Smith referred Graham to Dr Tho again.
149. [149]
     On 27 January 2017, Graham saw Dr Tho, who reported:

“I gather he has tried mandibular advancement splint, with better oxygen saturations but his memory has deteriorated, with visual hallucinations alarming his partner.  Furthermore, he has developed emotional disturbance and has not responded well to anxiolytic or antidepressant.

I suspect he has developed fronto-temporal dementia rather than Lewy Body Dementia at this stage (of what she worried) as there is no evidence to suggest movement disorder. Thus, I have suggested a trial of Aricept 5mg od after warning them the common side effects.  His baseline MMSE was 18/30 and if there is no adverse effects or deterioration, we cold aim for 10mg od after a month.”

150. [150]
     On 8 February 2017, two radiologists, Dr Myles Webb and Dr Robert Clarke, reported on a PET scan of Graham’s brain and its comparison to the PERT scan conducted on 14 January 2016.  They found:

“There is mild periventricular white matter gliosis in keeping with chronic small vessel ischaemic change.  There is mild prominence of the ventricular system and cortical suici consistent with cerebral atrophy.  There were no focal areas of abnormal enhancement or attenuation.  The mastoid air cells and paranasal sinuses are normally aerated.

There is moderate to severe reduction of metabolic activity in the right temporal lobe and right parietal lobe with more mild to moderate reduction of activity in the left temporal lobe, left parietal lobe and frontal lobes.  Overall appearances are similar to previous.

Comment:  There has been no significant interval change in the findings.  There is more marked temporal lobe hypometabolism, asymmetric and most pronounced affecting the right temporal lobe.  There is also asymmetric parietal lobe hypometabolism, right greater than left and mild frontal lobe hypometabolism.  The presence of more marked parietotemporal hypometabolism [in] the PET/CT findings would be more in keeping with an Alzheimer’s type dementia of moderate severity and involving the frontal lobes.”

151. [151]
     On 24 February 2017, Dr Tho reported again to Dr Smith:

“Graham came back for review after a month as scheduled.

I am glad that he reported no adverse effects from Aricept, and there is less hallucination and emotional disturbance.  Thus, I have increased it to 10mg od by giving him a new script.

He underwent brain scans under sedation, and there is global atrophy, with perfusion scan more in keeping with Alzheimer’s type dementia.  I have suggested OT driving assessment as he is not safe, as observed from Rose.  I would be grateful if you could facilitate the referral as I would be surprised if he can pass the assessment.  He will be reviewed after 6 months.” 

152. [152]
     On 13 July 2017, Dr Tho reported to Dr Smith that “Graham came back for review less than 6 months after Rosie’s concern.”

“He is having increasing anxiety with aggressiveness, and so far, his benzodiazepam is not able to help when Rosie provided [them to] him.   However, he continues to be active and I have continued Aricept 10mg od.” 

153. [153]
     Dr Tho planned to review how Graham coped with a new medication, Lexapro 10mg od, after a month.  The review was on 25 August 2017.  Dr Tho reported to Dr Smith:

“At this stage, it is important for Rosie as a carer to understand living with demented patients and I have encouraged her to get more education (behavioural rather than pharmacological) from Alzheimer’s society.”  

154. [154]
     On 13 December 2017, Dr Smith provided Rosy with a general reference, describing Graham’s medical condition. Dr Smith described Graham’s medical conditions as “Sleep apnoea – severe” and “Alzheimer's dementia”.  It seems likely this reference was to assist Rosy to be able to act for Graham pursuant to the EPA Graham had executed in May 2016.  The reference read:

“Unfortunately, Mr Campbell has developed a significant dementia in the past few years.  He has been seen by Dr J Tho, a Neurologist, who has performed all the relevant investigations.  Dr Tho has commenced Mr Campbell on two medications but these are designed only to delay the inevitable decline Mr Campbell will endure and to alleviate some of the anxiety he experiences.

Dr Tho also has disqualified Mr Campbell from driving.  In my experience and opinion, Mr Campbell has no insight as to his cognitive deficits.  I do not believe he can make an informed decision as to who can handle his important medical and life decisions.  Therefore I advise that Mrs Roswita Campbell be entrusted with his Power of Attorney.”

155. [155]
     The instructions from Mr Wheeldon to Professor Byrne and Professor Byrne’s report for the court refer to an MMSE carried out by MyAged Care as part of a home package assessment on 19 January 2018.^[34]  The score is recorded as 8/30.  
156. [156]
     On 23 February 2018, Dr Tho saw Graham and reported to Dr Smith:

“He is doing much better nowadays without hallucination, and using mouthguard nocturnally which has helped his sleep apnoea.

… In the meantime, as Graham is doing well without any definite deterioration, I have provided more scripts for Aricept 5mg od and Lexapro 10mg od.  He will be reviewed after 6 months.”

157. [157]
     On 12 July 2018, Dr Tho saw Graham again, earlier than he had planned for review.  He reported to Dr Smith:

“Rosie told me that he is having more mood disturbance, with increasing anxiety, and he is sleeping poorly with restlessness with apnoea.  Not surprisingly, he is more fatigued, forgetful and I suspect his sleep apnoea is not well managed.

… I would be grateful if you could refer him back to his treating sleep physician while I have organised MRI brain with sedation to check whether there is further atrophy.  He will be reviewed after 2 months.” 

158. [158]
     On 8 August 2018, Graham saw Dr Katahanas, who reported to Dr Smith:

“I consulted Graham Campbell today in my Snoring & Sleep Apnoea clinic in Capalaba.  He has severe OSA with only minimal desaturations seem originally on a Level 1 PSG in 2016 when I first saw him.

…

2 years ago when I first saw him, his cognitive state precluded any chance of coping with any of the treatments that may have helped.  He failed a trial of PAP therapy, Positional Therapy, and he cannot keep a Mandibular splint in his mouth according to his wife who is understandably exasperated.

…

Despite all of this, I can’t see a point in pursuing further Sleep Studies given that what ever degree of sleep apnoea or desaturation exists, it is essentially unmanageable in this case.”

159. [159]
     On 9 August 2018, Graham had another MRI of his brain.  The Queensland Xray report of that date compared the images with those from the MRI of 3 February 2017, finding no significant chronic ischaemic change no indication of acute ischaemia and no presence of brain haemorrhage.  Nor was there a change in the degree of atrophy or middle cerebral artery ischaemia.  The radiologist conclusion was:

“Severe atrophy with a temporoparietal predominance and involving the hippocampi is stable when comparing with the previous examination.  No new pathology detected” 

160. [160]
     On 13 September 2018, Dr Tho reported to Dr Smith, following the MRI brain scan, that:

“Rosie told me that there is no further intervention from his treating sleep physician for his OSA.  Furthermore, he is getting more paranoid and anxious.  His memory has deteriorated slightly.”

161. [161]
     On 11 October 2018, Dr Tho reported on a further consultation with Graham:

“Rosie found there is less hallucination while he is on Duloxetine 30mg bd, but since increasing it to 60mg bd, he is getting more confused.  However, he is able to recall my name, although remaining quiet throughout the consultation.

It could be progression of the underlying dementia, or adverse effect from the higher dosage.”

162. [162]
     On 12 November 2018, clinical nurse Lena Rautio assessed Graham using the MMSE, scoring him at 8/30.  This was part of a MyAged Care assessment. Nurse Rautio recorded that “Graham has no initiation and requires constant prompting with most day to day activities” and had “Poor comprehension – unable to understand instructions.”
163. [163]
     On 14 December 2018, Rosy’s solicitors wrote to Dr Smith.  They asked for Graham’s medical history, specifically “any records or medical history that may be pertinent to” Graham’s testamentary capacity in February 2016.  They also asked Dr Smith to express any personal opinion he had about that subject. 
164. [164]
     On 28 January 2019, Dr Smith advised, “I believe Mr Campbell did have testamentary capacity in early 2016, and for an undetermined time after this.”  Dr Smith enclosed correspondence from Dr Tho and suggested the solicitors “contact Dr Tho if you need further advice.”
165. [165]
     On 15 February 2019, Dr Tho reported to Dr Smith:

“Graham came back for review after 4 months as scheduled.

As expected, he continues to deteriorate according to Rosie that he is having frequency and accidental wetting himself.  Furthermore, he is sleeping poorly with restlessness, but I am glad no further hallucination which is disabling.  He appeared jovial today.

He has more disorientation, and because of untreated OSA, he is tired during daytime.  I have suggested a trial of Clonazepam 0.25mg [at night] with weekly titration up to 0.5mg-1mg [at night] for better sleep.  … He will be reviewed after a month.”

166. [166]
     On 15 March 2019, Dr Tho saw Graham again.  He reported to Dr Smith:

“I am glad with increasing Clonazepam up to 1.25mg [at night], he is able to sleep better, and thus, Rosie has the rest she needs.  Again, I am pleased that he has no hallucination while being on Aricept 5mg [once a day] and Duloxetine 30/60mg.  More importantly, there is no side effect. 

Thus, I have given Rosie three scripts, and hope it can keep him happy as he looked jovial today.  He will be reviewed after 3 months.”

167. [167]
     On 15 May 2019, Rosy’s solicitors wrote again to Dr Smith.  Apparently, they mistakenly thought Dr Smith had failed to provide the “medical report’ sought in their 14 December 2018 letter.  Obligingly, Dr Smith replied on 24 May 2019 with a copy of his 29 January 2019 letter, which he annotated with a further comment that:

“A MMSE of 18-23 is considered mild cognitive impairment, and 0-17 is severe.  Hence his score of 18 this would suggest moderate impairment.”

This explanation relates to Graham’s MMSE scores between August 2015 and January 2017. 

168. [168]
     The solicitors also wrote to Dr Tho. On 24 May 2019, Dr Tho replied:

“Thank you for asking me to provide a report relating to the management of [Graham].  Having interviewed and examined Mr Campbell on a few occasions, I now submit report in answer to your request.

As per the medical record from the clinical letters, as well as the QXR radiology reports, his cognitive function has deteriorated further from 2016 even though he has been treated from sleep apnoea.  It is subsequently confirmed from 2017 MRI brain, in keeping with dementing process.  Thus, he may not have had the testamentary capacity.” 

169. [169]
     Dr Smith and Dr Tho noted the progressive and then rapid deterioration of Graham condition.  By 21 June 2019, Dr Tho noted that “Rosie has carers coming 4 days a week” and that Graham “needs more help in feeding, personal hygiene, and limited communication.”  By 16 August 2019, Dr Tho reported to Dr Smith that Graham was “declining rapidly with poor balance and with little speech production.”

Professor Byrne

170. [170]
     Professor Byrne is a consultant psychiatrist and a Fellow of the Royal Australian and New Zealand College of Psychiatrists.  He is the Mayne Professor of Psychiatry and Head of Psychiatry within the Faculty of Medicine at the University of Queensland.  He is also the 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 that hospital. 

171. [171]
     Professor Byrne was able to articulate the appropriate legal tests for will-making capacity.  His opinions were framed with an understanding of them. 
172. [172]
     He was provided with a copy of the Will, and Graham’s death certificate.  He also had the general practice medical notes from 13 June 2012 to 8 August 2018, the reports of radiologists from 26 July 2013 to 9 August 2018, and the neurologists reports from 29 October 2015 to 16 August 2019.  These included the medical notes relating to Graham of his general practitioner, Dr Smith, and his Neurologist, Dr Tho, in February 2016, the month that instructions for the Will were taken and the Will executed.  He was briefed with and had considered the affidavits by Mr Speakman and Ms Pryce, as well as those of Rosy.  Mr Speakman exhibited his file notes of his meetings with Graham in February 2016 to take instructions for the Will and immediately before Graham executed the Will, and copies of the Will, Graham’s 2008 will and various EPS he executed in 2015 and 2016.  

173. [173]
     Professor Byrne considered the clinical records and reports of Graham’s treating doctors, Drs Towner, Gimpel, Chong, Tho, Daunt, Gribbin, Webb, and Clarke.  He offered the following clinical summary:

“The deceased died of a heart attack at the age of 68 years.  At the time of his death, he was suffering from dementia due to probable Alzheimer’s disease.  At the time of death, his dementia was severe and he required full-time care.

It appears that the deceased first presented to his general practitioner on 6 February 2013 at the age of 61 years reporting that other people had noticed that he had impaired memory function.  At that time, he was performing within the normal range on the Mini-Mental State Examination (MMSE: 27/30), had a normal brain scan, and was working as a self-employed Council truck driver.

Over the next seven years the deceased’s cognitive function progressively deteriorated until his death on 24 December 2019.

There was initial uncertainty about whether the deceased was suffering from dementia or whether something else, such as obstructive sleep apnoea, could explain his cognitive impairment.  There was also uncertainty about what type of dementia he might have, if he did have dementia.  Frontotemporal dementia and Lewy body dementia were considered, but ultimately discarded as evidence mounted for Alzheimer’s disease.  The PET/CT scan of 8 February 2017 showed a clear pattern of reduced radioactive uptake consistent with Alzheimer’s disease. 

In contrast to this preponderance of evidence, the death certificate records another type of dementia, vascular dementia.”

174. [174]
     Professor Byrne expressed his conclusion on the medical evidence in this way:

“Given the totality of the medical evidence, I think the deceased most likely had either mild cognitive impairment (mild neurodegenerative disorder) or mild dementia (major neurodegenerative disorder) on 16 February 2016 when he signed his last Will.”

175. [175]
     He explained:

“When the underlying cause of cognitive impairment is a progressive neurodegenerative disorder such as Alzheimer’s disease, the clinical syndrome of mild cognitive impairment merges into the clinical syndrome of dementia without a sharp boundary between the two. Individuals with dementia have substantial impairment in cognitive performance and their cognitive impairment interferes with their independence in everyday activities.” 

176. [176]
     In Professor Byrne’s opinion, “mild cognitive impairment or mild dementia does not usually deprive a person of an understanding of the nature and significance of a Will.”  He regarded it as relevant that Graham had made wills before, and that he had executed pre-nuptial agreements dealing with his major assets. 
177. [177]
     From the questions Mr Speakman asked and the answers Graham gave on 16 February 2016, Professor Byrne observed that “it appears the deceased was oriented to time, place and person, although he struggled to state the exact date and his wife’s middle name and date of birth.”  In Professor Byrne’s view:

“It appears that the deceased understood the nature and effect of a Will and was able to distinguish between the competing claims on his estate.  It appears that he understood that he had a wife, and three children, as well as grandchildren.

It appears that the deceased understood that there had been a property settlement with his former wife so that she would not receive anything under the provisions of the Will.”

178. [178]
     Professor Byrne reviewed the Will.  In his opinion, “even a person with a degree of cognitive impairment is likely to have been able to make such a Will.”
179. [179]
     In short evidence in chief, Professor Byrne explained that the CT and PET scans performed and reported by radiologists are not a diagnostic tool for dementia or cognitive impairment.  Rather they are “a method of trying to narrow down what the cause of any clinically-diagnosed cognitive impairment or dementia might be.” These reports are based on the visual impression of the images and, in Professor Byrne’s view, are “not as useful as one might think” and are sometimes “given greater significance, I think, by [referring] doctors than they should be”.  They also suffer from “a confirmation bias” looking to find what the referring doctor has suggested as the diagnosis “rather than being completely objective about it”. 
180. [180]
     In Professor Byrne’s opinion:

“normally the diagnosis of frontotemporal dementia, particularly in this context, is based on a clinical diagnosis, not the imaging findings from the brain.  The imaging findings are often used to augment or to support the clinical diagnosis, but the diagnosis is primarily a clinical one.  Frontotemporal dementia, which is mentioned several times in the materials that I reviewed, can have a number of different presentations.  One is a language one, where the person loses their language function as the first manifestation of dementia, before they have any memory problems.  And the other is a behavioural variant, where they lose their social graces before they have any other manifestations, such as memory problems. So – so the – the history, as I read it in – in the material that I was given didn’t sound like this at all.”

181. [181]
     Professor Byrne offered his view on the sleep apnoea identified in the medical reports:

“sleep apnoea is not generally considered a cause of dementia, but it is considered a cause of reversible cognitive impairment.  Sleep apnoea is where you stop breathing while you’re asleep, and we probably all stop breathing for short periods, but if you stop breathing for long periods and you stop breathing for long periods frequently, then your brain and other parts of the body don’t get enough oxygen and, as a result of that, you can sustain – initially it’s temporary - brain damage.  It would have to be an extremely severe case for it to cause permanent brain damage. … the sort of problems it can give is daytime sleepiness and reduction in concentration and attention.  So, the person can doze off more easily than … a person their age would normally do, and may be inattentive.  And if they were inattentive during cognitive testing, they might score poorly.”

182. [182]
     According to Professor Byrne, if Graham had obstructive sleep apnoea at the time he made the Will, its impact on his ability to make the Will would depend on how bad a night’s sleep he had prior to the day he made the Will.  He told the court:

“It’s quite difficult to say what impact it would have had on the day, but I think if it had an impact, it would be mainly on attention and concentration.”

183. [183]
     The impact of sleep apnoea on attention and concentration “could be improved by being supported by another person, drinking more coffee” and the various ways people improve concentration when they are not concentrating very well, according to Professor Byrne. 
184. [184]
     Professor Byrne also cautioned that the MMSE measure is not immune to the effects of education and age.  If Graham had limited education, “it might reduce by a point or two his score on these screening tests like MMSE.”  He also identified some harsh marking in a MOCA test on 17 August 2015.

Consideration of the evidence

185. [185]
     I accept Professor Byrne’s professional opinion that Graham had either mild cognitive impairment (mild neurodegenerative disorder) or mild dementia (major neurodegenerative disorder) when he signed the Will on 16 February 2016.  I find Graham was in the same situation on 5 February 2016, when he gave Mr Speakman instructions for the Will.  Professor Byrne’s opinion is supported by and consistent with the facts he has identified from the medical reports and notes and from the factual evidence in the affidavits tendered at the trial.  The documentation available to Professor Byrne greatly exceeded that available to Dr Smith and Dr Tho, who in February 2016 were treating Graham in relation to his short-term memory loss. 

186. [186]
     I also accept Professor Byrne’s opinion that a person with a degree of cognitive impairment is likely to have been able to make a will in the form of that Graham made on 16 February 2016.  This opinion is based on a lengthy career examining and treating patients and scholarly study of this specific field of medicine.  It is also consistent with the experience of courts.^[35]  I also accept the logical converse of the opinion, that a person with substantial impairment in cognitive performance, due to dementia, is unlikely to have been able to make such a will.
187. [187]
     Here, the Will is straightforward in format and content. It was prepared by a solicitor to be a will.  It was attested and signed by Graham in the presence of two witnesses, who also signed the instrument.
188. [188]
     One of the witnesses, Mr Speakman, was aware of Graham’s short-term memory issues and of the difficulties this was causing him with his employment.  Mr Speakman was then a solicitor of about 24 years standing.  Prudently, he had asked for the opinion of Graham’s treating medical practitioners about his capacity.  None had been received by the time Graham attended to review and execute the Will.  Mr Speakman took some steps to confirm Graham understood where he was and what he was doing, and that Graham could understand the testamentary wishes in the document before him, and that they would be given effect to by executing the proposed will.  Mr Speakman was not qualified to give any profession medical opinion on Graham’s cognitive state, but he observed Graham to be aware of and understand he was proposing to make a Will.  There was no noticeable lack of concentration or attention.  Nor did he find Graham anxious or aggressive. 
189. [189]
     Graham had experience with legal instruments about his significant assets.  He had made earlier Wills and pre-nuptial agreements.  In Professor Byrne’s opinion, Graham’s long-term and remote memory was less likely to have been affected by the issues he was encountering with his short-term memory. Graham’s awareness and appreciation of the significance of making a will was likely part of his long-term memory.  It was unlikely to have been adversely affected in the early stages of a dementing illness, where short-term memory was the first casualty. 

190. [190]
     Graham’s assets were not very complex.  He owned the home in Tyberry Street, where he and Rosy lived, and the neighbouring land at 2947 Old Cleveland Road with the shack, where he had lived before.  It appears he had owned one or both of these properties for about 20 years.  He had funds in the bank, and chattels, which would vary from time to time.  His other interests were in superannuation, which he had accumulated during his working life.  The management of the superannuation funds would likely change from time to time, on advice from Ms Pryce, as would the balances.  But the long accumulation stage was over by February 2016, as he prepared to retire from work at 65 and move to drawing a pension.  The superannuation entitlements were not to be part of his estate, save to the extent that he chose to nominate his personal representative as the beneficiary.  He does not seem to have made such a nomination, until after he made the Will when, on Ms Pryce’s advice, he did so sufficiently to carry out the intentions expressed in the bequests to his three children.  At their meeting eleven days before, Mr Speakman had noted that Graham understood some assets would be moved to facilitate the proposed specific bequests.  For most of his estate, Graham could rely on his long-term memory. 

191. [191]
     From Mr Speakman’s note, it is also clear that Graham was aware of his children, his grandchildren, his wife and his former wife, their possible claims on his estate by reason of his relationship with each, and the disposition he proposed to make, if any, in their respective favours in the proposed will.  He was able to name each of them.  These were the persons who might reasonably have had a claim on his estate. 
192. [192]
     He made specific bequests to each of his three children, indicating an understanding that they had some substantial, and (as between them) equal, moral claim on his bounty.  He left the residue to Rosy and, should she predecease him, to his three children.  In this way he indicated an understanding of Rosy’s moral claim as his spouse and dependent should she survive him.  He specifically made no allowance for his former wife Joan, despite their lengthy relationship.  He explained and attributed this decision to the divorce and property settlement reached on 3 February 2016, less than two weeks before he made the Will. 
193. [193]
     It could not be concluded from the Will, that Graham was unable to appraise his past and present relationships. This is perhaps the most difficult of the task for a person making a will.  In the present case, the Will indicates a “sound and disposing mind”.^[36]  The only “ill-feeling” in evidence is towards Joan, and it is explained.  In the language of Cockburn CJ, for Graham’s estate the Will does not “bring about a disposal of it which, if the mind had been sound, would not have been made.”^[37]
194. [194]
     I agree with Professor Byrne that this indicates Graham “could judge the relative merits of the claims of three classes of potential beneficiaries.”  As represented in the Will, his judgment appears rational.
195. [195]
     Graham’s estimation of his children’s claims on his estate does not seem harsh, unwarranted, or unnatural.  On the contrary, it seems generous.  When the Will was made, Graham had decided to retire from work.  He had land at Chandler, but most of his wealth was in superannuation funds held by trustees.  These would not form part of his estate, unless he made separate provision for that to occur and the trustees acted on his nominations.  Absent that separate provision, the three bequests to his children amounted to a very substantial portion of his likely estate.
196. [196]
     There is little evidence of regular contact between Graham and his children over the period between his separation from Joan and the signing of the Will.  This is not intended as any criticism of them.  Each of the children had their own family and social life.  Tracy had her own children.  Danielle lived with her husband in the Northern Territory, about 3,000 km away.  She saw her father “a few times” over this whole period.  Danielle and her husband were interested in the care of another relative for most of the period from 2015 onwards.  Stewart served for some time in the defence force.  None of the children gave evidence at the trial. 
197. [197]
     From the OPG report, it seems Danielle (and perhaps the other children) raised issues about Graham’s property, his contact with family and friends, his level of care, his personal interactions with Rosy and his capacity in 2019.  This may indicate attempts by Danielle (and perhaps the other children) to make closer and more regular contact with Graham from late 2018 or early 2019.
198. [198]
     Leaving aside his spouse Rosy, Graham’s only regular family contact seems to have been with his siblings and their spouses.  There was some recognition of this in a bequest to Jeannie in Graham’s two earlier wills.  Its absence from the 2016 Will does not appear irrational.  Kevin, who gave evidence of his regular social contact with Graham, was not a beneficiary under any of Graham’s wills. 
199. [199]
     Graham was aware of a change in his cognition, evidenced by his problems navigating his truck to and from the BCC depot, and his inability to locate objects, like his keys.  He spoke to Kevin about it.  Others shared this concern, including Rosy and his supervisors at work.  The evidence to early 2016 is of a decline in Graham’s short-term memory.  There is no evidence of lower performance on any other cognitive domain, such as attention, language, or visual perception.  He seems to have generally maintained his independence in activities of daily life without the need of aids or personal assistance.  There is no evidence of any significant impairment of his social functioning by February 2016, indeed before January 2017.
200. [200]
     At the annual review with Ms Pryce in November 2015, Graham was given a detailed overview of his assets: both those in his personal estate and those held for him in superannuation funds.  Shortly before he made the Will, he discussed with the solicitor the bequests he might make to his children.  His understanding of the different classes of assets he held is reflected in his comment to Mr Speakman about making provision with the trustee for some of his superannuation to be paid into his estate so that the bequests could be met.  He carried through this plan by establishing a separate pension fund into which he deposited $600,000 (11 November 2016), and signing a binding nomination form (4 or 7 March 2017).  These steps were consistent.  They were to the advantage of his children.  He was assisted by the advice he received from Mr Speakman and Ms Pryce. 
201. [201]
     These steps would have required Graham’s continued or repeated consideration of his testamentary disposition, his available assets, and the deployment of them to facilitate his testamentary intention.  They were taken from early February 2016, when he gave instructions to include them in his new Will, through to early March 2017, when he signed the binding nomination form.  I accept this as evidence Graham was able to form, plan and carry through an intention to leave each of the three children a specific, substantial, and equal bequest, including the dedication of a specific superannuation fund to provide his estate with the funds to meet the bequests.  In contrast to this, there is no evidence of impairment of his judgment and planning in or before he made the Will in February 2016. 

Conclusions

202. [202]
     The parties collected and tendered a great deal of evidence of observations, examinations, and investigations of Graham in the last five years of his life.  I have approached the evidence with caution and scrutinised it carefully to identify the parts that appear precise and those that are loose and inexact, as Dixon J advised.^[38] 
203. [203]
     I have considered all the facts proved which are relevant to Graham’s testamentary capacity.  In doing so, I have resisted being drawn into a preoccupation with the medical evidence, still less with the medical jargon.  The medical evidence is not an end in itself, requiring specific resolution.  It relevant only in so far as it throws light on whether Graham: appreciated the extent of the property to be disposed of; realised the various calls for disposition he should consider; and was able to evaluate those calls to give effect to the resulting dispositions by the provisions of the Will.^[39]
204. [204]
     I have accepted the diagnosis of Professor Byrne, made in retrospect after consideration of all the medical evidence.  It is that Graham had either mild cognitive impairment (a mild neurodegenerative disorder) or mild dementia (a major neurodegenerative disorder) on 16 February 2016 when he signed the Will. 
205. [205]
     To chart the course of Graham’s progressive disease, I have given greater weight to the contemporaneous reports about Graham’s actual behaviour made by medical professionals trained and experienced in making such notes.  I have also considered the MMSE results.  In doing so, I have kept in mind that the MMSE is not a test for testamentary capacity.  While it “may be an indicator of cognitive impairment”, it has been described as “a blunt instrument”; and so I have considered the results in conjunction with other evidence of Graham’s capacity at the time he made the Will.^[40]  It has some relevance, at least because Graham did the test perhaps six or more times between February 2013 and November 2018.^[41]  I am also mindful of Professor Byrne’s evidence that the results depend upon the way the test is administered and scored.  This makes the tests administered by the same practitioner more comparable to each other.  With those caveats, the scores recorded show in outline some relative changes in Graham’s cognitive abilities over that period.

206. [206]
     I have given weight to the more precise recollections of Mr Speakman and Ms Pryce.  I have given some weight to those of his brother Kevin, and his wife Rosy, but little weight to their evidence where it is vague in content and in timing.  With Rosy’s evidence, I have disregarded her general description of Graham’s behaviour where it is not consistent with the contemporaneous reports of the treating medical professionals.  The effect of this is to bring forward in time the deterioration of Graham’s cognitive function from about April 2018 (according to Rosy’s general comments) to about July 2017.  I have given lesser, if any, weight to the contemporaneous attempts to diagnose, classify or describe the nature of his illness.  In this respect, I have accepted Professor Byrne’s opinion that it is not appropriate to treat the radiological reports as diagnostic tools for cognitive impairment or dementia.
207. [207]
     Graham’s first report of short-term memory problems was in February 2013.  At that time his MMSE score was 27/30, consistent with normal cognitive function.  A year later, in February 2014, still with short-term memory problems, and added poor sleep and anxiety issues, he scored 28/30. 
208. [208]
     About 18 months later, in August 2015, with a new doctor, Graham’s MMSE score was significantly lower at 18/30. 
209. [209]
     His observed and reported behaviour remained roughly constant between about August 2015 and about January 2017.  He was independent with activities of daily living but had noticeable short-term memory loss.  He was able to drive but sometimes needed directions, leading to him ceasing work as a truck driver from Christmas 2015.  His MMSE scores over this period were measured at 18/30 (August 2015), 16/30 (February 2016) and 18/30 (January 2017). During this time, his obstructive sleep apnoea would also have noticeably affected his concentration on days when he had inadequate deep, oxygenated sleep or rest.  Mr Speakman observed no sign of lack of concentration or attention at his meetings with Graham on 5 and 16 February 2016 or on 30 May 2016.
210. [210]
     By July 2017, Graham showed increasing anxiety and aggressiveness; but he continued to be active.  By December 2017, he had been disqualified from driving and his treating general practitioner concluded that Graham was unable to make informed decisions about important medical and life decisions.  By October 2018 he was getting more confused.  Graham’s MMSE scores declined significantly over this period. They were 8/30 in January 2018 and the same in November 2018. 

211. [211]
     On the evidence I am persuaded that Graham was aware and appreciated the significance of making a new last will at the time he gave Mr Speakman instructions and at the time he executed the Will in February 2016.  Conscious of the nature and consequences of this finding, I am also persuaded that at those times he was also aware, at least in general terms, of the nature, extent and value of the estate that was within his power to dispose, like the real property he had acquired many years before, and the assets outside it, like his long-standing superannuation funds.  He is less likely to have known their current value, but I am satisfied he still knew those assets were substantial.  The evidence establishes that at those times he was aware of the individuals who might reasonably be thought to have a claim on his testamentary bounty.  I am satisfied he was aware of the basis for and the nature of their different claims.  I also find that at those times he was able to evaluate the strengths of these respective claims and discriminate between them.  In the circumstances, the Will accurately reflects Graham’s intentions formed at a time when he could make fully informed decisions.^[42] 
212. [212]
     It follows that Rosy has proved to the required standard that the Will executed on 16 February 2016 is the last will of Graham.  A pronouncement in favour of the Will should be made.  Subject to the usual conditions, a grant of probate should be made to her as executor and trustees under that Will. 

Final disposition

213. [213]
     The court should make orders to the following effect:

     1. (a)
        Pronouncing in solemn form of law for the full force and validity of the Will;
     2. (b)
        Subject to the formal requirements of the registrar and any outstanding compliance with the requirements of the UCPR, granting probate of the Will to Rosy; and
     3. (c)
        Providing for Rosy’s costs of and incidental to this proceeding to be paid out of the estate on an indemnity basis.