Kevin Greer (the testator), died on 1 July 2017, aged 80. He was survived by three children from his first marriage, Mark (the appellant), Lisa and Karyn, and two children from his second marriage, Stuart (the respondent) and Stephen.
On 15 May 2001, the testator and his second wife Marie made wills, leaving their estate to each other, and if either failed to survive the other, to their son Stuart (the first will). Marie died in 2015.
In February 2016, the testator transferred title of the marital home (Dunamis Court home) to the respondent and his wife for natural love and affection. The respondent’s wife gave up work to care for the testator. The respondent and his wife sold the Dunamis Court home in August 2016 and used the sale proceeds to purchase another house. Whilst the house was undergoing renovations, the testator started to deteriorate and needed Level 4 care which was provided by paid carers.
At the end of November 2016, the testator moved into the new house. By this time his cognitive and physical function had rapidly declined. In January 2017, a decision was made to put the testator into a respite care facility, initially for a two-week period, but the stay was ultimately extended against the testator’s wishes.
In February 2017, the testator’s estranged daughter Karyn visited the testator at the respite facility. Karyn gave evidence that the testator told her he no longer wanted the respondent to have his enduring power of attorney and that he wanted to change his will. The doctor at the respite facility refused to perform a capacity assessment.
On 2 March 2017, knowing no capacity assessment had been done, Karyn helped the testator make another will using a will kit (the second will). The intention of the second will was to revoke the first will, appoint the appellant as executor, and, save for a specific bequest of a car to Karyn’s husband, leave the entirety of the testator’s estate to the children of his first marriage in equal shares. The second will made no provision for the respondent or his family.
The nature and extent of the testator’s cognitive impairment, and its impact on his testamentary capacity was the central matter of controversy both at trial and on appeal.
At trial, two questions were set down for separate determination:1
- Whether the testator had testamentary capacity at the time of execution of the second will; and
- Whether the second will should be admitted to probate in solemn form.
On 18 December 2020, the primary judge found the testator did not have testamentary capacity at the time he executed the second will and made a declaration accordingly.
The appellant raised four grounds of appeal:
The first ground of appeal
The appellant submitted that the primary judge erred as to the test for testamentary capacity by relying upon evidence as to the general cognitive impairment of the testator rather than considering whether the testator had capacity to comprehend moral claims of potential beneficiaries (the third limb of Banks v Goodfellow).2
Referring to the classic test for testamentary capacity, the court noted that unsoundness of mind or deterioration in cognition does not necessarily disqualify a person from making a valid will. The focus must be on whether it affected the testator’s faculties at the time the will was executed. For example, a will may be signed during a “lucid interval”.3
The court held the primary judge “appreciated that establishing the existence of a relevant illness was not sufficient to establish incapacity, but rather the question was whether the illness so affected the testator’s faculties as to establish incapacity”.4 Her Honour correctly noted that perfect levels of mental balance and clarity were not required, the question being one of degree.
The first ground of appeal failed.
The second ground of appeal
The appellant argued that the primary judge’s factual finding as to lack of testamentary capacity was unsound because the judge did not seek to reconcile that finding with the text of the second will which was rational on its face and “demonstrates understanding and evaluation of the claims on the testator’s bounty”.5
The court found that, whilst the reasonableness of a testamentary disposition may have evidentiary effect, it cannot be regarded as determinative. “If a testator has testamentary capacity, his testamentary dispositions will be valid no matter how unreasonable they may appear to be” and “if a testator lacks testamentary capacity, his testamentary disposition will be invalid, even if it appears to be reasonable”.6
The second ground of appeal failed.
The third ground of appeal
Professor Byrne, an expert witness, reported that in his clinical opinion, the testator was unlikely to have had testamentary capacity at the date of signing the second will due to dementia.
The appellant alleged that the primary judge erred by accepting evidence dependent upon inadmissible parts of an expert’s report.
The court noted the principles in Makita (Aust) Pty Ltd v Sprowles  NSWCA 305 that expert opinion evidence is inadmissible unless:
- the facts on which the opinion is based are both identified by the expert and proved in evidence, and
- the expert states, in chief, the reasoning by which the conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert’s expertise.7
The court noted that the form of the expert’s report did not “on its face, permit a reader to be certain that he would have adhered to his opinion if the inadmissible material had been excluded.8 However the court stated that “to accept that argument would be to ignore the way in which the trial was actually conducted”.9
At trial, the primary judge conveyed to counsel that, if an objection was to be pressed on the basis of the inadequacy of explanation, she expected the expert witness would be given an opportunity to provide an explanation either in chief or in cross-examination.
However, counsel for the appellant did not press the objection at the stage of the trial when the expert would have been permitted to address the question by oral evidence, nor did counsel for the appellant challenge the expert’s opinions in cross-examination or suggest that he would not have maintained his opinions if the unproven material had been excluded.
Therefore, “given the absence of any cross-examination to suggest that Professor Byrne could not have formed his views without the unproved material the primary judge did not regard it as appropriate to regard that conclusion as open”.10 The court held the primary judge’s approach could not be regarded as attended with error.
The third ground of appeal failed.
The fourth ground of appeal
The fourth ground of appeal was that the primary judge made an error of law as to the meaning of the “rational on its face” standard as enunciated by the Court of Appeal in Frizzo v Frizzo.
The court found the primary judge did make an error of law reaching the conclusion about testamentary capacity by treating the appellant as if he had established a prima facie presumption of validity. However, this was an error which favoured the appellant.
The evidence at trial displaced any presumption of testamentary capacity so, unless the appellant (as proponent of the second will) had affirmatively established that the testator did have testamentary capacity, the primary judge was required to decide against its validity.11
The court held that the primary judge “wrongly regarded the respondent as having an onus to prove the testator did not have testamentary capacity”. However, in finding that the respondent had indeed discharged his onus of proving an absence of testamentary capacity, the trial judge’s conclusion that the appellant was not able to prove the existence of testamentary capacity could reasonably follow.
The court held that all four grounds of appeal failed. The appeal was dismissed.
Practical suggestions for practitioners
- If the proponent of a will establishes a presumption of validity, the onus on the responding party is to demonstrate that there was doubt as to testamentary capacity. The onus is not to prove that the testator lacked testamentary capacity at the date the propounded will was made. That onus then shifts to the proponent.
- All limbs of the Banks v Goodfellow test are required for a finding of testamentary capacity.
- When obtaining or reviewing an expert’s report check whether the facts relied upon are identified by the expert and proved in evidence. It is not unusual for another expert to be engaged to comment on the conclusions of the (first) expert’s report.
Judy Hayward is a Special Counsel and Practice Management Consultant in the QLS Ethics and Practice Centre, and a QLS Accredited Specialist in Succession Law. Meagan Liu is a Law Graduate in the QLS Ethics and Practice Centre.
1 Pursuant to Uniform Civil Procedure Rules 1999 (Qld) r483.
2 The four affirmative elements of testamentary capacity are enunciated in Banks v Goodfellow (1870) LR 5 QB 549, restated in Read v Carmody (1870) LR 5 QB 549 and applied more recently in Queensland in Frizzo v Frizzo (n4):
1. The testator must appreciate the significance of the act which he is about to embark upon.
2. The testator must be aware, of the nature, and extent, and value, of the estate over which he has a disposing power.
3. The testator must be aware of those who may reasonably be thought to have a claim upon his testamentary bounty,
and the basis for, and nature of, the claims of such persons.
4. The testator must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.
3 Greer v Greer (n1)  citing Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284.
4 Greer v Greer (n1) .
5 Ibid at .
6 Ibid citing King v Hudson  NSWSC 1013,  (Ward J).
7 Greer v Greer (n1) ,  citing Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
8 Greer v Greer (n1) .
10 Ibid .
11 Ibid  (Bond JA).