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Sullivan v Greig[2023] QSC 97

SUPREME COURT OF QUEENSLAND

CITATION:

Sullivan v Greig [2023] QSC 97

PARTIES:

LINDA ROSE SULLIVAN

(applicant)

v

VALERIE GREIG

(respondent)

FILE NO/S:

BS No 14749 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2023

DELIVERED AT:

Brisbane

HEARING DATES:

15 & 16 February 2023

JUDGE:

Williams J

ORDER:

  1. THE COURT ORDERS THAT:
    1. (a)
      The Court pronounces for the full force and validity of the Will of the deceased dated 15 November 2021.
    2. (b)
      Subject to the formal requirements of the Registrar, Letters of Administration of the deceased’s estate with the Will dated 15 November 2021 be granted to the respondent.
  2. FURTHER, THE COURT DIRECTS THAT:
    1. (a)
      the parties file written submissions of no more than 3 pages in respect of costs within 7 days of today.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where a will dated 15 November 2023 (the Will) appointed the respondent executor and named her as the sole beneficiary of the deceased estate – where the Will was dated one day prior to the deceased’s death – where the deceased was suffering a terminal illness – where the deceased and the respondent were close friends for 36 years – where the applicant is the only daughter of the deceased – where the applicant challenges the Will on grounds of the signature on the Will being a forgery and the deceased lacking testamentary capacity when the Will was executed – where the respondent contends that the Will was executed by the deceased and the deceased had the necessary capacity at the time – whether the Will is invalid because the deceased lacked testamentary capacity

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – FRAUD – where a will dated 15 November 2023 (the Will) appointed the respondent executor and named her as the sole beneficiary of the deceased estate – where the Will was dated one day prior to the deceased’s death – where the deceased was suffering a terminal illness – where the deceased and the respondent were close friends for 36 years – where the applicant is the only daughter of the deceased – where the applicant challenges the Will on grounds of the signature on the Will being a forgery and the deceased lacking testamentary capacity when the Will was executed – where the respondent contends that the Will was executed by the deceased and the deceased had the necessary capacity at the time – where the Court accepted the evidence of two witnesses that the deceased signed the Will in their presence – where the applicant presented no direct evidence disputing the authenticity of the deceased’s signature on the Will – whether the respondent has discharged the onus of satisfying the Court that the deceased signed the Will

Succession Act 1981 (Qld), s 18

Uniform Civil Procedure Rules 1999 (Qld), r 603

Williams, Mortimer & Sunnucks: Executors, Administrators and Probate, 20 ed

Law of Succession, 2 ed, Dal Pont & Mackie

Banks v Goodfellow (1870) LR 5 QB 549

Campbell v Campbell [2023] QCA 3

Parker v Felgate (1883) 8 PD 171

Re Burstyner [2021] VSC 531

Re Spencer [2015] 2 Qd R 435

Williams v Public Trustee of New South Wales (No 2) [2007] NSWSC 974

Worth v Clasohm (1952) 86 CLR 439

COUNSEL:

The applicant in person

R T Whiteford for the respondent

SOLICITORS:

The applicant in person

Shine Lawyers for the respondent

  1. [1]
    The applicant is the daughter of the deceased, Janita Rose Sullivan. The deceased died on 16 November 2021.
  1. [2]
    A will dated 15 November 2021 (the Will) appoints the respondent executor and names the respondent as the sole beneficiary of the deceased’s estate. The respondent has renounced executorship of the Will.
  1. [3]
    The applicant challenges the Will on two bases:
    1. (a)
      the deceased’s signature on the Will is a forgery; and
    2. (b)
      the deceased lacked testamentary capacity at the time the Will was executed.
  1. [4]
    The applicant seeks an order that the Court pronounce against the force and validity of the Will and grant of letters of administration on intestacy to the applicant.
  1. [5]
    The respondent contends that the Will was executed by the deceased and that the deceased had the necessary capacity at the time the Will was executed. Accordingly, the respondent seeks an order by way of counterclaim that the Court pronounce for the force and validity of the Will and subject to the formal requirements of the Registrar, probate of the Will be granted to the respondent.

Onus and issues to be determined

  1. [6]
    The onus is on the respondent to prove on the balance of probabilities that the document purporting to be the Will was signed by the deceased having testamentary capacity.
  1. [7]
    A presumption arises that the document purporting to be the Will was signed by the deceased having testamentary capacity by the production of what appears on its face to be a regularly executed and rational testamentary instrument. That presumption arises here.
  1. [8]
    The evidentiary onus then shifts to the applicant to raise a basis or reason to displace the presumption.
  1. [9]
    The applicant points to factors including the following:
    1. (a)
      The signature on the document purporting to be the Will is not that of the deceased.
    2. (b)
      The document purporting to be the Will is not rational on its face as there was the omission of the applicant, as the only child of the deceased, without any explanation.
    3. (c)
      The deceased did not have capacity at the time the document purporting to be the Will was executed.
  1. [10]
    The applicant points to the deceased’s medical records in respect of the issue of capacity, including:
    1. (a)
      The deceased was suffering from metastatic cancer, which had spread to a tumour on her brain.
    2. (b)
      On 13 November 2021, the deceased:
      1. had suffered a stroke and was admitted to Nanango Hospital.
      2. had a CT scan.
  1. (iii)
    was suffering from hypoxia and was unable to state her wishes.
  2. (iv)
    had a neurological deficiency of 4 on a scale of 4 – 6.
  1. (c)
    On 15 November 2021, the deceased:
    1. “got lost [and] couldn’t find her bed”.
    2. was “confused overnight …. unable to clearly voice treatment wishes”.
    3. was described by Dr Mazurka in an Acute Resuscitation Plan as not having the capacity to consent to and/or refuse medical treatment.
    4. at the time of signing her Will, had been prescribed 4mg of Dexamethasone.
    5. was assessed in a Nursing Assessment, Care Planner and Handover as showing a variance in neurological state (at 12.30 pm).
    6. was assessed at 3.10 pm as being unable to speak.
    7. at 5.30 pm was suffering “on-going confusion”.
  2. (d)
    On 16 November 2021, the deceased was unconscious by 8.30 am and died later that day, not having regained consciousness.
  1. [11]
    The respondent admits that the deceased was suffering from metastatic cancer, which had spread to a tumour on her brain, and on 13 November 2021 had suffered a stroke and was admitted to Nanango Hospital. However, the respondent contends that notwithstanding those matters the deceased was able to know and understand the functions of a will, the assets she could dispose of by a will, who she should consider making provision for by her will and was also able weigh the claims of persons on her estate.
  1. [12]
    Further, the respondent submits that some of the matters raised by the applicant in respect of capacity occurred after the time when the Will was signed.
  1. [13]
    It is not necessary for the Court to be satisfied of all factors raised by the applicant for the purposes of considering whether the presumption has been displaced.
  1. [14]
    Counsel for the respondent accepted at the hearing that the Court could find that the hospital nurse’s notes of the deceased’s confusion at night time alone may be sufficient to displace the presumption.
  1. [15]
    I am satisfied that the notes in the hospital records in the period from 13 to 15 November 2021 raise sufficient doubt about the capacity of the deceased to require the respondent to prove the Will in solemn form.
  1. [16]
    Consequently, the respondent must prove on the balance of probabilities that the deceased had testamentary capacity at the time the document purporting to be the Will was signed by the deceased.
  1. [17]
    The two principal issues that need to be determined in respect of the application are:
    1. (a)
      Did the deceased sign the document purporting to be the Will?
  1. (b)
    If so, did the deceased have testamentary capacity at the time of signing the Will?
  1. [18]
    It is necessary to consider the evidence, before considering these two specific issues.

Witnesses

  1. [19]
    Mr Andrew Calvert and Ms Kylie Wolski are health care professionals who assisted in the care of the deceased. They both gave evidence based on their contemporaneous notes. I accept their evidence.
  1. [20]
    Further, I accept the evidence of the respondent, Ms Julie Saunders and Ms Rae Burke and find them honest and reliable witnesses.
  1. [21]
    The applicant’s evidence was in many respects not directly relevant to the issues the Court needed to determine. Further, the applicant on at least one occasion changed her evidence giving an implausible explanation.[1] The respondent’s Counsel submitted that the Court should treat the applicant’s evidence with caution.
  1. [22]
    There is a basis for treating the applicant’s evidence with a degree of caution. Where the applicant’s evidence is relevant but conflicts with the evidence of the respondent or one of the witnesses called by the respondent,[2] I do not accept the evidence of the applicant and accept the evidence of the respondent, Ms Saunders, Ms Burke and Ms Wolski.

The deceased and her relationship with the applicant, the respondent and Ms Saunders

  1. [23]
    Much of the evidence at the trial was about the deceased and her relationship with the applicant, the respondent and Ms Saunders. Following is a summary of the relevant facts established by the evidence.
  1. [24]
    The deceased was born in 1962, was married at approximately 19 years of age and subsequently divorced. The applicant was born in 1981.
  1. [25]
    The deceased lived in Victoria up until approximately 2008. The deceased became close friends with the respondent.
  1. [26]
    In about 2008, the deceased moved to Queensland. The deceased and the respondent remained in frequent contact including by email, telephone and text.
  1. [27]
    The applicant’s relationship with the deceased was “strained” from approximately 2001. The last physical contact between the applicant and the deceased was in 2017.
  1. [28]
    Further, in or about October or November 2017, the applicant told the respondent that the deceased was “really bad. She is not good for my mental health and I am cutting her off”.
  1. [29]
    The applicant acknowledged in her affidavit sworn 13 February 2023 that the applicant’s relationship with the deceased “had somewhat deteriorated since an argument in 2018” and the applicant and the deceased were “not as close as [they] had previously been”.
  1. [30]
    In April 2019, the deceased bought a property consisting of five acres at Lot 22, Beitzel Road, South Nanango. The purchase settled on 22 June 2019. The real estate agent who handled the sale was Ms Julie Saunders.
  1. [31]
    Following the purchase of the property, the deceased lived in a shipping container on the property, without electricity being connected to the property. The deceased kept a horse, some chickens and a cat on the property.
  1. [32]
    Subsequent to the purchase of the property, the deceased and Ms Saunders developed a “casual friendship”.
  1. [33]
    On 26 December 2019, the applicant sent the deceased a text message accusing the deceased of being a poor parent, greedy and a “cold broken person” and saying that the applicant “genuinely” did not want the deceased to contact her. Further, the text message stated:

“Everything you ever did was only what you wanted.

So I’m going to say to you the exact words as I said to your ex husband.

I don’t want anything from you.

I don’t want your money nor do I want any of your assets.

Take me out of your will – it’s no skin off my nose. I’m not the one who is missing out.

Mum, I sincerely wish you nothing but happiness and hope you do find it. I hope you can one day work through whatever has been eating away at you your whole life.

I do worry about you but at the end of the day, I have to worry about and put me first because none [sic] else has and no one else will.”[3]

  1. [34]
    Between late July and early August 2021, the deceased was diagnosed with lung cancer. The deceased told the respondent and Ms Saunders about her diagnosis. She did not tell the applicant.
  1. [35]
    The respondent was unable to visit the deceased around this time due to the border closures as a result of the COVID-19 restrictions then in place. However, the respondent did have daily telephone contact with the deceased.
  1. [36]
    After the deceased’s cancer diagnosis, Ms Saunders also increased her contact with the deceased. Ms Saunders often had the responsibility of taking the deceased to medical appointments, including appointments in Brisbane, and generally helping the deceased with her shopping.
  1. [37]
    The respondent gave evidence that the deceased told the respondent that she did not want the applicant to know of her diagnosis.
  1. [38]
    Further, the deceased told the respondent in or about August 2021 that “I gotta do my will”.
  1. [39]
    Trial Exhibit 1 is a bundle of the Toowoomba Hospital records. This includes patient admission forms for the deceased’s admissions on 5 August and 19 August 2021.
  1. [40]
    On these admission forms, Ms Saunders is listed as the deceased’s next of kin and the respondent is listed as the second contact person. The applicant is not mentioned on these documents. Further, there is nothing in evidence to doubt that this contact information came from the deceased.
  1. [41]
    The Toowoomba Hospital records also include an entry for 20 August 2021 that the deceased discharged herself against medical advice. There is also a note that the deceased had a valid reason to do so and was “deemed to have capacity”.[4]
  2. [42]
    On 24 August 2021, the deceased informed the respondent that her tumour had spread. The respondent assisted the deceased to obtain copies of MRI results.
  1. [43]
    The Toowoomba Hospital records include a psychology note dated 6 September 2021 which states “friend (? name) who lives in ? Victoria whom she calls most days”. This is likely to refer to the respondent as there is no evidence of any other friend of the deceased in Victoria who the deceased called regularly.
  1. [44]
    From September 2021 and onwards, the deceased and Ms Saunders discussed making a will on at least six occasions. On each occasion, the deceased told Ms Saunders that she “wanted to leave everything to Val”, namely the respondent.
  1. [45]
    The Toowoomba Hospital records for 28 September 2021 include a note from the Day Oncology Unit on an administration and discharge form which records there being no change in ‘cognitive impairment/mood changes’ and ‘memory impairment’.[5]
  2. [46]
    In early October 2021, Ms Saunders visited the deceased. On that occasion, the deceased and Ms Saunders discussed the deceased making a will. The deceased said to Ms Saunders that she would have to sell her property to pay for her funeral. The deceased indicated to Ms Saunders that she needed to do a will “so Val got everything as she was her best friend”.
  1. [47]
    During this period, Ms Saunders offered to “look into wills” for the deceased.[6] Ms Saunders made those enquiries by telephone calls on 6 October 2021 as follows:
    1. (a)
      Ms Saunders telephoned two solicitors offices and was quoted between $275 and $295 plus GST to make a will. Ms Saunders was told that there were no appointments available for two to three weeks.
  1. (b)
    Ms Saunders telephoned the Public Trustee and was told there was “a long waiting time” to make a will. The person that Ms Saunders spoke to at the Public Trustee suggested a will kit be used.[7]
  1. [48]
    Ms Saunders told the deceased the results of her enquiries.[8]
  2. [49]
    On 3 October 2021, the deceased and the applicant spoke by telephone. During that telephone conversation, the deceased did not tell the applicant that she was ill.
  1. [50]
    During that telephone conversation, the applicant was hostile to the deceased and accused the deceased of telling a relative that she [the applicant] was “off (her) head” and of treating the applicant as “some outsider”. The applicant said that she could not see the point of the deceased calling her.[9]
  2. [51]
    On 8 October 2021, the deceased telephoned the applicant for her 40th birthday and the telephone conversation lasted three to four minutes.[10]
  3. [52]
    The applicant sent the deceased a text message following this telephone conversation. The text message was the last communication between the applicant and the deceased until the day the deceased died, 16 November 2021.
  1. [53]
    The text message dated 8 October 2021 included the following:

“Now you get to see why I am so fucking angry at you and Michael.

Why I want questions answered as to why both of you are such selfish arseholes.

Neither of you actual give a fuck about how you both affected me in such a way I feel nothing towards either of you.

You can tell Anna she is a meddling cunt and had no business talking about me to Michael or anyone else about me and speculating.”[11]

  1. [54]
    The deceased forwarded to the respondent the text message dated 8 October 2021 and part of a text message dated 26 December 2019.
  1. [55]
    On 8 October 2021, after forwarding the text messages to the respondent, the deceased told the respondent words to the effect that it was a pity she could not deny being the applicant’s mother.[12]
  2. [56]
    On 26 October 2021, the Toowoomba Hospital referred the deceased to the Kingaroy Hospital Palliative Care Service for Outpatient Palliative Care Assistance as recorded in the Palliative Care Service Referral Form.[13]

Deceased’s heath decline in November 2021

  1. [57]
    Subsequently, on 2 November 2021, the deceased was told by staff at the Toowoomba Hospital that she had no more than a month to live. This is evidenced by the Toowoomba Hospital records recording a note that the deceased was advised she had “month at most” to live.[14]
  2. [58]
    The respondent submits that it can be inferred from this that the deceased had every reason to get her testamentary affairs in order and that her statements to Ms Saunders about wishing the respondent to be her executor and sole beneficiary are likely to have been her actual intentions, not merely developing thoughts. I accept this is a reasonable inference open on the evidence.
  1. [59]
    On 4 November 2021, Ms Saunders bought a will kit and gave it to the deceased. The deceased and Ms Saunders read the will kit together.
  1. [60]
    There is a discrepancy in the evidence in respect of whether the deceased asked Ms Saunders to buy the will kit or whether Ms Saunders bought the will kit anticipating that the deceased needed it. The respondent’s evidence is that the deceased told the respondent that she had asked Ms Saunders to get the will kit. However, it is submitted that little turns on whether Ms Saunders bought the will kit because she anticipated the deceased needed it or whether in fact the deceased asked her to buy it. I agree with this submission.
  1. [61]
    When Ms Saunders and the deceased were reading the will kit together, the deceased told Ms Saunders that she wanted the respondent to be her executor and sole beneficiary.
  1. [62]
    Ms Saunders suggested that the deceased leave something to the applicant so the applicant would not contest the will. The deceased did not reply to that suggestion.
  1. [63]
    Further, Ms Saunders suggested that the deceased get the health care workers from the Palliative Care Service to assist her to complete the will kit.[15]
  2. [64]
    Ms Saunders gave evidence that:

“I recall that on that day, [the deceased] was alert and rational. She recognised me. There was no vagueness in her speech. She had no sign of wandering thoughts. I had no difficulty in having her understand me. I had no difficulty understanding her.”[16]

  1. [65]
    On 5 November 2021, a community nurse, Kylie Wolski, visited the deceased. During the visit, the deceased told Ms Wolski that she did not have a will, an advanced health directive or a power of attorney, although she had recently got a will kit.[17] This is recorded in an email written by Ms Wolski dated the same date of the visit, which documents Ms Wolski’s visit with the deceased.[18]
  1. [66]
    Ms Wolski gave evidence at the trial that at the time of the visit the deceased displayed no signs of impaired cognition.[19]
  2. [67]
    A few days later on 10 November 2021, Ms Saunders took the deceased shopping.[20]
  3. [68]
    Ms Saunders’ evidence in respect of the deceased on 10 November 2021 is as follows:

“I recall that [the deceased] seemed alert and rational that day also. She recognised me. I had no difficulty in having her understand me. I had no difficulty in understanding what she said. She showed no signs of vagueness or confusion.”[21]

  1. [69]
    The next day on 11 November 2021, a community nurse, Sheryl Ludke, visited the deceased at the Nanango property. Ms Ludke recorded in her notes as follows:

“[The deceased] shared her social history. Relocated to Nanango to her five acer [sic] block, two years ago from Logan. Lives in shipping container – [no] Electricity [no] Bathroom. Diagnosed in August 2021 CA Lung. M + F → RIP, [no] siblings, has one daughter → Linda (40 yo) → has contact, but not close. [The deceased] advises that her ‘very best friend, Val’, phones every day and they discuss [the deceased’s] treatment/symptoms/future plans

[The deceased] has social support from friends Julie (Real Estate), neighbours → Brendan/Trevor

Has not completed EPA/AHD/WILL. → in process?”[22]

  1. [70]
    The deceased told the respondent that the nurses who had come to her home declined to help her make a will.[23] This is also consistent with Ms Wolski’s evidence.[24]
  2. [71]
    On Friday 12 November 2021, the deceased and the respondent spoke by telephone for approximately 30 minutes. The respondent encouraged the deceased to go to hospital as she was concerned, from what the deceased told her, that the deceased might have a fever or have had a mild stroke as she was dropping things.[25]
  3. [72]
    The next day on Saturday 13 November 2021, the deceased was taken by ambulance to Nanango Hospital Emergency Department at approximately 11:32 am with shortness of breath, coughing, facial droop and slurred speech. Further, the deceased had experienced intermittent altered sensation in her left hand for a few days and ‘weakness/clumsiness’ onset the afternoon before which was worse that morning. The medical records also record that the deceased was speaking in phrases and was noted to be alert.
  1. [73]
    At 11:32 on 13 November 2021, the Rural and Remote Emergency Queensland Adult Deterioration Detection System Form records that the deceased was alert and also notes that the contact person was Ms Saunders.[26]
  2. [74]
    The medical notes also record that a stroke was suspected in the context of metastatic cancer and the deceased was sent to Kingaroy Hospital for a brain scan.
  1. [75]
    The deceased initially called Ms Saunders and requested that she be collected from the Nanango Hospital. The deceased also made a second telephone call to Ms Saunders and informed her she was being sent to Kingaroy Hospital for a scan.
  1. [76]
    At approximately 11:58 am that day, the deceased called the respondent but the respondent missed the call. The respondent called the deceased back and the deceased told the respondent that she believed she was going home and she had asked Ms Saunders to pick her up from the hospital. It is likely that this telephone call occurred prior to the deceased’s second telephone call to Ms Saunders.
  1. [77]
    At 3:54 pm on 13 November 2021, the Kingaroy Hospital conducted a brain scan that confirmed malignant tumours and a brain tumour: left frontal lobe lesion and multiple bilateral pulmonary masses.[27] At 4:55 pm on 13 November 2021, the deceased was administered 4 mg dexamethasone.[28]
  2. [78]
    At approximately 9:30 pm on 13 November 2021, the deceased was admitted to Nanango Hospital. The In-patient Falls Assessment and Management Plan records the deceased as not having “new onset or increased confusion/delirium” and not being “usually confused”.[29]
  3. [79]
    Further, at 9:30 pm on 13 November 2021, the Adult Pressure Injury Risk Assessment records a neurological deficit score of 4 on a range of 4 to 6.[30]

Events of Sunday 14 November 2021

  1. [80]
    On Sunday 14 November 2021, the deceased was seen by a doctor at the Nanango Hospital at 9:30 am. Dr Matthew Mazurka made notes which are included in the Nanango Hospital records at Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 70.
  1. [81]
    Dr Mazurka’s notes record that the deceased was under the impression she could go home with an oxygen cylinder. It also records that the deceased was keen to return to her animals but as she was living in a shipping container on the property without electricity for an oxygen concentrator, that was not feasible.[31]
  2. [82]
    At 9:46 am, the deceased telephoned the respondent and spoke with her for approximately 20 minutes.[32]
  1. [83]
    Ms Saunders also called the deceased that day. The deceased said to Ms Saunders that she was hoping to go home.
  1. [84]
    Ms Saunders visited the deceased that morning. While Ms Saunders was in the room a doctor came into the deceased’s room and said that there was nothing more that could be done for the deceased. The deceased said that she wanted to go home to see her animals and this was arranged for Monday, 15 November.
  1. [85]
    After the doctor left the room, the deceased and Ms Saunders went through the contacts stored on the deceased’s telephone to identify who should be told that the deceased was in hospital. The deceased said to Ms Saunders that she did not want the applicant told.
  1. [86]
    During the morning, the deceased and Ms Saunders went outside so that the deceased could smoke. Ms Saunders observed that the deceased had some difficulty rolling a cigarette as a result of clumsiness of her fingers.
  1. [87]
    The deceased asked Ms Saunders to bring the will kit to her and gave instructions that the will kit was in a plastic bag on a chair in the shipping container.[33]
  2. [88]
    Ms Saunders gave evidence that during this visit, the deceased “… showed no sign of vagueness or confusion. I had no difficulty in understanding her or having her understand me”.[34]
  3. [89]
    Following this, Ms Saunders went to the Nanango property to locate the will kit. She was able to locate the will kit in a plastic bag where the deceased said it would be.[35]
  4. [90]
    Ms Saunders returned to the hospital with the will kit but the deceased was asleep when she arrived, so Ms Saunders took the will kit home with her.[36]
  5. [91]
    The hospital records show that on 14 November 2021 at 1:05 pm, the deceased was given 5 mg oxycodone. Further, at 4:00 pm, the deceased was given 4 mg dexamethasone.
  1. [92]
    At 7:06 pm that day, the deceased telephoned the respondent and they spoke for 13 minutes.[37]
  2. [93]
    At 9:30 pm on 14 November 2021, the hospital records contain a nurse’s note that the deceased was mobile but very confused and had to be redirected to bed.[38] That entry in the hospital records does not address whether it was easy or difficult to redirect the deceased to bed.
  1. [94]
    On Monday 15 November 2021 at 4:35 am, there is a nursing note by Andrew Calvert, a registered nurse, as follows:

“Pt has been unsettled at times, Mobilised to the toilet & got lost & couldn’t find her bed. Redirected with little effort …”[39]

  1. [95]
    Mr Calvert gave evidence at trial that patients with cognitive problems such as dementia tend to be difficult to redirect as they are insistent that their bed is not their bed.[40] This is in contrast to what is recorded in the note, namely the deceased could be redirected with little effort.
  1. [96]
    Ms Saunders gave evidence that on 15 November 2021 before going to the hospital she completed the will kit in accordance with the deceased’s previous instructions, having heard those instructions several times.[41] Ms Saunders wrote in the will kit the respondent’s name as the executor and the sole beneficiary.
  1. [97]
    Further, the will kit instructions said that any special instructions should be left with the will. Based on this instruction, Ms Saunders prepared a separate sheet of paper with instructions for dealing with the deceased’s horse, Chewie, and her cat. As Ms Saunders was uncertain about the spelling of the cat’s name, she left a blank space for the cat’s name to be inserted.[42]
  2. [98]
    The separate instruction sheet provided that the cat was to be given to Doreen Campbell. The cat had taken a liking to Ms Campbell and that is what the deceased wanted. However, a suitable home had not yet been found for the horse, Chewie. The special instructions reflected this. The separate piece of paper with the instruction reads as follows:

“Special request:

cat to Doreen Campbell

Chewie to most appropriate home – Julie Saunders to decide.”

  1. [99]
    At 8:35 am on Monday 15 November 2021, Ms Saunders telephoned a friend, Ms Burke, and asked her to come to the hospital to act as one of the witnesses for the deceased’s will. Ms Saunders was aware that two witnesses were required for a will.[43]
  2. [100]
    Following making these arrangements, Ms Saunders went to the hospital. Ms Saunders’ evidence was that the deceased recognised her when she arrived.[44]
  3. [101]
    At 9:00 am on 15 November 2021, Dr Mazurka recorded observations in the deceased’s hospital records. Dr Mazurka’s notes record that the deceased was “confused overnight”, that “r/val yesterday PM w friend Julie present and pt appeared a bit worse”, that the deceased was “oriented to person and place”,[45] that he had discussed the deceased’s treatment with the deceased and Ms Saunders “again today” and that the deceased was not keen on having further treatment. [46]
  1. [102]
    Dr Mazurka’s notes also record that if there was ongoing confusion and no improvement in symptoms, he would cease dexamethasone the next day.
  1. [103]
    At approximately 9:13 am on Monday 15 November 2021, Ms Burke arrived at the hospital. Ms Saunders introduced the deceased to Ms Burke and also said that Ms Burke was there to witness the will. Ms Burke had not previously met the deceased.
  1. [104]
    Ms Saunders’ evidence was as follows:

“… assisted [the deceased] to sit up and swing her legs over the side of the bed so she could see and sign the will and the extra sheet of paper about the animals. She had the oxygen prongs in each of her nostrils. [The deceased] was dribbling, so much that she needed tissues to wipe her mouth. Her speech may have been slurred however I had no trouble understanding what she said.”[47]

  1. [105]
    Ms Burke provided an affidavit and also gave oral evidence and was cross-examined at the hearing. Ms Burke gave evidence that after helping the deceased to sit up, Ms Saunders had left the room for a short time to compose herself.
  1. [106]
    Further, Ms Burke’s evidence was that while the deceased “looked terribly ill she was able to talk sensibly to me. [The deceased] told me about her horse and that the horse’s name was ‘Chewie’. She also told me how grateful she was for [Ms Saunders’] friendship and annoyed that she could not get out of bed and get on with it. As [Ms Saunders] re-entered the room [the deceased] showed me and [Ms Saunders] a photo of Chewie on her phone …”[48]
  2. [107]
    Further, Ms Saunders gave evidence as follows:

“… started reading the will to [the deceased]. She interrupted me and said ‘Val is the executor and beneficiary’. I then showed her each page, reading funeral directions (cremation) and body organ donations (no).”[49]

  1. [108]
    Ms Burke’s evidence is that she saw Ms Saunders put the will on a bedside table and read it to the deceased. Ms Burke further gave evidence that:

“I cannot now recall precisely what [Ms Saunders] read out. [The deceased] appeared to listen to what [Ms Saunders] was reading.”[50]

  1. [109]
    Ms Saunders further said that she asked the deceased how to spell the name of her cat. She understood the deceased to say “M-a-y-l-e-r” and wrote that word in the space she had left on the sheet of instructions about the animals.
  1. [110]
    The applicant in submissions puts some emphasis on the error about the spelling of the cat’s name. The cat’s name was “Marlie”. The respondent submits that the error is likely to have occurred because the deceased had speech difficulties due to facial droop. However, the respondent submits that, importantly, at that time the deceased knew she had a cat and a horse.
  1. [111]
    In respect of signing the Will, Ms Burke gave evidence that Ms Saunders gave the deceased a pen and that the deceased signed the instructions about the animals first and then the Will.[51] This is also consistent with the evidence of Ms Saunders.[52]
  2. [112]
    Ms Saunders and Ms Burke then signed both documents as witnesses. This is consistent with the evidence of both Ms Saunders and Ms Burke. [53]
  3. [113]
    Ms Burke’s evidence was that the deceased “looked relieved by the expression on her face after signing the will and the instructions for the animals”.[54]
  4. [114]
    Following the signing of the Will, Ms Saunders retained the original of the Will and the original of the animal instructions so they would not be lost.[55]
  5. [115]
    Following the signing of the documents, Ms Saunders walked Ms Burke to her car. Ms Saunders was upset and Ms Saunders and Ms Burke hugged. Following that, Ms Saunders returned to the hospital and Ms Burke left.[56]
  6. [116]
    Later that day on 15 November 2021 at approximately 12:30 pm, Ms Saunders drove the deceased to her property to say goodbye to her animals. During this visit, the deceased was in a wheelchair.[57]
  7. [117]
    Ms Saunders’ evidence was as follows:

“On the way to her home she showed no signs of vagueness or confusion and she did not have any problems communicating with me. At her home she said goodbye to her animals. After we had been at her home for an hour or so, I noticed she started to become vague. She was attempting to suck on her oxygen tubing as though it were a cigarette. Because of this I decided to take her back to the hospital. When she got into my car she took a piece of chewing gum which was in my car and started to chew on it. I was concerned she might choke on the gum with it in her mouth and asked her to take it out which she did without complaint.”[58]

  1. [118]
    Ms Saunders and the deceased returned to the hospital at approximately 3:15 pm.[59]
  1. [119]
    At 2:18 pm (Queensland time), the deceased and the respondent spoke on the telephone “about the past” and a book the deceased had intended to write.[60]
  2. [120]
    The Hospital Records for 15 November 2021 include a nursing entry at approximately 3:05 pm that the deceased appeared to have more difficulty swallowing tablets and food and that the deceased was out on leave to visit her horses with her friend, namely Ms Saunders. It notes that the patient had a hospital wheelchair and oxygen.
  1. [121]
    The Hospital Records indicate that the deceased returned to the ward at 3:15 pm.
  1. [122]
    The Hospital Records up to this time are consistent with the deceased being alert and not complaining of pain.[61] This is based on a consideration of the following records:
    1. (a)
      No changes had been made to the deceased’s nursing care plan due to deterioration in her “psychosocial” status, being the appropriate thought processes and behaviour.[62]
    2. (b)
      The deceased remained alert as recorded at Affidavit of L R Sullivan, Court document 7, Exhibit LS-1 pages 55 and 57.
    3. (c)
      On the morning of 15 November 2021, a change was made to the nursing care plan and recorded in Affidavit of L R Sullivan, Court document 7, Exhibit LS- 1 at page 61. This was a change to the deceased’s “neurological” status, dealing with alertness and orientation and also includes clarity of speech.
  1. [123]
    The respondent submits that the recorded change was likely due to the deceased’s speech. The respondent concedes that due to facial droop, the deceased had some speech difficulties on the morning of 15 November 2021.
  1. [124]
    The Hospital Records indicate a rapid deterioration in the deceased’s condition in the afternoon of 15 November 2021. This includes:
    1. (a)
      At 3:55 pm she was given 5 mg of oxycodone.[63]
    2. (b)
      At 4:00 pm she was given 5 mg of dexamethasone.[64]
    3. (c)
      At 5:30 pm Dr Mazurka noted:

“Had gate leave w friend Julie today → managed to see animals

→ many thanks to Julie for same

Ongoing confusion + swallow concerns

Needs to be d/w NOK

→ Likely will need Julie + ? friend Val involved

→ ? ceiling of care clarified

→ Confirm NFR

→ Plan for palliative care

→ PRNs charted in interim

If unsettled/agitated O/N please use sparingly the control given further risk to cause aspiration + confusion.”[65]

  1. (d)
    At 6:10 pm the hospital records include a note that the deceased was “unable to state” how much pain she was in.[66]
  2. (e)
    At 6:35 pm the deceased was given 5 mg of morphine. This was the first time that that drug was administered.[67]
  3. (f)
    At 7:10 pm Dr Mazurka reviewed the deceased and noticed that she was “acutely worse” and was “unable to clearly voice treatment wishes”. Further, the notes record that if there was no response to treatment overnight “full palliative care” should be instituted. Dr Mazurka at this stage completed an Acute Resuscitation Plan to reflect this.[68]
  4. (g)
    At 7:15 pm the Care Plan for Dying Person was commenced.
  5. (h)
    At 10:00 pm 5 mg of morphine was administered to the deceased.
  6. (i)
    At 11:00 pm 5 mg of morphine was administered to the deceased.[69]
  1. [125]
    On Tuesday 16 November 2021, the deceased was moved “due to steady decline for comfort”.[70]
  2. [126]
    Further, the hospital records on 16 November 2021 record that at 8:15 am Dr Mazurka noted that the deceased was unconscious and unresponsive. Both Ms Saunders and the respondent were notified of the deterioration. The notes record that the respondent would attempt to contact the deceased’s daughter (the applicant). [71]
  3. [127]
    On the morning of 16 November 2021, Ms Saunders visited the deceased and found the deceased was unconscious. Ms Saunders texted the deceased’s friends informing them of the deceased’s condition. In the texts, Ms Saunders recommended to the deceased’s friends that they say goodbye.
  1. [128]
    Further, with the nurse’s permission, Ms Saunders took the deceased’s phone and wallet.[72] At 9:30 am on 16 November 2021, Dr Mazurka phoned the respondent and informed her that the deceased was now in palliative care. The respondent agreed to let the applicant know.[73]
  1. [129]
    At 1:00 pm on 16 November 2021 the respondent telephoned the applicant. On that telephone call, the applicant said, “well I didn’t even know where the fuck she lived”.[74]
  2. [130]
    At approximately 2:30 pm on 16 November 2021, the hospital’s social worker contacted Ms Saunders and asked her to contact the applicant. Ms Saunders telephoned the applicant and arranged for the applicant to make a video call.[75] The applicant made a video call on the afternoon of 16 November 2021.
  1. [131]
    The deceased died at 6:45 pm on 16 November 2021. Ms Saunders was present at the time of the deceased’s death.[76]
  2. [132]
    On 17 November 2021, Ms Saunders informed the respondent that she was the executor and sole beneficiary of the deceased’s Will.
  1. [133]
    The respondent had previously been unaware that she was named as both executor and sole beneficiary of the deceased’s Will. The respondent engaged a firm of solicitors in Kingaroy, namely J A Carroll, to assist with the administration of the deceased’s estate.
  1. [134]
    The respondent requested Ms Saunders to deliver the Will to J A Carroll. Ms Saunders delivered the Will and the animal instructions to the solicitor’s office that day.[77]
  2. [135]
    By letter to J A Carroll on about 23 November 2021, the applicant disputed the validity of the Will.[78]
  3. [136]
    Consequently, J A Carroll, by letter dated 25 November 2021, advised the respondent to renounce executorship of the Will.[79]
  4. [137]
    Based on this advice, the respondent executed a renunciation of executorship on 29 November 2021.[80] The respondent did not disclaim her interest in the estate.

The deceased’s estate

  1. [138]
    The estate consists of property at Beitzel Road, South Nanango, valued at approximately $70,000 and cash of approximately $1094.48. The total value of the estate is approximately $71,094.48.
  1. [139]
    The deceased’s former fiancé paid for her funeral, being $3850, which is yet to be reimbursed. There is also an unsecured loan of approximately $35,000 but the financier has said it does not propose to recover that amount.[81]
  1. [140]
    It is anticipated that there are also further liabilities such as rates and property sale costs which would need to be accounted for in the administration of the estate.

Is the Will invalid because the deceased’s signature on the Will is a forgery?

  1. [141]
    The onus is on the respondent to satisfy the Court that the deceased signed the Will.[82]
  2. [142]
    An allegation of forgery of a signature is a serious matter. Given the seriousness of the allegation the Court is to assess the evidence accordingly. Consequently, on the civil standard a high standard of proof is required to establish “so serious a charge”.[83]
  3. [143]
    Both Ms Saunders and Ms Burke gave evidence that the deceased signed the Will in their presence. Further, both Ms Saunders and Ms Burke have no financial interest in the outcome of the case. I accept the evidence of both Ms Saunders and Ms Burke.
  1. [144]
    The applicant presented no direct evidence disputing the authenticity of the deceased’s signature on the Will.
  1. [145]
    Given the evidence about the state of her health, including that she was experiencing some clumsiness of her hands, it is not unexpected that there is some variation in the deceased’s signature on the Will when compared to other examples of the deceased’s signature.
  1. [146]
    In the circumstances, given the direct evidence from Ms Saunders and Ms Burke that the deceased signed the Will in their presence, I find that the deceased signed the Will and the animal instruction sheet on 15 November 2021.
  1. [147]
    Accordingly, the applicant’s contention that the deceased’s signature on the Will is a forgery must fail.

Is the Will invalid because the deceased lacked testamentary capacity?

  1. [148]
    The applicant contends that the deceased did not have testamentary capacity and that the circumstances of the execution of the Will are “absolutely suspicious”.[84]
  2. [149]
    The applicant submits that the respondent is not able to establish “clear and decisive proof”. Further, the applicant contends that the evidence, as a whole, is sufficient to “throw doubt upon [the deceased’s] capacity”.[85]
  3. [150]
    In respect of the medical evidence, the applicant’s contentions are summarised at [10] above.
  1. [151]
    In respect of Dr Mazurka’s note “orientated to person and place”, the applicant concedes that she misread the handwriting as being “disorientated to person and place”. The applicant in closing submissions expressly stated that the notes do not state what she originally contended but she did not intend to deliberately be misleading.[86] In respect of this issue, I accept that the applicant misread the note and the point was conceded appropriately when it was raised during the trial.
  1. [152]
    The applicant relied upon the contemporaneous medical records and called Andrew Calvert as a witness in respect of testamentary capacity. Mr Calvert is a registered nurse and was employed at Nanango Hospital. His evidence was that he could not recall the deceased beyond what he had recorded in his notes.
  1. [153]
    The applicant submits that the test of testamentary capacity as set out in Banks v Goodfellows[87] is not established on a consideration of the whole of the evidence. Accordingly, the Court should pronounce against the force and validity of the Will and grant Letters of Administration on intestacy to the applicant.
  1. [154]
    The respondent concedes that by the morning of 15 November 2021 the deceased was very ill and her mental capacity was affected to some extent. However, the respondent ultimately submits the Court should be satisfied that the deceased retained sufficient capacity to satisfy the Banks v Goodfellow tests.
  1. [155]
    In respect of the Banks v Goodfellow tests, the respondent contends that the tests are met as:
    1. (a)
      The medical evidence relied on by the applicant does not address the Banks v Goodfellow criteria. While the treating doctor’s notes refer to “confusion”, the doctor does not say that he was evaluating the deceased’s testamentary capacity. The treating doctor was focused on the deceased’s decision in an end-of-life context.[88] The hospital records are consistent with the deceased retaining testamentary capacity: see [122](a) above.
    2. (b)
      In particular, the respondent points to the medical records as showing that:
      1. The deceased was not administered strong medication in the 12 hours before the Will was signed.[89]
      2. The deceased was not in significant pain and was alert at the time the Will was signed.[90]
    3. (c)
      In these circumstances, it is submitted that the lay evidence assumes greater significance. The respondent contends that the lay evidence strongly supports the deceased having capacity when she executed the Will. In particular, the respondent points to:
      1. Ms Burke’s evidence that the deceased was able to “talk sensibly” to her at that time.
      2. Ms Saunders’ evidence that:

“At no time during the morning before she signed the will and while we were at the hospital was she vague or confused. She had no problems communicating with me that morning and I had no difficulty in understanding her.”[91]

  1. (iii)
    Ms Saunders worked as a registered nurse from 1982 until she commenced working as a real estate agent in 2015.[92]
  1. [156]
    The submissions on behalf of the respondent address each of the Banks v Goodfellow criteria, namely:
  1. (a)
    ability to understand that a will was being made;
  2. (b)
    ability to understand what her assets were;
  3. (c)
    ability to know who she should consider making provision for in her will;
  4. (d)
    ability to weigh and evaluate claims on her estate.
  1. [157]
    In respect of the ability to understand that a will was being made, the respondent submits that there is ample evidence on the morning of 15 November 2021 that the deceased was aware that she was engaging in the act of making a will.
  1. [158]
    Prior to that date, the deceased had repeated discussions about making a will with Ms Saunders.
  1. [159]
    Further, on 14 November 2021 the deceased asked Ms Saunders to bring the will kit to the hospital for her. As the deceased knew that time was limited, the making of a will was the most likely reason for her to ask for the will kit.[93]
  2. [160]
    The deceased gave instructions to Ms Saunders where the will kit was located. This was the correct information.
  1. [161]
    Further, when Ms Saunders arrived at the hospital on 15 November 2021, she informed the deceased that she was there with Ms Burke and Ms Burke had come to witness the Will.
  1. [162]
    Relevantly, when Ms Saunders commenced reading the Will, the deceased repeated that the respondent was to be her executor and sole beneficiary. This was consistent with her previous comments in respect to the preparation of the Will. This statement also reveals that she understood she was engaged in the act of making a will.
  1. [163]
    Further, the evidence of Ms Burke was that the deceased looked relieved after she signed the Will. This also supports that the deceased had the ability at the time to understand that a will was being made.
  1. [164]
    In respect of the second criteria, namely the ability to understand what her assets were, the respondent submits that the deceased did not have a complicated estate. Accordingly, it would not take much capacity to know and understand what she owned. The only significant asset was the Nanango property, as well as her animals.
  1. [165]
    The evidence shows that the deceased was well aware of her property and her animals. On 14 November 2021, she asked Ms Saunders to fetch the will kit from the Nanango property. Further, on 15 November, she showed Ms Burke a photograph of her horse, gave a name for her cat and asked to be taken to the property to say goodbye to her animals.
  1. [166]
    In respect of the ability to know who she should consider making provision for in her will, only two persons were the obvious choices in respect of the deceased’s testamentary consideration: the applicant, her daughter, and the respondent, her closest friend.
  1. [167]
    On Sunday 14 November, the deceased was aware of the applicant as she discussed the applicant with Ms Saunders. She was also aware of the respondent because she mentioned her when Ms Saunders commenced to read the Will and because she is named in the Will.
  1. [168]
    In respect of the ability to weigh and evaluate claims on her estate, the respondent contends that the gift of the deceased’s estate to the respondent is entirely rational.
  1. [169]
    The respondent points to the fact that she had been the deceased’s close friend since 1985, being approximately 36 years. They were in almost daily contact since the deceased’s cancer diagnosis and had discussed the deceased’s treatment, symptoms and future plans.[94]
  2. [170]
    Independent evidence including the entries in the Toowoomba Hospital records[95] are consistent with this. The deceased’s statements to Ms Ludke[96] and the deceased’s statements to Ms Saunders are also consistent with this.[97]
  3. [171]
    The applicant’s own statements in her telephone conversation with the respondent on 16 November 2021 also support this as the applicant was aware that the respondent loved the deceased like a sister.[98]
  4. [172]
    The applicant was also aware that the respondent had always been regarded as the deceased’s next of kin and was the only person the applicant thought the deceased sufficiently trusted to write her will.[99]
  5. [173]
    The evidence supports the conclusion that by the time the Will was made, the applicant’s relationship with the deceased was poor.
  1. [174]
    This is consistent with the evidence that the deceased said it was a pity she could not deny the applicant was her child and also that the deceased did not tell the applicant of her terminal illness.
  1. [175]
    It is in these circumstances that the respondent submits that the absence of provision for the applicant in the Will is not suggestive of incapacity. This is particularly so given the applicant’s 26 December 2019 text message where the applicant told the deceased she wanted to be removed from the deceased’s will.
  1. [176]
    The applicant contends that the deceased “was aware that upon intestacy, her estate would come to me”.[100]The respondent contends that this is a further reason for the deceased to make a will leaving everything to the respondent. That is, the deceased would not want the applicant to take her estate on intestacy.
  1. [177]
    The respondent also relies on the reasoning in the decision of Re Spencer [2015] 2 Qd R 435. In that case, a testator gave instructions for a will to a solicitor in May 2013. A will was not prepared at that time as the solicitor declined to act as executor as the testator wished. On 9 August 2013, the testator contacted the solicitor having been diagnosed with cancer and only having one week to live. The solicitor did not prepare a will at that time. On 12 August 2013, the testator contacted the solicitor’s office and said he wanted the will prepared now. The solicitor did so and took the draft will to the hospital on 13 August 2013. The will was not signed on that day because the deceased had lost capacity by the time the solicitor arrived. The deceased died on 14 August without signing the will.
  1. [178]
    Dalton J (as her Honour then was) found that the unsigned will formed an informal will under s 18 of the Succession Act 1981 (Qld) provided the deceased had testamentary capacity at the relevant time. Her Honour concluded that the deceased did have capacity and applied the rule in Parker v Felgate (1883) 8 PD 171, namely:

“If a person has given instructions to a solicitor to make a Will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good Will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a Will making a certain disposition of my property. I have no doubt that he has given effect to my intention and I accept the document which is put before me has carrying it out’... A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it’; it is not, of course, necessary that he should use these words, but if he is capable of that train of thought in my judgment that is sufficient.”[101]

  1. [179]
    The decision of Parker v Felgate has been consistently followed in both Australia and England.
  1. [180]
    The rule was recently affirmed in Campbell v Campbell [2023] QCA 3 at [23] which states:

“Where there is a decline in the mental condition of a testator between the date instructions were given for the will and the date the will is executed, the critical date for determining testamentary capacity is the date the testator gave instructions for the will, if the testator accepts when executing the will that it reflects the instructions given by the testator.”

  1. [181]
    The respondent submits that the reason for the rule is because the courts strive to give freedom to testamentary disposition and uphold transactions, and because of their pragmatic recognition that the testator has no further opportunity to give expression to his or her wishes.
  1. [182]
    In respect of the current case, the respondent points to the following:
    1. (a)
      Between September 2021 and 13 November 2021, there is convincing evidence that the deceased had capacity and the deceased repeatedly told Ms Saunders that she wanted to leave her estate to the respondent.
    2. (b)
      On 14 November 2021, the deceased requested Ms Saunders bring the will kit to her in hospital, from which it can be inferred the deceased intended to complete and execute the will kit.
    3. (c)
      The deceased did not request Ms Saunders to complete the will. When Ms Saunders came to the hospital on 15 November with the will kit already completed, it is likely that the deceased assumed that it had been completed with her previously expressed wishes. There is no reason or other evidence that tends to suggest that Ms Saunders would do otherwise.
    4. (d)
      The only capacity which the deceased required on the morning she executed the Will was to accept that the document put before her carried out and properly expressed the intention she previously stated to Ms Saunders. That is what the Will did.
    5. (e)
      Further, that the deceased had capacity to that extent is evident from her statement to Ms Saunders, namely “Val is the executor and beneficiary”. The deceased then signed the Will.
  1. [183]
    Following consideration of all of the evidence, I make the following findings:
    1. (a)
      The deceased had a rational reason to make a will at the time the Will was executed. She was aware that her health was declining.
    2. (b)
      The deceased had two people to consider in respect of making her will: the applicant and the respondent, being her daughter and her close friend.
    3. (c)
      The deceased had only a few assets to be considered: her property, a small amount of funds, her horse and her cat. Her property, her horse and her cat were clearly in her thoughts as she wanted to, and did, visit her property to see her animals the day before she died.
  1. (d)
    The gift of the deceased’s estate to the respondent was rational. The respondent and the deceased had been close friends for approximately 36 years. The deceased’s relationship with the applicant was at best “strained”, at worst “estranged”.
  2. (e)
    The uncontradicted evidence of the respondent, Ms Saunders and Ms Burke is that at the relevant time the deceased knew and understood that she was making a will and knew what she was doing. The deceased’s wishes as reflected in the Will were also consistent with what she had expressed on a number of occasions to Ms Saunders.
  3. (f)
    Relevantly, on the morning of 15 November 2021, the deceased had the ability to understand that a will was being made, an ability to understand what her assets were, an ability to know who she should consider making provision for in her will and an ability to weigh and evaluate claims on her estate.
  1. [184]
    While it may be open on the evidence that the deceased’s cognition was impaired to some extent at the specific times recorded in the medical notes, on all of the evidence the deceased had sufficient capacity at the time that the Will was executed to meet the requirements of the Banks v Goodfellows test and to make a valid will.
  1. [185]
    In these circumstances, testamentary capacity has been proven. However, if I am wrong and there remains some residual doubt, the same result is reached.
  1. [186]
    This conclusion is supported by the comments of the High Court in Worth v Clasohm (1952) 86 CLR 439 at [453] where Dixon CJ, Webb and Kitto JJ stated:

“The effect of a doubt initially is to require a vigilant examination 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.”

  1. [187]
    As a result of the above findings it is not strictly necessary for me to consider the further argument by the respondent based on the decision in Re Spencer.[102] However, if I am wrong about the deceased having testamentary capacity on the morning of 15 November 2021, there is sufficient evidence to find that the deceased had a more limited capacity that morning of accepting that the document carried out and properly expressed the intentions she had previously stated to Ms Saunders.[103] Further, the deceased in fact confirmed this by repeating those instructions when the contents of the Will was read to her immediately before she signed it.
  1. [188]
    Accordingly, this alternative approach would also result in the deceased having sufficient capacity for the Will to be valid.

Knowledge and approval

  1. [189]
    The respondent also acknowledges that in addition to being satisfied of both due execution and capacity of the deceased, the Court must also be satisfied that the deceased knew and approved of the contents of the will.[104]
  2. [190]
    The respondent contends that the Court should be satisfied of this because:
    1. (a)
      the documents signed corresponded with the deceased’s intentions repeatedly expressed to Ms Saunders prior to 15 November 2021;
    2. (b)
      before signing the Will, the deceased repeated that she wanted the respondent to be her executor and beneficiary, which was what the Will provided; and
    3. (c)
      the deceased signed the Will after it was read to her.
  1. [191]
    It is submitted on behalf of the respondent that in these circumstances the Court should pronounce in favour of the Will dated 15 November 2021.
  1. [192]
    Further, it is contended that while the respondent has renounced executorship, she is entitled to Letters of Administration of the deceased’s estate with the Will in her capacity as residuary beneficiary.[105]
  2. [193]
    I am satisfied on the evidence that the deceased knew and approved of the contents of the Will.
  1. [194]
    Accordingly, the respondent has discharged the onus and established that the Court should pronounce in favour of the Will dated 15 November 2021. In the circumstances, it is also appropriate that the respondent be granted Letters of Administration in her capacity as residuary beneficiary.

Costs

  1. [195]
    In the Points of Defence and Counterclaim the Respondent seeks indemnity costs. I will hear further from the parties as to the appropriate costs order in light of these reasons and orders.

Orders

  1. [196]
    Accordingly, it is appropriate that the Court make orders that:
    1. (a)
      The Court pronounces for the full force and validity of the Will of the deceased dated 15 November 2021.
    2. (b)
      Subject to the formal requirements of the Registrar, Letters of Administration of the deceased’s estate with the Will dated 15 November 2021 be granted to the respondent.
  1. [197]
    Further, the Court directs that the parties file written submissions of no more than 3 pages in respect of costs within 7 days of today.

Footnotes

[1]T1.66, lines 20-30; T1.73, line 3-T1.74, line 5.

[2]Ms Saunders, Ms Burke and Ms Wolski.

[3]Trial Exhibit 2.

[4]Trial Exhibit 1, page 205.

[5]Trial Exhibit 1, page 52.

[6]Affidavit of J K Saunders, Court document 19, paragraph 9.

[7]Affidavit of J K Saunders, Court document 8, paragraph 5; affidavit of J K Saunders, Court document 19, paragraph 10.

[8]Affidavit of J K Saunders, Court document 29, paragraph 5.

[9]Affidavit of L R Sullivan, sworn 13 February 2023, Exhibit LS-22; Trial Exhibit 3.

[10]T1.59, line 30.

[11]Affidavit of V M Greig, Court document 9, Exhibit A; affidavit of V M Greig, Court document 21, paragraph 17, Exhibit VMG-1.

[12]T1.114, lines 40-44.

[13]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 13.

[14]Trial Exhibit 1, page 32.

[15]Affidavit of J K Saunders, Court document 8, paragraph 6; affidavit of J K Saunders, Court document 19, paragraphs 11 and 12.

[16]Affidavit of J K Saunders, Court document 29, paragraph 6.

[17]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 12.

[18]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 12.

[19]T1.91, lines 15-24.

[20]Affidavit of J K Saunders, Court document 8, paragraph 7.

[21]Affidavit of J K Saunders, Court document 29, paragraph 7.

[22]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 11.

[23]Affidavit of V M Greig, Court document 21, paragraph 20.

[24]T1.92, lines 29-44.

[25]Affidavit of V M Greig, Court document 9, page 2.

[26]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 7.

[27]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 16 and 17.

[28]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 29.

[29]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 41.

[30]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 51.

[31]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 70 and 71.

[32]Affidavit of V M Greig, Court document 9, page 2.

[33]Affidavit of J K Saunders, Court document 8, paragraphs 8, 9 and 10; affidavit of J K Saunders, Court document 19, paragraphs 15 and 16 and affidavit of J K Saunders, Court document 29, paragraph 8.

[34]Affidavit of J K Saunders, Court document 29, paragraph 8.

[35]Affidavit of J K Saunders, Court document 29, paragraph 9.

[36]Affidavit of J K Saunders, Court document 19, paragraph 17.

[37]Affidavit of V M Greig, Court document 9, page 2.

[38]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 74.

[39]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 74.

[40]T1.30, lines 34-41.

[41]Affidavit of J K Saunders, Court document 19, paragraph 18.

[42]Affidavit of J K Saunders, Court document 29, paragraph 11.

[43]Affidavit of J K Saunders, Court document 19, paragraphs 19 and 20.

[44]Affidavit of J K Saunders, Court document 29, paragraph 11.

[45]The note records that the deceased was “oriented” not “disoriented”, the latter being the applicant’s original interpretation of the notes. At the trial, the applicant conceded that she had misread the notes in this regard: T2.101 lines 5-15.

[46]Affidavit of J K Saunders, Court document 29, paragraph 13; affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 74 and 75.

[47]Affidavit of J K Saunders, Court document 29, paragraph 11.

[48]Affidavit of R C Burke, Court document 20, paragraph 5.

[49]Affidavit of J K Saunders, Court document 19, paragraph 22.

[50]Affidavit of R C Burke, Court document 20, paragraph 6.

[51]Affidavit of R C Burke, Court document 20, paragraph 7.

[52]Affidavit of J K Saunders, Court document 8, paragraph 11 and affidavit of J K Saunders, Court document 19, paragraphs 24 and 25.

[53]Affidavit of J K Saunders, Court document 19, paragraph 24 and affidavit of R C Burke, Court document 20, paragraph 8.

[54]Affidavit of R C Burke, Court document 20, paragraph 7.

[55]Affidavit of J K Saunders, Court document 19, paragraph 26.

[56]Affidavit of R C Burke, Court document 20, paragraph 9.

[57]Affidavit of J K Saunders, Court document 8, paragraph 12.

[58]Affidavit of J K Saunders, Court document 29, paragraph 13.

[59]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 75.

[60]Affidavit of V M Greig, Court document 9, page 2.

[61]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 55 and 57.

[62]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 61, 63 and 65. See also T1.31, line 4-T1.32, line 37.

[63]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 32.

[64]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 31.

[65]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 72.

[66]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 57.

[67]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 36.

[68]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 72, 73 and 76. The Acute Resuscitation Plan is at pages 3 to 6 of this exhibit.

[69]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 36.

[70]Affidavit of J K Saunders, Court document 19, paragraph 29; Affidavit of L R Sullivan, Court document 7, Exhibit LS-1 at page 76.

[71]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 77.

[72]Affidavit of J K Saunders, Court document 8, paragraphs 13 and 14.

[73]Affidavit of V M Greig, Court document 9, paragraph 24.

[74]Affidavit of V M Greig, Court document 9, pages 2-3 and Affidavit of V M Greig, Court document 21, paragraph 24.

[75]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 80; affidavit of J K Saunders, Court document 8, paragraph 13 and affidavit of J K Saunders, Court document 19, paragraphs 27 and 30.

[76]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 81.

[77]Affidavit of J K Saunders, Court document 19, paragraph 26 and affidavit of V M Greig, Court document 21, paragraph 26.

[78]Affidavit of L R Sullivan, Court document 3, Exhibit E.

[79]Affidavit of V M Greig, Court document 9, Exhibit C.

[80]Affidavit of V M Greig, Court document 9, Exhibit D.

[81]Affidavit of L R Sullivan, Court document 10, paragraphs 2-5.

[82]Williams v Public Trustee of New South Wales (No 2) [2007] NSWSC 974 at [60].

[83]Williams, Mortimer & Sunnucks: Executors, Administrators and Probate, 20 edn at [13]-[65].

[84]T2.102, line 35.

[85]T2.102, lines 43-44.

[86]T2.101, lines 6-14.

[87](1870) LR 5 QB 549.

[88]Affidavit of J D Daly, Court document 33, Exhibit JDD-3 and affidavit of K K D Do, Court document 34, Exhibit KKDD-2.

[89]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 24 to 36.

[90]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, pages 54 to 57.

[91]Affidavit of J K Saunders, Court document 29, paragraph 12.

[92]Affidavit of J K Saunders, Court document 29, paragraph 2.

[93]Affidavit of L R Sullivan, Court document 3, paragraph 10.

[94]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 11.

[95]Trial Exhibit 1, pages 20, 173 and 213.

[96]Affidavit of L R Sullivan, Court document 7, Exhibit LS-1, page 11.

[97]Affidavit of J K Saunders, Court document 19, paragraph 7.

[98]Exhibit MFI-C and T1.69, lines 20-40.

[99]Page 29 of Exhibit MFI-C and T1.69, line 46-T1.70, line 21; page 21 of Exhibit MFI-C and T1.67, line 20-T1.69, line 5.

[100]Affidavit of L R Sullivan, Court document 3, paragraph 10.

[101]Parker v Felgate (1883) 8 PD 171, pp 173-174 per Hannen P quoted by Dalton J (as her Honour then was) in Re Spencer at [61].

[102][2015] 2 Qd R 435.

[103]The evidence supports a conclusion that the deceased clearly had capacity in the period from September 2021 up to 13 December 2021 when the discussions about the deceased’s wishes occurred.

[104]Law of Succession, 2 ed, Dal Pont & Mackie at [2.1].

[105]Re Burstyner [2021] VSC 531 at [28] and Uniform Civil Procedure Rules (1999) Qld r 603(1)(c).

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Editorial Notes

  • Published Case Name:

    Sullivan v Greig

  • Shortened Case Name:

    Sullivan v Greig

  • MNC:

    [2023] QSC 97

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    10 May 2023

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QSC 9710 May 2023Orders made after trial pronouncing force and validity of will and granting letters of administration with will: Williams J.
Appeal Determined (QCA)[2023] QCA 24028 Nov 2023Appeal dismissed: Boddice JA (Flanagan JA and Martin SJA agreeing).

Appeal Status

Appeal Determined (QCA)

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