The applicant is the daughter of Janita Sullivan (the deceased ), who died on 16 November 2021. The deceased had lived on a small acreage property at South Nanango, purchased in 2019 (the property) in a shipping container, without electricity. Her only companions were a horse, some chickens and a cat. Due to COVID-19 border restrictions, the deceased and the respondent did not have physical contact after purchasing the property. They did, however, have daily telephone contact.
The deceased was diagnosed with lung cancer in about mid-2021, advising Valerie Greig (the respondent) of that diagnosis. She did not notify the applicant. Due to COVID-19 border restrictions, the deceased and the respondent did not have physical contact following the purchase. The deceased also told Julie Saunders (Saunders) of that diagnosis. Saunders had been the real estate agent involved with purchasing the property. They had become friends following that purchase.
On 13 November 2021, the deceased was admitted to hospital after suffering an ischemic stroke.
The Will
A will dated 15 November 2021 (the Will) appoints the respondent executor and the sole beneficiary of the deceased’s estate, valued at approximately $75,000. The estate’s principal asset was the property. The respondent has renounced the executorship of the Will.
The Will was in the form of a pro forma Will kit. The writing was completed by Saunders, naming the respondent as the sole executor and beneficiary of the deceased’s estate. A separate document contained instructions for caring for the deceased’s animals (animal instructions sheet). The deceased signed the animal instructions sheet and executed the Will in the hospital on the morning of 15 November 2021. Saunders and a friend of Saunders, Rae Burke (Burke), signed as witnesses.
The matter
In Sullivan v Greig [2023] QSC 97, the applicant challenged the Will on two bases:
- (a)the deceased’s signature on the Will is a forgery and
- (b)the deceased lacked testamentary capacity when executing the Will.
She was seeking an order that the Court grant her letters of administration on intestacy.
The applicant claimed that the Will was not signed by the deceased and was not rational on its face as there was no provision for her or explanation for that omission. Additionally, the deceased did not possess testamentary capacity on 15 November 2021, as she was
- suffering from metastatic cancer which had spread to her brain;
- had suffered a stroke on 13 November 2021;
- had a diagnosed lesion in the left frontal lobe in keeping with metastatic disease;
- had very subtle hypertension within the distal right M1 segment, which can create a lack of insight; was noted to be confused and not to have the capacity to consent to or refuse medical treatment;
- and had been prescribed significant pain medication
By way of defence, the respondent denied the Will was irrational because the deceased did not have a close relationship with the appellant, and the appellant was not a natural object of the deceased’s testamentary bounty. In contrast, the respondent was the deceased’s long-standing and supportive friend and was the natural object of the deceased’s testamentary bounty. Further, the deceased had testamentary capacity when executing the Will on the morning of 15 November 2021.
The respondent submitted that the Will was executed by the deceased, who had the necessary capacity at the time the Will was executed. Accordingly, the respondent counterclaims that the Court grant probate of the Will to her.
Primary decision
The trial judge found that concerning the contents of the hospital records of the deceased’s admission in the period from 13 to 15 November 2021, there was sufficient doubt about her capacity to require the respondent to prove the Will in solemn form.
The trial judge accepted the evidence of both Saunders and Burke that the deceased had signed the Will on 15 November 2021, in their presence, before each affixing their signature to the Will as witnesses.
The trial judge accepted Saunders’s evidence that Saunders prepared a separate sheet of paper with instructions for dealing with the deceased’s horse and cat and that the deceased affixed her signature to it before affixing her signature to the Will.
The trial judge also accepted that the Will had been handwritten by Saunders, based on instructions previously given by the deceased on several occasions, since her diagnosis of lung cancer and that before affixing her signature to the Will, Saunders had started to read the Will to the deceased, who interrupted Saunders saying, “[the respondent] is the executor and beneficiary”.
The trial judge found that notwithstanding the deceased’s medical conditions and the administration of pain medication, the deceased did have testamentary capacity at the time of execution of the Will. In support of that finding, the trial judge observed that:
- (a)the deceased had a rational reason to make a Will at that time, as she was aware her health was declining;
- (b)the deceased had two people to consider in making her Will: the applicant and the respondent;
- (c)the deceased had only a few assets;
- (d)the gift of the deceased’s estate to the respondent was rational, about their close friendship of approximately 36 years and the deceased’s strained relationship with the appellant;
- (e)the uncontradicted evidence of the respondent, Saunders and Burke, was that at the relevant time, the deceased knew and understood she was making a Will and knew what she was doing, with the deceased’s wishes as reflected in the Will being consistent with what she had expressed on several occasions previously to Saunders; and
- (f)that on the morning of 15 November 2021, the deceased could understand that a Will was being made, an ability to understand what her assets were, an ability to know whom she should consider making provision for in her Will and an ability to weigh and evaluate claims on her estate.
The trial judge found that whilst it may be
“open on the evidence that the deceased’s cognition was impaired to some extent at the specific times recorded in the medical notes, on all of the evidence the deceased had sufficient capacity at the time that the Will was executed to meet the requirements of the Banks v Goodfellows test and to make a valid will.”
Sullivan v Greig [2023] QSC 97 at 184
Accordingly, the respondent had proven the deceased’s testamentary capacity.
The trial judge further found that the deceased knew and approved of the contents of the Will. The document corresponded with the deceased’s repeatedly expressed intentions as to the disposition of her estate. Further, before signing the Will, the deceased repeated that she wanted the respondent to be her executor and beneficiary, and the deceased signed the Will after it had been read to her.
Finally, the trial judge found that even if the decision was wrong about the deceased having testamentary capacity on the morning of 15 November 2021, there was sufficient evidence to find that the deceased had a more limited capacity that morning of accepting that the document carried out and adequately expressed her previously stated intentions. The deceased confirmed those intentions by repeating those instructions when the Will was read to her immediately before she signed it.
The Appeal
In Sullivan v Greig [2023] QCA 240, the appellant relied on five grounds of appeal:
1. That the primary Judge erred in holding that at the time the deceased executed the Will, she had testamentary capacity when the evidence did not establish the deceased met the Banks v Goodfellow test;
2. That the primary Judge failed to give adequate weight to the medical evidence concerning capacity;
3. That the primary Judge erred in having relied on irrelevant evidence;
4. That the primary Judge erred in finding that the deceased knew and approved of the contents of the Will;
5. That the primary Judge erred in finding the respondents, Julie Saunders and Rae Burke, to be honest and reliable witnesses by failing to make a detailed and careful analysis of the evidence.”
The decision
In dismissing the appeal, the Court of Appeal found that the appellant had not established any grounds of appeal.
The primary Judge considered criteria from the Banks v Goodfellow case, and there was no misapplication.
The appellant argued that the Judge didn’t give enough weight to medical evidence, but the primary Judge’s findings were not deemed glaringly improbable.
The appellant also claimed reliance on irrelevant evidence, but the primary Judge based the decision on the credibility of key witnesses, not the extrinsic evidence.
The appellant contested the primary Judge’s finding that the deceased knew and approved of the Will’s contents, but the Judge considered Saunders’ consistent testimony about the deceased’s wishes.
The evidence from witnesses Saunders and Burke supported the conclusion that the deceased was alert and rational during the Will’s execution. Despite some inconsistencies in their recollections, the Judge deemed them honest and reliable. Medical records were considered but did not undermine the witnesses’ credibility.
Overall, the Judge’s conclusions were considered reasonable based on the totality of the evidence.
The trial judge’s findings and orders were consistent with the preponderance of evidence. The Court of Appeal ordered the appellant to pay the respondent’s costs of the appeal on a standard basis.