Campbell v Campbell [2023] QCA 3

SUPREME COURT OF QUEENSLAND CITATION: Campbell v Campbell [2023] QCA 3 PARTIES: DANIELLE JO CAMPBELL (appellant) v ROSWITA GRETEL CAMPBELL AS EXECUTOR OF THE WILL OF GRAHAM ALEXANDER CAMPBELL, DECEASED (respondent) FILE NO/S: Appeal No 4551 of 2022 SC No 3640 of 2020 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 34 (Bradley J) DELIVERED ON: 12 January 2023 DELIVERED AT: Brisbane HEARING DATE: 7 September 2022 JUDGES: Mullins P, Morrison JA and Williams J ORDERS: 1. Application for leave to adduce further evidence refused. 2. Appeal dismissed. 3. The appellant must pay the respondent’s costs of the application and the appeal to be assessed. CATCHWORDS: SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the appellant is one of the deceased’s daughters and required the deceased’s widow to prove the last will in solemn form – where there were prior wills – where the issue at trial was whether the deceased had testamentary capacity when he made the last will and, in particular, whether his dementia precluded proof of testamentary capacity – where the appellant was unsuccessful at trial – where the appellant’s submissions focused on facts rather than asserting specific errors of law, and specific entries in the deceased’s medical records – where the specific entries relied upon by the appellant were considered by the primary judge – where the fact the deceased was suffering from mild cognitive impairment or mild dementia at the time he made the last will did not preclude his widow from satisfying the primary judge affirmatively that the deceased had testamentary capacity when he made the last will -- 1 of 14 -- 2 – whether the primary judge erred in law and in fact in applying the test in Banks v Goodfellow (1870) LR 5 QB 549 to the question of whether the deceased had testamentary capacity SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – GENERALLY – where the appellant is one of the deceased’s daughters and required the deceased’s widow to prove the last will in solemn form – where there were prior wills – where the issue at trial was whether the deceased had testamentary capacity when he made the last will and, in particular, whether his dementia precluded proof of testamentary capacity – where the appellant was unsuccessful at trial – where the widow’s solicitors engaged a psychiatrist to provide an expert opinion on whether the deceased had testamentary capacity at the time of making the last will – where the appellant seeks to dispute the psychiatrist’s conclusions on appeal by reference to matters on which she did not cross-examine him – whether there were deficiencies in Professor Byrne’s evidence – whether the primary judge erred in relying on Professor Byrne’s opinion in light of the other evidence adduced at the trial Uniform Civil Procedure Rules 1999 (Qld), r 686, r 687 Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21, cited Banks v Goodfellow (1870) LR 5 QB 549; [1870] UKLawRpKQB 74, considered Frizzo v Frizzo [2011] QCA 308, cited Greer v Greer [2021] QCA 143, cited Perera v Perera [1901] AC 354; [1901] UKLawRpAC 11, cited Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28, cited Ryan v Dalton; Estate of Ryan [2017] NSWSC 100, cited COUNSEL: The appellant appeared on her own behalf J K Meredith for the respondent SOLICITORS: The appellant appeared on her own behalf Wheldon & Associates for the respondent [1] MULLINS P: The appellant, Ms Danielle Campbell, is one of the daughters of the deceased Mr Graham Campbell who died on 24 December 2019 at age 68 years. Mr Campbell was survived by his third wife, the respondent Mrs Rosita Campbell, whom he married on 17 October 2015. His cause of death was a heart attack. His death certificate also noted that he had advanced vascular dementia (which was probably not the form of dementia that afflicted him leading up to his death). [2] Mr Campbell was also survived by his three children, Ms Tracy Rickertt, the appellant and Mr Stewart Graham Campbell (to whom I will refer as “Stewart” to distinguish him from his father). -- 2 of 14 -- 3 [3] Mr Campbell’s last will was made on 16 February 2016 (the last will). 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, but if the child failed to survive Mr Campbell leaving surviving children of their own who attain the age of 25 years, then that child’s share was given to any children of that child. The residue of the estate was given to Mrs Campbell and, if she failed to survive Mr Campbell, the residue was given to Mr Campbell’s children as tenants in common in equal shares. The last will also contained an express statement that Mr Campbell had deliberately made no provision for his former wife Joan given their divorce and property settlement. [4] 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. The issue at trial was whether Mr Campbell had testamentary capacity when he made the last will and, in particular, whether his dementia precluded proof of testamentary capacity. The appellant was unsuccessful at the trial. The learned primary judge on 23 March 2022 pronounced in solemn form of law for the full force and validity of the last will and, subject to the formal requirements of the Registrar and any outstanding compliance with the requirements of the Uniform Civil Procedure Rules 1999 (Qld), probate of the will (in common form) be granted to Mrs Campbell: Campbell v Campbell [2022] QSC 34 (the reasons). Mrs Campbell’s costs of the proceeding were ordered to be paid out of the estate on an indemnity basis. [5] The appellant appeared on her own behalf before the primary judge and is also appearing for herself on this appeal. She appeals against the orders made by the primary judge on four grounds set out in the amended notice of appeal: 1. whether the primary judge erred in failing to approach the evidence with appropriate discernment, thereby resulting in a miscarriage of justice; 2. whether 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; 3. whether the primary judge erred in law and in fact by failing to apply the principles of Ryan relevant to whether a testator had testamentary capacity; and 4. whether the primary judge relied upon Professor Byrne’s expert opinion which would likely affect the primary judge’s discretion, findings and the rules of natural justice. [6] 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 Kunc J 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, Kunc J 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 (at [63] of Ryan) that at the -- 3 of 14 -- 4 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 and, 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. As a postscript to the judgment in Ryan, Kunc J set out in [107] a guide for a solicitor in taking instructions from a client where, by reason of age or circumstances, there might be a concern about capacity. The evidence of Mr Campbell’s solicitor, Mr Speakman, was not given for the purpose of scrutinising whether Mr Speakman acted in accordance with best practice for a solicitor’s taking instructions for a will, but for the purpose of addressing the issue of whether Mr Campbell had testamentary capacity at the time. To the extent that ground 2 is based on Kunc J’s guidance for solicitors, that is not a proper ground of appeal in respect of the evidence adduced before the primary judge in this matter. When this was pointed out to the appellant during the hearing of the appeal, she did not press ground 2. [7] The appellant applies for leave to adduce further evidence on the hearing of the appeal which is supported by the appellant’s affidavit sworn on 22 August 2022. The appellant had prepared a bundle of documents before the trial which she referred to as the defence trial bundle which the appellant believed from her communications with Mrs Campbell’s lawyers had been included in the trial bundle. The appellant did not discover the omission of some of these documents from the trial bundle until after the trial and now seeks this Court to receive those documents as evidence relevant to the grounds of appeal. Background facts [8] The following summary of uncontested background facts is taken from [21]-[56] of the reasons. [9] Mr Campbell had married Janice in about 1970. Janice is the mother of Ms Rickertt born in about 1971, the appellant born in 1981 and Stewart born in about 1988. Mr Campbell and Janice separated in February 1996 and later divorced. Mr Campbell had begun dating Joan in 1993 when he was 42 years old and Joan was about 34 years. She was divorced with four children. In 1996 Mr Campbell went to live with Joan for a short period and then he moved to his own flat in Tingalpa. Joan bought a home at Capalaba after 1997 and Mr Campbell went to live in a small post- war house (described as the shack in [28] of the reasons) on a property at Chandler that was a short drive from Joan’s home at Capalaba. The Chandler property may have been purchased in the names of Mr Campbell and Joan and later transferred into Mr Campbell’s name. Mr Campbell and Joan became engaged in 2000 and on 26 July 2008 they married during a party at the shack. Mr Campbell and Joan had signed a pre-nuptial agreement on 24 July 2008 that listed their respective assets with values. Mr Campbell’s assets included real property, a bank investment account and superannuation funds. [10] Mr Campbell made a will on 5 September 2008 in which he made a specific bequest of $50,000 to one of his sisters (the sister) and gave Joan the right to reside in any home in which he normally resided for 12 months after his death with a right to purchase it at market value at the end of that time. The residue of his estate was left -- 4 of 14 -- 5 to such of Joan and his three children who survived him for 30 days in equal shares. The three children were appointed as executors and trustees. [11] Graham and Joan had no children together and lived separately for most of their relationship with Joan spending a few days a week with Mr Campbell at the shack and the balance at her Capalaba home. There was some dispute about when they finally separated, but their divorce was made final on 26 September 2015. There was a matrimonial property dispute between them in the Federal Circuit Court involving a challenge by Joan to the pre-nuptial agreement. [12] Mr Campbell had met Mrs Campbell through his close friend Mr Congram. Mrs Campbell had married Mr Congram in about 1997. Mr Campbell and Joan had a close social relationship with Mr Congram and Mrs Campbell. Mr Congram died in November 2013 from a disease first diagnosed in 2010. Mr Campbell had been visiting Mr Congram and Mrs Campbell while Mr Congram was ill and, after Mr Congram’s death, Mr Campbell maintained his contact with Mrs Campbell and they began a relationship in August 2014. Mrs Campbell came to live with Mr Campbell in October 2014. They became engaged at Christmas 2014. [13] On 28 January 2015, Mr and Mrs Campbell visited the solicitor Mr Speakman who was acting for Mr Campbell in his matrimonial dispute with Joan. Mr Campbell gave instructions to Mr Speakman for a new will which kept the bequest of $50,000 to the sister and divided the residue among his three children and, if any child did not survive Mr Campbell, their share was to go to any surviving grandchildren at age 21 years. On 9 February 2015, Mr Campbell returned to Mr Speakman’s office and executed the 2015 will in those terms and also signed an enduring power of attorney (EPA) that appointed his brother Mr Kevin Campbell (to whom I will refer as “Kevin”) and the sister as his attorneys for both financial and personal or health matters. [14] On 27 August 2015, Mr and Mrs Campbell signed a pre-nuptial agreement in anticipation of marriage before they married on 17 October 2015. [15] From 1994 Mr Campbell had worked as a tip-truck owner/driver for the Brisbane City Council. From 1998 Mr Campbell’s company hired a tip-truck to the Council and the Council employed Mr Campbell as a truck driver. On 7 December 2015, Mr Campbell met with the Council’s fleet services operations coordinator who discussed with Mr Campbell a report that Mr Campbell had become lost and had to contact other drivers and supervisors for assistance and there were other instances of forgetfulness on Mr Campbell’s part. Mr Campbell was told that the situation would be monitored. Work was still allocated to him. The coordinator met with Mr Campbell again on 15 December 2015, as a report of “potentially unsafe behaviour” had been received from the quarry. Mr Campbell was informed that no more shifts would be allocated to him until he provided a medical clearance. The quarry was closed over the Christmas break and on 8 January 2016 Mr Campbell applied for long service leave which was approved until 1 July 2016. Mr Campbell retired with effect from 19 July 2016. [16] On 27 January 2016, Mr Campbell swore an affidavit for the property dispute with Joan, relevant parts of which are set out at [55] of the reasons. Mr Campbell referred to being recently diagnosed with a medical condition following an increased loss of memory and a report that indicated a change within his brain suggesting a condition -- 5 of 14 -- 6 of frontotemporal dementia and noted that he found it “increasingly more difficult to generally remember things as well as thinking clearly”. Mr Campbell and Joan resolved their property dispute on 3 February 2016. The trial [17] The evidence in chief of most of the witnesses was by affidavit. Mrs Campbell gave evidence and called Mr Speakman and Ms Pryce who was Mr Campbell’s financial planner between 2013 and 2019. There was a trial bundle of documents tendered by consent at the trial which was exhibit 1. Exhibit 1 included the bundle of documents which Mrs Campbell’s solicitors had provided 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 and Professor Byrne’s report dated 19 April 2021 (the expert report). Professor Byrne gave evidence in chief at the trial and was cross- examined by the appellant. The appellant did not give evidence but called Kevin as a witness. [18] The primary judge concluded (at [57]-[58] of the reasons) that the timing of the last will was most likely related to Mr Campbell’s marriage to Mrs Campbell and the finalisation of the property settlement with Joan on 3 February 2016. Mr Speakman gave evidence of the taking of the instructions for the last will and its execution. The primary judge set out the summary of that evidence at [59]-[71] of the reasons which included the following. The instructions for the last will and the new EPA were given on 5 February 2016. (Mr Speakman’s file memo dated 5 February 2016 recorded that Mrs Campbell was to be the attorney under the new EPA for both financial and health matters to commence immediately.) The draft documents were sent to Mr Campbell on 11 February 2016 and Mr and Mrs Campbell attended on Mr Speakman on 16 February 2016. 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 EPA 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. Mr Speakman was aware of Dr Gribbin’s report dated 14 January 2016 and that he did not have a report from Dr Tho, but he stated that he would not have proceeded, if he had any doubts whatsoever that Mr Campbell did not understand the effects and the meaning of what he was doing. [19] The primary judge referred to relevant events after the last will was made at [72]-[77] of the reasons. Relevantly, on 30 May 2016 Mr Speakman saw Mr and Mrs Campbell again and Mr Campbell gave instructions that he wanted to change his EPA and make Kevin an additional attorney, if Mrs Campbell were unable to act. Mr Speakman prepared a new EPA which Mr Campbell executed on 30 May 2016. Mr Speakman gave evidence that he was satisfied that Mr Campbell was aware of what he was doing by changing the EPA. There was subsequently an investigation by the Office of the Public Guardian which found there was “conflicting medical evidence” about Mr Campbell’s decision-making capacity on 30 May 2016 when he executed the EPA. [20] The primary judge summarised Kevin’s evidence at [78]-[96] of the reasons. Kevin had some specific recollections that showed Mr Campbell’s memory problems. They -- 6 of 14 -- 7 included the following. In a conversation between Kevin and Mr Campbell which the primary judge found (at [85]) must have occurred between August 2014 and October 2015, Mr Campbell asked Kevin whether he had been married to Joan. The primary judge observed (at [86]) that Mr Campbell’s uncertainty seemed less significant than might ordinarily be the case, because Mr Campbell’s marriage to Joan took place after they had been in a relationship for about 15 years. The second incident described at [88]-[91] was that Mr Campbell had trouble reciting his personal vows at his wedding to Mrs Campbell, when there was other evidence that he did not have his reading glasses. Another recollection (set out at [92]) was Mr Campbell’s informing Kevin in 2015 about the problems that he was having at work (that was consistent with other evidence on that topic). [21] Ms Pryce was a financial adviser to Kevin and she met Mr Campbell in June 2013. Mr Campbell acted on Ms Pryce’s recommendations in August 2013. He had three meetings with her in 2014 planning his retirement. Mr and Mrs Campbell met with Ms Pryce in November 2015 for an annual review of their financial position. When they next met on 18 August 2016, Mr and Mrs Campbell gave Mr Pryce copies of their new wills and new EPAs. On 16 September 2016 Ms Pryce met with Mr and Mrs Campbell to take 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. [22] The primary judge summarised Mrs Campbell’s evidence at [115]-[126] of the reasons and identified which parts of her evidence was of assistance. That included (at [120]) Mrs Campbell’s evidence that Mr Campbell’s sleep apnoea appeared to become more severe in or around late 2015. On 23 July 2018 Mrs Campbell engaged Anglicare to assist with caring for Mr Campbell. The primary judge preferred (at [126]) the contemporaneous reports of Mr Campbell’s treating medical practitioners as to Mr Campbell’s condition, rather than Mrs Campbell’s general description of Mr Campbell’s behaviour over that period. [23] None of the treating doctors was called to give evidence and both parties relied on the notes, letters and reports in exhibit 1. The primary judge summarised the medical records at [127]-[169] of the reasons. The most relevant medical evidence was that which assisted in determining whether Mr Campbell had testamentary capacity when he made the last will. 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: Perera v Perera [1901] AC 354 at 361 and Bailey v Bailey (1924) 34 CLR 558 at 572. The evidence in this matter shows there was no significant difference in Mr Campbell’s mental condition between 5 and 16 February 2016. The most relevant medical evidence in relation to Mr Campbell was that which was relatively contemporaneous with the making of the last will and subsequent medical records that assisted in clarifying Mr Campbell’s mental condition when he made the last will. The summary from the primary judge’s reasons set out below has been selected with that focus. -- 7 of 14 -- 8 [24] Mr Campbell had reported short term memory problems when he consulted his general practitioner in February 2013 and 2014. He also reported in February 2014 that he had poor sleep, tended to depression and had some anxiety. Mr Campbell became a patient of general practitioner Dr Keith Smith at Regents Park on 17 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” and having a long term anxious personality. 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. [25] 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). [26] 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 for Mr Campbell. [27] 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. [28] 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 -- 8 of 14 -- 9 “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.” [29] Dr 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.” [30] The expert report identified the documents reviewed by Professor Byrne which included the pleadings, the last will, some of the medical records that were in exhibit 1 and the affidavits of Mr Speakman, Ms Pryce and Mrs Campbell. [31] Professor Byrne expressed opinions in the expert report as follows. It was more likely than not that Mr Campbell understood the nature and effect of making and signing the last will. This was on the basis of the detailed file notes of Mr Speakman, Mr Campbell’s longstanding familiarity with legal documents and the last will was “a straightforward document”. Mild cognitive impairment or mild dementia does not usually deprive a person of an understanding of the nature and significance of a will. It was unclear from the material reviewed by Professor Byrne whether Mr Campbell had a detailed appreciation of his asset classes and their contents, but Professor Byrne inferred from the last will that Mr Campbell understood he had substantial assets, as he left $200,000 to each of his three children. As Mr Campbell’s mild cognitive impairment or dementia at that stage was reported to have particularly affected his memory, he may not have had an accurate idea of the current value of his assets, but he still knew they were substantial. The provisions of the last will indicated that Mr Campbell was aware of those (namely his three children and his current wife) who may reasonably have had a claim on his estate. In addition, Mr Campbell had no difficulty identifying his children and his grandchildren and recalled the property settlement with Joan. As the last will stated that the former wife was to receive nothing, his three children were to receive $200,000 each and his current wife was to receive the residue, that indicated Mr Campbell could judge the relative merits of the claims of these three classes of potential beneficiaries. It did not appear that Mr Campbell was suffering from delusional beliefs and did not appear to be subject to undue influence. It was more likely than not that Mr Campbell retained testamentary capacity on 16 February 2016, despite the presence of mild cognitive impairment or mild dementia. [32] In his oral evidence in chief, Professor Byrne provided the following comments on the report of Dr Gribbin dated 14 January 2016. “So this is – this is actually a PET scan; the CT scan is to register the PET images to the right position inside the skull, and so the PET scan relates to cerebral blood flow and the use of oxygen, actually, by the brain tissues. So this is not a diagnostic tool for dementia or cognitive impairment; it’s a method of trying to narrow down what the cause of any clinically-diagnosed cognitive impairment or dementia might be. So it’s a search for the cause.” -- 9 of 14 -- 10 [33] Professor Byrne explained further that the search for the cause of the dementia or cognitive impairment does not indicate the clinical state of the patient. He also explained that reports like the one from Dr Gribbin “have a confirmation bias” in that they try to give the referring doctor what they ask for, or say something in relation to it, rather than being completely objective about the visual impression of the images. Professor Byrne explained further as follows. The diagnosis of frontotemporal dementia is based on a clinical diagnosis and not the imaging findings from the brain. The imaging findings are often used to augment or support the clinical diagnosis, but the diagnosis is primarily a clinical one. Frontotemporal dementia accounts for about half the cases of dementia occurring before 65 years. [34] The appellant cross-examined Professor Byrne without having obtained an expert report expressing any contrary opinions to Professor Byrne’s opinions. The appellant sought clarification of the statement in Dr Gribbin’s report that there was “significantly reduced FDG activity within the temporal lobes”. Professor Byrne explained that FDG activity “can be interpreted to mean the uptake of oxygen in the brain”. [35] The appellant ascertained from Professor Byrne that he did not receive the 2008 and 2015 wills of Mr Campbell and he may not have received the MMSE document dated 17 August 2015, but he was provided with the score of 18/30. On this appeal, the appellant sought to challenge Professor Byrne’s opinion, because he did not receive Mr Campbell’s 2008 and 2015 wills. That was not a course open to the appellant. If the appellant had wished to undermine Professor Byrne’s opinion, she should have shown Professor Byrne the 2008 and 2015 wills and questioned him about any significance in the change in gifts effected by the last will compared to the gifts under the earlier wills. The reasons [36] The primary judge set out relevant findings at [185]-[201] of the reasons. The primary judge accepted (at [185]) Professor Byrne’s opinion that Mr Campbell had either mild cognitive impairment or mild dementia when he gave instructions for, and signed, the last will. The primary judge also accepted (at [186]) Professor Byrne’s opinion that a person with a degree of cognitive impairment is likely to have been able to make a will in the form that Mr Campbell made on 16 February 2016. The primary judge took into account (at [187]) that the last will was “straightforward in format and content” and (at [188]) that the solicitor who prepared it was aware of Mr Campbell’s short-term memory issues and had observed Mr Campbell to be aware of, and to understand, that he was proposing to make a will. The primary judge noted (at [190]) that Mr Campbell’s assets were not very complex and (at [191]) that Mr Campbell was aware of his children, his grandchildren, his wife and his former wife, their possible claims on his estate and the dispositions he proposed to make, or not to make, to them. [37] The primary judge considered (at [194] of the reasons) that, as represented in the last will, Mr Campbell’s judgment appeared rational. The primary judge noted (at [196]) that there was little evidence of regular contact between Mr Campbell and his children over the period between his separation from Joan and the signing of the last will and, (at [198]) apart from Mrs Campbell, Mr Campbell’s only regular family contact was with his siblings and their spouses. The primary judge found (at [198]) that the absence of the bequest to the sister in the last will, when she had been named in the two earlier wills was not irrational. Importantly, the primary judge observed (at [199]) that the evidence to early 2016 was of a decline in Mr Campbell’s short- -- 10 of 14 -- 11 term memory and there was no evidence of lower performance on any other cognitive domain or any significant impairment of his social functioning by February 2016 or before January 2017. The primary judge noted (at [200]) that the steps that Mr Campbell took to make provision for some of his superannuation to be paid into his estate, so that the bequests to his children could be met, showed his understanding of the different classes of assets he held. [38] The primary judge set out his conclusions at [202]-[206] of the reasons. On the basis of all the evidence and giving weight to the more precise recollections of Mr Speakman and Ms Pryce, the primary judge concluded (at [206]) that the deterioration of Mr Campbell’s cognitive function was material by about July 2017. In doing so, the primary judge accepted (at [206]) Professor Byrne’s opinion that it is not appropriate to treat radiological reports as diagnostic tools for cognitive impairment or dementia. Ultimately the primary judge was satisfied of the matters set out at [211] of the reasons that allowed for the conclusion that the last will accurately reflected Mr Campbell’s intentions formed at a time when he could make fully informed decisions. Those matters were as follows. When Mr Campbell gave his instructions for the last will and executed it, he was aware and appreciated the significance of making the last will and aware, at least in general terms, of the nature, extent and value of his estate and that those assets were of substantial value. Mr Campbell was also aware of those who might reasonably be thought to have a claim on his estate and the basis for, and the nature of, their different claims and he was able to evaluate the strengths of the respective claims and discriminate between them. Application to adduce further evidence [39] To the extent the appellant seeks to adduce documents that were already in evidence before the primary judge, the application is unnecessary. In respect of the balance of the documents which the appellant now seeks to adduce by way of further evidence, she faces insurmountable difficulties, when she had the opportunity either to pursue her request for the documents to be included in the trial bundle which became exhibit 1 or to use the documents for the purpose of cross-examination of Professor Byrne at the trial and failed to do so. It is unfortunate that the appellant was under the misapprehension that before the trial she could request Professor Byrne to do a supplementary report based on her compilation of documents set out in her letter dated 27 September 2021 to Professor Byrne. Some of the documents which the appellant provided to Professor Byrne were the appellant’s review of the expert report, the defence’s updated chronology and the defence’s medical summary 1998- 2019. Professor Byrne did not respond to this letter. As the cross-examination by the appellant of Professor Byrne at the trial shows, the appellant did not cross-examine Professor Byrne in any detailed way to pursue those aspects of Mr Campbell’s history which she considered Professor Byrne had failed to take into account sufficiently in reaching his opinion. [40] The appellant therefore cannot succeed on this application for leave to adduce further evidence of documents that were available to her at the trial and which she did not seek to use at the trial. Grounds 1 and 3 [41] The reference to Ryan in ground 1 should more properly be a reference to the leading authority of Banks v Goodfellow. Grounds 1 and 3 can therefore be dealt with -- 11 of 14 -- 12 together in terms of whether the primary judge erred in law and in fact in applying the test in Banks v Goodfellow to the question of whether Mr Campbell had testamentary capacity. [42] Despite the assertion in ground 3 that the primary judge erred in law in failing to apply the principles of Banks v Goodfellow, 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 at [6]-[13] of the reasons. It is therefore not necessary to restate them for the purpose of disposing of grounds 1 and 3 other than to emphasise that the fact that Mr Campbell was suffering from mild cognitive impairment or mild dementia at the time he made the last will did not preclude Mrs Campbell from satisfying the primary judge affirmatively that Mr Campbell had testamentary capacity when he made the last will: Frizzo v Frizzo [2011] QCA 308 at [24] and Greer v Greer [2021] QCA 143 at [48]. [43] The appellant’s submissions on the appeal 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. 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”: Queensland v Masson (2020) 94 ALJR 785 at [119]. [44] Unless the appellant can succeed on ground 4, she has not shown any basis for succeeding in the appeal on grounds 1 and 3. Ground 4 [45] The appellant’s submissions on the appeal focused on asserted deficiencies in Professor Byrne’s evidence and ground 4 raises the question whether the primary judge erred on relying in Professor Byrne’s opinion in light of the other evidence adduced at the trial. [46] The appellant submits that Professor Byrne had not been as helpful before the primary judge as he had been in the cases of Frizzo, Greer, and Rowe v Sudholz [2019] QSC 306, and that he had not given evidence in those cases to the effect that a radiologist’s report may suffer from confirmation bias. This submission can be disposed of for the reason that the appellant did not challenge Professor Byrne’s evidence during cross-examination by reference to the evidence he gave or the opinions Professor Byrne expressed in those three cases. [47] The appellant also submits that Mrs Campbell had not proved that Dr Gribbin’s report dated 14 January 2016 was affected by confirmation bias. Professor Byrne’s evidence about the possibility of confirmation basis was given by way of explanation for why clinical diagnosis is not limited to the radiologist’s report. In the case of Mr Campbell, it -- 12 of 14 -- 13 is clear with the benefit of hindsight that Dr Gribbin’s suggested diagnosis from the imaging of frontotemporal dementia was displaced by the subsequent history of Mr Campbell’s deterioration and radiological evidence. The onus was on Mrs Campbell to prove testamentary capacity when the last will was made and not to prove that Dr Gribbin’s report was affected by confirmation bias. 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. [48] The appellant seeks to dispute Professor Byrne’s conclusions on the appeal by reference to matters on which she did not cross-examine him. By way of example, the appellant asserts that Professor Byrne did the exercise of viewing the images in the CT/PET scans without correlating them with the other evidence. The Court cannot consider arguments from the appellant on which Professor Byrne should have been given the opportunity to respond in cross-examination. [49] The appellant places great weight on the fact that Professor Byrne was not provided with Dr Tho’s referral dated 27 January 2017 to Queensland X-Ray for a PET scan of Mr Campbell’s brain that suggested that clinically the diagnosis by Dr Tho was frontotemporal dementia and he was being treated for sleep apnoea. There are three responses to this argument. First, the report of the radiologists referred to above dated 8 February 2017 suggested that the PET/CT findings were more in keeping with an Alzheimer’s type dementia. Second, the referral is inconsistent with Dr Tho’s diagnosis in August 2016 that Mr Campbell did not have frontotemporal dementia. Third, the appellant did not give Professor Byrne an opportunity during cross- examination to comment on the significance of the referral. [50] For the reasons set out earlier, the appellant is precluded by her limited cross- examination from criticising Professor Byrne’s conclusion on the basis that he was not provided with the two wills prior to the last will. [51] The appellant’s pursuit of ground 4 on the appeal is misconceived, as it depends on challenges to Professor Byrne’s opinion by reference to matters that were not pursued at the trial. The appellant has not shown by reference to the evidence adduced at the trial that the primary judge was in error in accepting Professor Byrne’s opinions. The appellant cannot succeed on ground 4 and therefore does not succeed at all on the appeal. Orders [52] At the conclusion of the hearing of the appeal, counsel for Mrs Campbell foreshadowed seeking a costs order against the appellant, if the appellant did not succeed on the appeal. The appellant did not oppose costs following the event, but submitted that costs would need to be assessed. Even without an order that costs are to be assessed, that is the effect when a costs order is made against a party, if the parties cannot agree on the quantum of costs: see r 686 and r 687 of the UCPR. It makes no difference to address the appellant’s concern that costs should be assessed costs by making an express statement in the order. There is no reason otherwise not to order costs to follow the event. The formal orders should therefore be: 1. Application for leave to adduce further evidence refused. 2. Appeal dismissed. 3. The appellant must pay the respondent’s costs of the application and the appeal to be assessed. -- 13 of 14 -- 14 [53] MORRISON JA: I agree with the reasons and orders proposed by Mullins P. [54] WILLIAMS J: I agree with the reasons and orders of the President. -- 14 of 14 --