Court dismisses appeal in dispute over testamentary capacity

Mr Campbell was also survived by his three children: Tracy Rickertt, the appellant, and Stewart Campbell. Mr Campbell’s last will was made on 16 February 2016. Mrs Campbell was appointed the executor and trustee of the last will. Ms Rickertt was appointed the substitute executor and trustee. Mr Campbell gave each of his children $200,000. 

March 2022 trial

The appellant required Mrs Campbell to prove the last will in solemn form. It was conceded at the outset of the trial by Mrs Campbell that there was sufficient doubt about the testamentary capacity of Mr Campbell to require Mrs Campbell to prove the last will in solemn form.

Mr Campbell had first reported short term memory problems when he consulted his general practitioner in February 2013 and 2014.

He became a patient of general practitioner Dr Keith Smith in August 2015. He scored 18/30 on the standardised Mini-Mental State Examination (MMSE) and he scored 14/30 on a Montreal Cognitive Assessment (MOCA) which indicated moderate cognitive impairment.

Dr Smith conducted another MOCA on 3 September 2015 on which Mr Campbell scored 12/30 and referred Mr Campbell to neurologist Dr Tho, describing Mr Campbell as having presented “with tapered cognitive decline for the past 5-6 years”.

On 29 October 2015 Dr Tho reported to Dr Smith that he agreed that Mr Campbell “most probably has mild cognitive impairment” and organised for “MRI brain with SPECT scan”. As Mr Campbell had sleep problems, Dr Tho also organised a sleep study.

Radiologist Dr Daunt reported on 8 January 2016 on the brain MRI of Mr Campbell that no specific abnormality was seen. Another radiologist, Dr Gribbin, reported on 14 January 2016 on a cerebral PET and CT head scan of Mr Campbell. Dr Gribbin summarised his observations as significantly reduced metabolism in the temporal lobes that was more pronounced on the right with hypometabolism extending into the parietal and frontal cortex which he stated was “a mixed pattern, but more suggestive of frontotemporal dementia”.

Based on this scan, Dr Tho reported to Dr Smith on 15 January 2016 that it was important to exclude sleep apnoea which could also give rise to a similar pattern that was reported on by Dr Gribbin. Dr Smith conducted another MMSE on 3 February 2016 on which Mr Campbell scored 16/30. After the sleep study, Dr Tho reported on 12 February 2016 to Mr Smith that Mr Campbell had severe obstructive sleep apnoea (OSA).

Mr Campbell was reviewed by Dr Tho six months later on 12 August 2016 and he reported to Dr Smith that Mr Campbell could not tolerate the CPAP machine but had been using Sleep Advance and felt better with more alertness and less fatigue, but his short term memory had not improved.

Dr Tho did not consider at that stage that Mr Campbell had frontotemporal dementia, as Mrs Campbell had not reported any emotional disturbance in Mr Campbell.

On 8 February 2017, radiologists Dr Webb and Dr Clarke reported on a PET scan of Mr Campbell’s brain and its comparison to the PET scan conducted on 14 January 2016, noting there was more marked temporal lobe hypometabolism, asymmetric and most pronounced affecting the right temporal lobe, and there was also asymmetric parietal lobe hypometabolism which was greater on the right than the left and mild frontal lobe hypometabolism.

They concluded that 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. As a result, Dr Tho reported to Dr Smith on 24 February 2017 that “there is global atrophy, with perfusion scan more in keeping with Alzheimer’s type dementia”.

Dr Smith provided Mrs Campbell with a general reference on 13 December 2017 that described Mr Campbell’s medical conditions as severe sleep apnoea and Alzheimer’s dementia. When an MMSE was carried out on Mr Campbell on 19 January 2018, he scored 8/30.

Mrs Campbell’s solicitors wrote to Dr Smith on 14 December 2018 to obtain Mr Campbell’s records or medical history that were pertinent to Mr Campbell’s testamentary capacity in February 2016.

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.” On 24 May 2019 Dr Smith advised:

“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.”

Tho advised Mrs Campbell’s solicitors on 24 May 2019:

“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.”

The evidence in the initial trial was mostly by affidavit. Mrs Campbell gave evidence and called Mr Speakman, who was Mr Campbell’s solicitor and Ms Pryce who was Mr Campbell’s financial planner between 2013 and 2019.

Mrs Campbell’s solicitors provided a bundle of documents to psychiatrist Professor Gerard Byrne to obtain an expert opinion on whether Mr Campbell had testamentary capacity at the time of making the last will.

Mr Speakman’s file memo dated 5 February 2016 recorded that Mrs Campbell was to be the attorney under the new EPoA for both financial and health matters to commence immediately.

The primary judge recorded the questions that Mr Speakman asked Mr Campbell to ascertain his awareness of time and of his personal details and the details of Mrs Campbell.

Mr Speakman was satisfied that Mr Campbell understood the EPoA and was fully aware of what he was doing in making the last will and that he was aware of his children and their children and what would happen if one of his children did not survive him.

Mr Speakman recorded that he was satisfied that Mr Campbell fully understood the nature of his will and his wishes were appropriately outlined in the will.

Ms Pryce met with Mr and Mrs Campbell in September 2016 after they provided her with copies of their new wills and EPoA in August 2016. She took instructions for changes in investments, so that the provisions made in the last will could be fulfilled.

Mr Campbell deposited $600,000 into a new pension fund on 11 November 2016. On 7 March 2017, Mr Campbell signed a form that nominated his legal personal representative as the beneficiary of 100 per cent of his benefit from that pension fund in the event of his death.

Ms Pryce had further meetings with Mr Campbell and noted a real decline in him by 28 May 2018, when he was distracted and repeating himself.

The appellant was unsuccessful at trial. In March 2022, the primary judge pronounced in solemn form of law that the last will was valid and that probate of the will be granted to Mrs Campbell.

She appealed against the orders made by the primary judge on four grounds.

Appeal

The appellant submitted that the primary judge had erred in failing to approach the evidence with appropriate discernment thereby resulting in a miscarriage of justice.

She also contended that the primary judge erred in law and in fact by failing to apply the principles of Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 relevant to solicitors’ taking instructions. She also claimed that the judge had failed to apply the principles of Ryan relevant to whether a testator had testamentary capacity.

Ryan is an application of the classic statement in Banks v Goodfellow (1870) LR 5 QB 549 as to what is required to prove that a testator had testamentary capacity either at the time of giving instructions or at the time of the execution of the relevant will.

In Ryan, the medical and family evidence pointed to the conclusion the testator did not have testamentary capacity, but Justice Kunc had to balance that against the evidence of the solicitor who took instructions from the testator, prepared the will, was present at the execution of the will and considered the testator did have capacity.

Despite the solicitor’s evidence, Justice Kunc concluded in Ryan that there was a substantial doubt that the testator did not have testamentary capacity on the date he executed the will. It emerged in the solicitor’s evidence that at the time she took the instructions for, and explained and witnessed the execution of, the will:

• She was not aware of The Law Society of New South Wales’ guidelines concerning clients whose testamentary capacity was in doubt
• She was not aware the testator had dementia
• In taking instructions she did not ask open-ended questions
• When she attended on the testator at the hostel for the testator to sign the will, she did not ask the care manager about whether there were any concerns about the testator’s mental state. 

In her decision, Justice Mullins said that the reference to Ryan should more properly be a reference to the leading authority of Banks v Goodfellow.

Despite the assertion in ground 3 that the primary judge erred in law in failing to apply the principles of Banks v Goodfellow, Justice Mullins noted that the thrust of the appellant’s submissions on the appeal was to attack the primary judge’s conclusions on the facts and the application of settled law to those facts rather than asserting specific errors of law by the primary judge. 

There was no challenge to the statement of legal principles set out by the primary judge, she stated.

The appellant’s submissions on the appeal also focused on specific entries in Mr Campbell’s medical records, such as Dr Tho’s opinion given on 24 May 2019 that Mr Campbell “may not have had” testamentary capacity when he made the last will.

“None of the entries that was in evidence was overlooked by the primary judge in setting out in the reasons the summary of the medical records. It is apparent from the primary judge’s detailed and careful analysis of the evidence, that the specific entries on which the appellant relies were considered in conjunction with all the evidence accepted by the primary judge about Mr Campbell’s general functioning and specific understanding of the task and significance of making the last will around the time of making the last will,” explained Justice Mullins.

“None of the entries was in the category that would show the primary judge’s findings of fact were contrary to ‘incontrovertible facts or uncontested testimony”, ‘glaringly improbable’ or ‘contrary to compelling inferences’.”

Justice Mullins also stated that the issue of testamentary capacity “is not determined on the basis of one aspect of the medical evidence, but by a consideration of all relevant evidence accepted by the primary judge”.

The appeal was dismissed with the appellant ordered to pay the respondent’s costs.