Marmion v Keogh - [2022] WASC 425

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   MARMION -v- KEOGH [2022] WASC 425
CORAM:   LUNDBERG J
HEARD:   1 DECEMBER 2022
DELIVERED          :   9 DECEMBER 2022
PUBLISHED           :   9 DECEMBER 2022
FILE NO/S:   CIV 2187 of 2020
BETWEEN:   BETTY ELLEN MARMION
Plaintiff
AND
HELEN PHILOMENA KEOGH
First Defendant
THE PERTH DIOCESAN TRUSTEES
Second Defendant

Catchwords:

Wills - Probate and Administration - Proof in solemn form - Whether testator had testamentary capacity - Whether testator knew and approved of contents of the will - Presumption of revocation of lost will - Whether probate should be granted in solemn form for the 2013 will

Legislation:

Will Act 1970 (WA)

Result:

The 2013 Will is valid
The grant of probate made in respect of the Third 2002 Will is revoked

Category: B

Representation:

Counsel:

Plaintiff	:	M Curwood SC
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Kershaw Legal
First Defendant	:	Biddulph & Turley
Second Defendant	:	Warren Syminton Ralph

Case(s) referred to in decision(s):

Bailey v Bailey [1924] HCA 21; 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 54
Bull v Fulton (1942) 66 CLR 295
Calvin v Fraser [1829] 2 HAG. Ecc 266
Estate of Rofe [2021] NSWSC 257
Estate of Simmons (Deceased) (1990) 56 SASR 1
Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435
Murphy v Lewis [2021] WASC 251
Osborne v Smith (1960) 105 CLR 153
Powell v Dinwoodie [2012] WASC 139
Power v Smart [2018] WASC 168
Scaffidi v Scaffidi [No 2] [2022] WASC 227
Smart v Power [2019] WASCA 106
Timbury v Coffee [1941] HCA 22; 66 CLR 277
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Welch v Phillips (1836) 1 Moo. P.C. 299
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

LUNDBERG J:

A. Introduction and summary

The late Charles Noel Ramm (Mr Ramm) was no stranger to the making of wills during his life. He made six wills,[1] dated as follows 25 July 1964 (1964 Will),[2] 3 May 2002 (First 2002 Will), 7 October 2002 (Second 2002 Will), 17 October 2002 (Third 2002 Will), 22 August 2011 (2011 Will), and 2 September 2013 (2013 Will).
[1] The wills are Attachments GGM1 to GGM6 of the affidavit of scripts of Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 27 January 2021 (Exhibit P1).
[2] The terms of the 1964 Will were not referred to by the plaintiff and do not impact the relief sought in the proceeding.
In this proceeding, the plaintiff (Mrs Marmion), who is the sister and only sibling of Mr Ramm, seeks to prove in solemn form the last of these wills.
The trial of the action was not contested, with the solicitors for both defendants filing notices to abide by the decision of this Court, subject to any question of costs. The trial proceeded on affidavit evidence without any cross-examination, and no appearance was required by the defendants at the trial.[3] Mrs Marmion was represented at the trial by senior counsel, Mr Curwood SC.
[3] Pursuant to the Case Management Directions of Registrar Griffin made on 12 September 2022 (Case Management Directions) and the further directions made by the Court at the commencement of the trial on 1 December 2022.
For the reasons set out below, I am satisfied on the balance of probabilities that the 2013 Will is valid and a grant should be made in solemn form of law of that will. It follows from this conclusion that both the 2011 Will and the Third 2002 Will (and indeed, all prior wills) were of no effect on and from 2 September 2013, the date on which the 2013 Will was executed. Further, it follows that I should make the orders sought by Mrs Marmion to revoke the grant of probate made by this Court on 26 February 2020 to Helen Philomena Keogh (Mrs Keogh) in the estate of Mr Ramm, with the Third 2002 Will annexed.

B. Background

Mr Ramm died on 15 February 2018 at the age of 88.[4] Mr Ramm died leaving no spouse or children.[5] Mrs Marmion is the sister and only sibling of Mr Ramm.[6]
[4] Affidavit of Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 11 July 2022 at [3] and Attachment GGM1, being the death certificate (Exhibit P2).
[5] Affidavit of Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 22 November 2022 at [4] (Exhibit P3).
[6] Affidavit of Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 22 November 2022 at [3] (Exhibit P3).
In these proceedings, Mrs Marmion is represented by her sons, Geoffrey Marmion and Stephen Marmion, who hold an administration order pursuant to certain orders made by the State Administrative Tribunal.[7]
[7] Affidavit of Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 22 November 2022, Attachment GGM1 (Exhibit P3). The order dated 22 June 2020 appointed Geoffrey and Stephen Marmion as joint limited administrators of Mrs Marmion’s estate with the function to seek legal advice on her behalf and to bring and defend actions, suits, and other proceedings in her name and, if appropriate, to settle those proceedings.
Although Mr Ramm made at least six wills in his life, the pleadings and submissions in these proceedings focus on his three most recent wills. As to these wills, and by way of background context, the following matters are uncontroversial.
The Third 2002 Will was the subject of a grant of probate in common form (of a copy of that will) to the first defendant as executor (namely, Mrs Keogh). That grant was issued on 26 February 2020. Mrs Keogh was one of the named beneficiaries in the Third 2002 Will. Mr Ramm had left Mrs Keogh a bequest of $10,000 under the terms of that will. The other dispositions and gifts made under this will need not be outlined. The grant was returned to the Court by Mrs Keogh after a citation dated 24 August 2020 was issued by Registrar C Boyle pursuant to Order 73 Rule 8 of the Rules of the Supreme Court. That citation was sought at the request of the plaintiff's solicitors.[8]
[8] Mr Ramm’s estate has not been administered following the grant of probate. The assets of the estate are held in a controlled moneys account with a law firm: see affidavit of Michelle Ann Kershaw sworn 21 November 2022 at [9]-[11] and Attachments MAK5 and MAK6 (Exhibit P4).
The 2011 Will expressly revoked all previous wills made by Mr Ramm. By this will, Mr Ramm gifted the residue of his estate, after the payment of expenses, to parishes of the Anglican and Catholic churches in Perth's southeast.[9] The original of this will cannot be located, which gives rise to an issue as to revocation which I will refer to in these reasons.
[9] I observe in passing that the 2011 Will appointed, as the executors of the will, ‘the 4 leaders of the 4 churches that I leave the money too [sic]’. The question of construction of this phrase, and the validity of the appointment of these ‘leaders’ as the executors under this will, are not raised as issues in the proceedings as no party is seeking to propound the 2011 Will.
That leaves the 2013 Will, which was Mr Ramm's final will. By this will, Mr Ramm gifted the residue of his estate, after the payment of expenses, to the Perth Diocesan Trustees on trust, in equal shares, for the parishes of the same three Anglican churches identified in the 2011 Will. The Catholic Church identified in the 2011 Will was not included in the 2013 Will. There are no other dispositions or gifts recorded in the 2013 Will.
The first defendant (Mrs Keogh), the second defendant (the Perth Diocesan Trustees, being a named beneficiary under the 2011 Will and the 2013 Will), and the Catholic Church (being a named beneficiary under the 2011 Will), have each been given notice of these proceedings and the trial of the action, and have elected not to substantively participate in the proceedings.
Mrs Keogh filed a Notice to Abide by Decision dated 9 December 2020 (other than as to costs). The Perth Diocesan Trustees filed a Notice of Intention to Abide by Decision dated 9 December 2020 (other than as to costs), and disclaimed the gifts under the 2011 Will and 2013 Will by notice in writing.[10]
[10] I refer to the written disclaimer executed by the Perth Diocesan Trustees dated 7 July 2020, which disclaims the gift of the residuary estate of Mr Ramm as provided for in his will dated 2 September 2013 or any gift in any earlier will made by Mr Ramm: see Attachment GGM2 to the affidavit of Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 11 July 2022 (Exhibit P2).
As to the Catholic Church, which is a beneficiary under the 2011 Will, the solicitors for that church, Mess Kott Gunning, indicated in writing that their client 'is not interested in being involved in relation to this estate and accordingly, doesn't intend to participate in any proceedings or proof of any Will'.[11] In probate proceedings, it is well accepted that a person interested in the outcome is bound by the outcome of a trial of the proceedings even though not a party to the proceedings, provided they were on notice of the proceedings and given a reasonable opportunity to intervene in them.[12]

C. Issues

[11] Affidavit of Michele Ann Kershaw sworn 21 November 2022 at Attachment MAK4 (Exhibit P4).

[12] This proposition is of considerable antiquity. The (relatively) modern statement of the principle may be found in Osborne v Smith (1960) 105 CLR 153 at 158 (Kitto J).

The plaintiff filed comprehensive submissions summarizing the affidavit evidence and the relevant legal principles.
The primary submission advanced by the plaintiff is that the 2013 Will is valid, notwithstanding the adduction of evidence by the plaintiff which indicates that, at around the time of the making of the 2013 Will, Mr Ramm was exhibiting some signs of cognitive decline.
Further, the plaintiff submits that the disclaimer made by the Perth Diocesan Trustees (with regards to the 2013 Will, as well as the earlier 2011 Will) is effective at law to prevent the property disclaimed from vesting in the Trustees in the first place. It is submitted that a beneficiary under a will cannot be forced to accept the benefit of any gift and may disclaim it. I agree with these submissions and need say no more about the issue.[13] It follows from the foregoing that, if the 2013 Will is admitted to probate, Mr Ramm's estate will pass under the intestacy rules as if there was no effective gift under that will.
[13] In the Estate of Simmons (Deceased) (1990) 56 SASR 1 at 5. See also N Crago “Principles of Disclaimer of Gifts” (1999) 18 UWALR 65; and GE Dal Pont, Law of Succession (3rd Edition), LexisNexis 2021 at [7.42]-[7.46].
The plaintiff has also made submissions to deal with the scenario in which the 2013 Will is not admitted to probate as the last will of Mr Ramm. In that alternative scenario, the plaintiff submits that:

1. First, the 2011 Will operated to revoke the Third 2002 Will, given the opening words of that will, 'I revoke all wills previously made by me'. The plaintiff submits that the 2011 Will has this effect notwithstanding the contention that the 2011 Will was revoked by destruction, relying upon the presumption of revocation. That is, upon Mr Ramm making the 2011 Will, whether or not it came to be lost or destroyed thereafter, the effect of its execution was to revoke the Third 2002 Will.

2. Second, the 2011 Will was revoked either by destruction relying upon the presumption of revocation as just mentioned[14] or, alternatively, if for any reason the presumption does not apply, then the 2011 Will was revoked by the 2013 Will being executed (subject to considerations of testamentary capacity, and knowledge and approval).

[14] The plaintiff submits that, where a will is last traced into the testator’s possession and is not forthcoming at his death after all reasonable search and inquiry, the presumption arises that he has destroyed it with the intention of revocation, relying on Welch v Phillips (1836) 1 Moo. P.C. 299; and Powell v Dinwoodie [2012] WASC 139, [32] (E M Heenan J). Further, the plaintiff submits that, in circumstances where a will is last traced into the testator’s possession and is not forthcoming at his death, the burden of proving that the will was not destroyed with the intention of revocation is upon the party propounding its contents, relying upon Calvin v Fraser [1829] 2 HAG. Ecc 266 at 325; and Theobold on Wills 19^th Edition (2021) Sweet and Maxwell at [7-058]. In the present case, no party has sought to propound the 2011 Will.

The first of these submissions is uncontroversial, and I accept it. Accordingly, I am satisfied the Third 2002 Will was revoked on and from 27 August 2011 when the 2011 Will was executed. As to the second of these submissions, an analysis of that issue will only be necessary if I find the 2013 Will is not valid. I therefore propose to focus my analysis on the circumstances by which the 2013 Will came to be made by Mr Ramm and consider its validity.

D. Relevant principles

Even though the trial of this action proceeded on an undefended basis, the Court must nonetheless be satisfied in order to make a grant of probate for a will in solemn form, on the evidence adduced by the party propounding the will, that the will sought to be propounded is the last will and testament of a 'free and capable testator'.[15] This is a legal onus that remains on the propounder of the will at all times.[16] A grant of probate in solemn form cannot be made by the consent of the parties.
[15] Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435 at [11].
[16] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [44]; Bailey v Bailey [1924] HCA 21; 34 CLR 558, 570; and Timbury v Coffee [1941] HCA 22; 66 CLR 277, 283.
The onus of proof holds two subsidiary elements being that the testator had testamentary capacity at the time of making the will and that the testator had knowledge of and approved the contents of the will.

Testamentary capacity

The concept of 'testamentary capacity' is directed to whether the testator had the mental capacity to make a valid will. The requirements for testamentary capacity are based on the principles established in Banks v Goodfellow (1870) LR 5 QB 549 at 565 per Cockburn CJ:
It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
In Australia, that test has been adopted by the High Court in numerous cases.[17] The requirements of the Banks v Goodfellow test have been distilled into four elements which must be established, namely:[18]
1.a competent testator must understand the nature of a will and its effects;
2.a competent testator must understand the extent of the property of which he or she is disposing;
3.a competent testator must be able to comprehend and appreciate (that is, to weigh) the claims to which he or she ought to give effect; and
4.a competent testator must be free of any medical condition that prevents him or her from having, or duly exercising, their natural faculties in the making of a will.
[17] For example, Timbury v Coffey (1941) 66 CLR 277, Bull v Fulton (1942) 66 CLR 295, and Worth v Clasohm (1952) 86 CLR 439.
[18] As explained in cases such as Smart v Power [2019] WASCA 106, [60] (Murphy, Beech and Pritchard JJA); Estate of Rofe [2021] NSWSC 257, [140] (Lindsay J); and Scaffidi v Scaffidi [No 2] [84] (Hall J).
As Hall J observed in Scaffidi v Scaffidi [No 2] [2022] WASC 227 at [85], the test in Banks v Goodfellow does not require perfect mental balance and clarity in the testator. The testator's mental power may be reduced below the ordinary standard provided that he or she retains sufficient cognitive ability to understand and appreciate the testamentary act in its different bearings. Hall J helpfully outlined the following further principles (at [88]-[92], citations omitted):
[88]The relevant time at which the existence of capacity is necessary is the time when the testator made the will, not years or decades earlier. Evidence of earlier or later events will only be relevant to the extent that they are capable of supporting inferences as to the capacity of the testator at the relevant time.
[89]The question whether a person had testamentary capacity at the time of making a will is a legal rather than a medical question. Accordingly, the question must be decided by the court, not experts. Nonetheless the determination of the legal question can, and often will, be greatly assisted by the evidence of medical experts.
[90]A conclusion that a person had a condition which may fit the diagnostic criteria used by psychiatrists to identify a mental disorder may inform consideration of the legal question whether the testator had testamentary capacity, but it does not itself deny testamentary capacity. The question turns on the extent of the testator's capacity rather than the reason for any lack of capacity.
[91]There will be many persons who may meet the diagnostic criteria for a currently recognised psychiatric condition but who retain testamentary capacity. The critical questions are always whether the testator understood the nature and effect of the will, whether the testator understood the nature of the property they were disposing of, and whether they understand the claims of those who are excluded from the will, not whether the testator meets the current criteria which a psychiatrist may employ to diagnose a mental disorder.
[92]As to the requirement that the testator understand the nature of what he or she is doing and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is not necessary. However, it does need to be shown that the testator was capable of understanding the nature of the act of making a will and of understanding the 'practical effect of the central clauses' of the will.

Knowledge and approval

The concept of 'knowledge and approval' is directed to whether the testator truly knew the terms of a will and intended to give effect to them: Estate of Rofe at [129(b)] (Lindsay J). This requirement is conceptually distinct from the requirement to prove testamentary capacity and the two concepts must not be conflated, although the evidence relied upon to demonstrate each requirement may overlap.

Presumptions

The court's consideration of evidence touching upon the validity of a will is assisted by rules of practice in probate law which give rise to certain rebuttable presumptions of fact. Two presumptions of fact arise in the proof of wills for probate purposes:
1.a duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding (or of testamentary capacity); and
2.unless suspicion attaches to the will, the testator's due execution of the will is sufficient evidence that the testator knew and approved of the terms of the will.
These presumptions are summarised in Murphy v Lewis [2021] WASC 251, [16] (Smith J) and Scaffidi v Scaffidi [No 2] at [94] and [95] (Hall J). Importantly, in Estate of Rofe, Lindsay J explained that these presumptions are 'procedural constructs' that are called in aid of substantive law concepts, and that the 'ultimate question' on an application for a grant of probate or administration of a testamentary instrument remains whether the instrument was the 'last' will of a free and capable testator (at [128]).

The presumptions based on due execution may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. However, to count as 'suspicious circumstances', the circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will.[19]
[19] Smart v Power [135] (Murphy, Beech and Pritchard JJA.
In Scaffidi v Scaffidi [No 2], Hall J explained the operation of the presumptions as follows (citations omitted):
[94]If the propounder of a will proves that the will is regular on its face and has been duly executed (that is, signed by the testator and two witnesses) a presumption arises that the testator had testamentary capacity. In these circumstances the evidentiary burden shifts to the party challenging the will to point to circumstances that raise a suspicion that the testator did not have testamentary capacity. If suspicious circumstances are established the onus is put back on the propounder of the will to satisfy the court that the testator had testamentary capacity.
[95]If testamentary capacity is proved, due execution of the will also raises a presumption that the testator knew and approved of the contents of that will at the time of execution. This presumption can be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the true intentions of the testator. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved the contents of the will.
Hall J also identified examples of circumstances which may create a well-founded suspicion or doubt as to whether the will expresses the true intentions of the testator, which include (at [96]):
1.a radical change in long adhered-to testamentary dispositions of the testator;
2.the complexity of the will or the estate being disposed of;
3.the mental acuity or sophistication of the testator (or lack thereof);
4.the exclusion of persons naturally having a claim on the testator; and
5.whether there has been an opportunity for reflection and independent advice regarding the terms of the will.

E. Evidence adduced

The evidence adduced at the trial comprised the following ten affidavits:
1.affidavit of scripts sworn by Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 27 January 2021 (Exhibit P1);
2.affidavit sworn by Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 11 July 2022 (Exhibit P2);
3.affidavit sworn by Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 22 November 2022 (Exhibit P3);
4.affidavit of Michele Ann Kershaw sworn 21 November 2022 (Exhibit P4);
5.affidavit of Debra Iris Jeffries sworn 7 April 2022 (Exhibit P5);
6.affidavit sworn by Elizabeth Marmion sworn 22 November 2022 (Exhibit P6);
7.affidavit of Lindsay Paul Holland sworn 3 March 2022 (Exhibit P7);
8.affidavit of Lindsay Paul Holland sworn 26 August 2022 (Exhibit P8);
9.affidavit of Due Execution of Jennifer Lorraine Ramshaw sworn 20 April 2021 (Exhibit P9); and
10.affidavit of Michele Ann Kershaw sworn 29 August 2022 (Exhibit P10).

F. Facts established by the affidavit evidence

A brief chronology of the key events is attached to these reasons as Attachment A.

The 2002 Wills

During 2002, Mr Ramm made three wills, in the six-month period between May and October 2002. The First 2002 Will was a standard form will, which was completed by Mr Ramm. The Second 2002 Will and the Third 2002 Will were prepared by a firm of solicitors, namely Travers & Keogh.
In the First 2002 Will, Mr Ramm left the residue of his estate to Geoffrey Newell and Katherine Newell, who were Mr Ramm's friends and longtime neighbours. In the Second 2002 Will and Third 2002 Will, Mr Ramm left the residue of his estate to Dale Cottages Retirement Village (Inc) in Armadale, with Mr and Mrs Newell bequeathed the sum of $5,000 pursuant to those wills.
Other than specific dispositions of items of personal property, Mr Ramm made no substantive provision for Mrs Marmion in any of the wills he made during 2002. In the Second 2002 Will, Mr Ramm declared in clause 12 thereof that he had made:
…no provision in this my Will for my sister BETTY ELLEN MARMION or her family as I believe she has been adequately provided for in her lifetime and in particular through assets she inherited from our parents and from her parents in law.

2011 Will

Some 9 years later, Mr Ramm made the 2011 Will, by which he left the residue of his estate to four specific churches, three of which were Anglican ('Kelmscott Anglican Church', 'Armadale Anglican Church' and 'Byford Anglican') and one which was Catholic ('Armadale Catholic Parish'). In this will, Mr Ramm expressed a desire to be buried in the 'Kelmscott Anglican Church Cemetery', being one of the churches named in the will. No evidence was adduced to explain Mr Ramm's connection with any of these churches.
The 2011 Will was completed by Mr Ramm using a standard form will. It was duly executed before two witnesses.[20] The original of the 2011 Will was in Mr Ramm's custody and has not been found, despite searches.[21]

2013 Will

[20] Affidavit of Debra Iris Jefferies sworn 7 April 2022 (Exhibit P5).

[21] Affidavit of Debra Iris Jefferies sworn 7 April 2022 at [6] (Exhibit P5); and affidavit of Elizabeth Marmion sworn 22 November 2022 at [4] and [5] (Exhibit P6).

By the terms of the 2013 Will, the residue of Mr Ramm's estate was to be left to the three Anglican churches named in the 2011 Will in equal shares,[22] in each case through the 'Perth Diocesan Trustees upon trust'. The more formal language employed in the 2013 Will reflects the fact it was drafted by a representative of the Office of the Public Trustee. The particular parish of the Catholic church referred to in the 2011 Will was omitted. The expression of Mr Ramm's desire to be buried in the 'Kelmscott Anglican Church Cemetery' remained constant though.
[22] In the 2013 Will, the draftsperson styled the third church as ‘St Aidan’s Anglican Church’, but I infer from the address of that church, being in Clifton Street, Byford, that this is the same church as the ‘Byford Anglican Church’ referred to in the 2011 Will.
The circumstance in which the 2013 Will came to be prepared and executed are explained by Mr Lindsay Holland.[23] Mr Holland is a Senior Wills Paralegal Officer with the Office of the Public Trustee. He has been employed by the Office of the Public Trustee since about 2004. Mr Holland attended on Mr Ramm at his home on 13 August 2013 to take instructions for his will. Mr Holland made a contemporaneous file note of that attendance, which has been adduced in evidence. The note records that Mr Ramm and Mr Holland discussed the churches to which Mr Ramm wished to leave the residue of his estate, and Mr Ramm made a decision to identify three specific churches. Mr Ramm also expressly selected the Public Trustee as his preferred executor. According to the file note, Mr Ramm was able to specify his assets and how much money he had in the bank. Mr Holland formed the view that Mr Ramm understood the purpose of the will and was 'quite clear on how he wished to dispose of his estate'.
[23] Affidavit of Lindsay Paul Holland sworn 3 March 2022 (Exhibit P7).
Mr Holland's note records that, although 'we ended up getting his instructions ok' and he considered it appropriate to prepare the will based on his observations of Mr Ramm at the meeting, Mr Holland nonetheless requested a letter from a medical practitioner. Mr Holland recorded the following in his note:
I am prepared to do a will for Mr Ramm now as he did get better the longer the appointment went and I think he was just nervous to start with re having a stranger in the house.
Mr Holland also recorded in the file note that Mr Ramm 'seemed that he needed someone to take over looking after his financial affairs eg EPA', which I understand to be a reference to an enduring power of attorney. Mr Holland subsequently contacted certain persons to initiate arrangements for such matters.
In Mr Holland's affidavit, he deposes that (at [6]):
In my view he was capable of giving me instructions for the preparation of his will on 13 August, 2013 but I asked Sandra Aldersea [a representative from Armadale Home Help] to arrange for a doctor's certificate to back up my assessment.
Mr Holland swore a supplementary affidavit on 26 August 2022 in which he deposed to the chronology of events concerning the preparation and execution of the 2013 Will. Mr Holland assembled that chronology after a review of the file retained by the Office of the Public Trustee. Mr Holland deposed that, after seeing Mr Ramm on 13 August 2013, he prepared the will and mailed it to Mr Ramm on 20 August 2013. The will was signed by Mr Ramm on 2 September 2013, and the original of the will was received by the Office of the Public Trustee on 7 September 2013.
Mr Ramm executed the 2013 Will at the Armadale local library. His will was signed and witnessed by two librarians.[24]
[24] See Affidavit of Jennifer Lorraine Ramshaw sworn 20 April 2021 (Exhibit P9).
At the hearing of this matter, the plaintiff adduced evidence from three medical practitioners, in the form of letters and notes prepared by those practitioners which were attached to a solicitor's affidavit.

Dr Collinson

A letter from Dr Ted Collinson of the Kelvale Medical Group dated 10 April 2018 was adduced, which summarises the examination of Mr Ramm by Dr Collinson on 25 January 2013. Dr Collinson is a general practitioner. The letter was supported by a contemporaneous note taken by Dr Collinson, which appears to be dated 16 January 2013, rather than 25 January 2013, but nothing of moment turns on this discrepancy. This examination of Mr Ramm was undertaken around 7 months prior to the execution of the 2013 Will.
At the examination in January 2013, Dr Collinson undertook a cognitive assessment of Mr Ramm in which he achieved a score of 25/30 on a mini mental state examination (MMSE). The notes of the consultation record the following matters:[25]
He has come in for his driving medical, but he has no form and says he hasn't got one. Advised him I will do the medical and complete the form when he brings it in.
Despite the MMSE indicating no significant impairment, I do feel he exhibits STM [short term memory] loss. So far this does not appear to be impairing his driving, although he might find he gets lost at times.
Mini-mental state examination: Score 25. This result indicates no significant cognitive impairment has been identified.
[25] Affidavit of Michele Ann Kershaw sworn 29 August 2022, Attachment MAK1 (Exhibit P10).
In Dr Collinson's letter, prepared some years after the examination, he expressed the view that whilst he considered that Mr Ramm was able to effect a will on the date he saw him, he could not express a view as to what Mr Ramm was like later in the year because he had transferred to another general practitioner in Armadale. Dr Collinson noted in the letter that a 'vascular dementia can cause quite a rapid deterioration over weeks or months'.

Dr Aunins

The evidence adduced by the plaintiff includes some (albeit sparse) information relating to a medical assessment of Mr Ramm undertaken in mid-August 2013 by a general practitioner, Dr Walter Aunins. Dr Aunins had been Mr Ramms' treating medical practitioner for some years, although with significant gaps in time.
In May 2018, following the death of Mr Ramms, the Office of the Public Trustee made enquiries of Dr Aunins. A letter from Dr Aunins to the Office of the Public Trustee dated 23 May 2018 provides a summary of Dr Aunins' assessment of Mr Ramms based on a consultation which took place on 14 August 2013 and based on an ACAT assessment performed on 19 September 2013.[26] The original and contemporaneous notes prepared by Dr Aunins were not in evidence.
[26] Affidavit of Michele Ann Kershaw sworn 29 August 2022, Attachment MAK4 (Exhibit P10). I understand the ACAT assessment is a review by an Aged Care Assessment Team. In the present case, this is in essence the review undertaken by Dr Kroenert which occurred in September 2013.
In essence, Dr Aunins records that, when Mr Ramms was examined by him in August 2013, he formed the view that Mr Ramms was suffering from dementia and early stage Alzheimer's disease. Dr Aunins noted that Mr Ramms was 'possibly not competent to manage legal and personal affairs' at that time. In response to a question from the Office of the Public Trustee, Dr Aunins stated that it was 'probable and possible that [Mr Ramms] was suffering Dementia and early stages [sic] Alzheimer's disease at the time he signed the Will', being the 2013 Will (which was executed only a few weeks after the assessment was conducted, namely on 2 September 2013).
Dr Aunins responded to four broadly questions posed by the Office of the Public Trustee with the one-word answer 'unlikely' in respect of each question. The four questions were:
Are you able to express an opinion whether at the date of the Will (2 September 2013), the Deceased had:
(a)the capacity to comprehend and appreciate the claims of those who whom he ought to provide?
(b)the capacity to be aware of the extent of his assets at the time the Will was signed?
(c)the capacity to understand the nature of the Will at the time he signed it?
(d)testamentary capacity?
The written evidence adduced of Dr Aunins' assessment and his professional opinions relating to Mr Ramm was limited and largely conclusionary, and I infer it drew heavily on the assessment which was undertaken by Dr Kroenert, to which I now turn.

Dr Kroenert

A report from Dr Dorothea Kroenert dated 25 September 2013 was adduced. Dr Kroenert is a consultant geriatrician who was, at the time, working at the Armadale Health Service. Dr Kroenert's report summarises her examination of Mr Ramm on 19 September 2013, being about two and half weeks after the 2013 Will was executed.
In her report, Dr Kroenert diagnosed Mr Ramm with early dementia of the Alzheimer-type. Dr Kroenert concluded that Mr Ramm did not have the legal mental competence to sign an enduring power of attorney at that stage, and recommended that an application be made to the State Administrative Tribunal for an Administration Order in relation to Mr Ramm. Her report records the following matters:
I initially spoke with Mr Ramm in the presence of Sandra from Armadale Home Help and Lesley Fahey, Social Worker, and then saw him independently. In response to my questions Mr Ramm (Charles) explained that he has never married, that he enjoys looking after his chooks and the 5-acre property and that he had lived with his parents until they died. His mother died about 9 years ago, and his father a long time before that. Charles said he left school at the age of 15 .... on further questioning he said he has a sister, Betty, who lives in Mandurah and that she has three children.
The report also notes:
When I spoke with Mr Ramm on his own he explained that his money was in the building society and that 'they do what they want with the money' .... When questioned about his recent will, he said that he had given it to the three churches. He was unable to recall what his previous wills contained.[27]
[27] Although it appears that Mr Ramm had some memory issues, he was able to recall his recent will and the beneficiaries in that will.
Dr Kroenert performed a MMSE on Mr Ramm during the examination, as to which he scored 20/30, with 0/3 for recall. Mr Ramm's Abbreviated Mental Test was 4½ / 10. The doctor concluded Mr Ramm's cognitive deterioration to be consistent with early dementia of the Alzheimer-type. She also concluded that he was very much at risk financially as he did not have a good understanding of his finances even though he understood the nature of his assets in general terms.
Dr Kroenert's conclusion was that Mr Ramm did not have legal, mental competence to sign an enduring power of attorney.
Dr Kroenert referred Mr Ramm to Dr Franz Hugo of the Older Adult Mental Health centre for a second opinion, but there is no evidence before me as to this assessment.

Further matters

There is some limited reference in the evidence to Mr Ramm having been left with 'intellectual and physical disabilities' as a result of an 'illness of unknown diagnosis' when he was 12 years old. I refer in this regard to the letter from Kershaw Legal to the solicitors for the Perth Diocesan Trustees dated 3 November 2020, which is Attachment MAK2 to the affidavit of Ms Kershaw sworn 21 November 2022 (Exhibit P4). The provenance of this statement is unclear. No similar statement appears in the reports or letters of the three medical practitioners. Accordingly, I propose to place very little weight on this statement.

G. Disposition

The key issue for resolution in this case is whether, having regard to all the available circumstances, the 2013 Will is valid as a matter of law. In this regard, the legal principles I have outlined require that I be satisfied, in order to make a grant of a will in solemn form, that the will sought to be propounded is the last will and testament of a 'free and capable testator'. The two subsidiary elements to this are that I must be satisfied the testator had testamentary capacity at the time of making the will and that the testator had knowledge of and approved the contents of the will.
Senior counsel for the plaintiff submitted that I should be satisfied Mr Ramm had testamentary capacity either by reason of the presumption arising from the due execution of the 2013 Will, which was said to be rational on its face, or by reason that (if this rebuttable presumption has been displaced on the facts), the available evidence demonstrates that Mr Ramm had the requisite mental capacity to make a valid will (in the sense described in Banks v Goodfellow, among other authorities).
Having regard to the report of Dr Kroenert, I am satisfied that Mr Ramm was exhibiting signs of cognitive decline at around the time he executed the 2013 Will, namely in September 2013. The medical assessment of Mr Ramm undertaken by Dr Kroenert was quite proximate to the date of execution of this will. The assessment undertaken by Dr Aunins is similarly proximate, but as I have noted, the evidence adduced by the plaintiff concerning Dr Aunins' examination is limited and somewhat conclusionary. I therefore propose to place greater weight on the report of Dr Kroenert.
Dr Kroenert diagnosed Mr Ramm with early dementia of the Alzheimer-type and concluded that Mr Ramm did not have the legal mental competence to sign an enduring power of attorney at that stage. I am satisfied that, having regard to the earlier report and assessment by Dr Collinson, undertaken in January 2013, that Mr Ramm's cognitive ability had declined during the course of 2013, as had his short term memory loss.
The question whether the rebuttable presumption is displaced (through the identification of suspicious circumstances germane to the question of testamentary capacity) is not determined solely by reference to medical evidence, as I have earlier observed. The question of testamentary capacity is a legal one and while medical evidence is of assistance in this inquiry, all of the relevant circumstances must be examined. In this regard, the affidavit evidence adduced by the plaintiff demonstrates the following matters of fact:
1.The 2013 Will, on its face, complies with s 8 of the Wills Act 1970 (WA) - it is in writing and was signed by the testator and by two witnesses who signed the will in the presence of each other. The 2013 Will was thus duly executed.
2.The bequests made in the 2013 Will should be seen in a context where Mr Ramm never married, never had children, and the demands on his estate were limited.
3.The terms of the 2013 Will are simple and straightforward, reflecting an intention on the part of Mr Ramm to leave the entirety of his estate to certain identified Anglican churches, after payment of expenses. The terms of that will are largely consistent with the earlier 2011 Will, save for the exclusion of the particular Catholic church parish. Significantly, there is no indication that Mr Ramm was exhibiting signs of cognitive decline in 2011.
4.There is no indication that Mr Ramm was exhibiting delusions or false beliefs at the time of the execution of the 2013 Will.
5.The 2013 Will was prepared by a senior representative of the Office of the Public Trustee (Mr Holland), who attended on Mr Ramm at his home to take instructions, and formed the view that Mr Ramm was able to give proper instructions as to how he wished to dispose of his estate. Mr Ramm was also able to specify his assets and how much money he had in the bank. No particular matters of concern were identified by Mr Holland during his meeting with Mr Ramm. Mr Holland did request that a doctor's certificate be obtained, although this seems to have been more as a cautionary step. Mr Holland concluded, based on his personal meeting with Mr Ramm, that Mr Ramm 'was capable of giving me instructions for the preparation of his will'.[28]
6.The 2013 Will was not prepared and executed in one sitting. There was a period of over two weeks between the occasion on which Mr Ramm gave personal instructions to Mr Holland, and when Mr Holland ultimately attended at the Armadale library to execute the will. Accordingly, there was time and opportunity for Mr Ramm to reflect on the instructions he gave to Mr Holland and modify his intentions if he so desired.
7.The decision by Mr Ramm not to leave any of his estate to his sole sibling, Mrs Marmion, does not create any reasonable circumstance of suspicion as to his testamentary capacity, in my view. Mr Ramm had explained his intentions in this regard as long ago as 7 October 2002, when he made the Second 2002 Will. Clause 12 of that will records Mr Ramm's declaration that his sister had been 'adequately provided for in her lifetime and in particular through the assets she inherited from [their] parents and from her parents-in-law'.[29]
[28] Affidavit of Lindsay Paul Holland sworn 3 March 2022 (Exhibit P7).
[29] Affidavit of scripts of Geoffrey Gervis Marmion and Stephen Noel Marmion sworn 27 January 2021 (Exhibit P1) at page 19.

In the present case, as due execution of the 2013 Will has been proven and that will is rational on its face, having regard to Mr Ramm's personal circumstances and his much earlier indication in a prior will that he consciously elected not to provide for his only sibling, there are good reasons to conclude that the question of Mr Ramm's testamentary capacity can be addressed by an application of the applicable probate law presumption. Medical evidence has been adduced by the plaintiff, however, which points to a degree of cognitive deterioration on the part of Mr Ramm in August and September 2013, consistent with early dementia of the Alzheimer-type. Dr Kroenert expressed concerns as to Mr Ramm's mental competence based on her assessment of Mr Ramm a short while after the 2013 Will was executed. These concerns were echoed by Dr Aunins, as a result of his examination of Mr Ramm, conducted as it was a day after Mr Ramm provided instructions to Mr Holland.
I therefore propose to resolve the issue of testamentary capacity by having regard to all of the available evidence on the issue, rather than by resort to the 'procedural construct' of the rebuttable presumption. Addressing the substantive question which I am required to consider, I am mindful that the issue is a legal one, not a medical question. The medical opinions of Dr Kroenert and Dr Aunins, and the earlier assessment of Dr Collinson, are relevant to the assessment, insofar as they assist in understanding the extent of the testamentary capacity of Mr Ramms. Those assessments are not determinative, though. The critical questions remain whether Mr Ramm understood the nature and effect of the will, whether Mr Ramm understood the nature of the property he was disposing of, and whether he understood the claims of those who are excluded from the will.
On the evidence which has been adduced, I am satisfied on all of the evidence adduced by the plaintiff that Mr Ramm had testamentary capacity at the time the 2013 Will was executed. In this regard, the most cogent evidence which is available is that of Mr Holland, the senior representative from the Office of the Public Trustee, to which I have earlier referred. Mr Ramm directly engaged with Mr Holland in giving instructions to prepare this will, being a relatively straightforward testamentary instrument, which largely mirrored the will he had prepared in 2011. Further, the report prepared by Dr Kroenert confirms that Mr Ramm was aware that his money was kept in the building society and aware that he had made a will giving his estate to three churches. The test does not require that I be satisfied Mr Ramm had perfect mental balance and clarity at the date of execution of the will.
As to the requirement that Mr Ramm knew and approved of the terms of his will, I am not satisfied that there are circumstances which displace the presumption based on the due execution of the will. There are no circumstances that give rise to a suspicion that Mr Ramm might not have known and approved of the contents of the 2013 Will. I place reliance in this regard on the contemporaneous record of the meeting between Mr Ramm and Mr Holland on 13 August 2013, which demonstrates Mr Ramm's understanding of his intended will.[30] Mr Holland was an independent person who received no personal benefit from the will. He attended on Mr Ramm in his capacity as a representative of the Office of the Public Trustee.
[30] Affidavit of Lindsay Paul Holland sworn 3 March 2022 (Exhibit P7).
If, however, I am wrong in this regard, I would nonetheless be satisfied on all of the evidence adduced by the plaintiff that Mr Ramm was well aware of the terms of the 2013 Will, particularly as the terms of that will largely mirrored his earlier 2011 Will and in light of the clear evidence of Mr Holland as to the circumstances in which Mr Ramm came to give instructions to Mr Holland to prepare the 2013 Will. Importantly, this was not the first occasion in his life that Mr Ramm contemplated the making of a will. He had prepared and executed wills, or had instructed others to prepare wills on his behalf, on five earlier occasions in his life. It is reasonable to infer that he was relatively familiar with the purpose and effect of a last will and testament. In all the circumstances, I am satisfied Mr Ramm was quite aware of the importance of the will he caused to be prepared in September 2013 and understood the meaning and effect of the operative aspects of that will, most relevantly that the will would revoke previous testamentary instruments and that the entirety of his estate would fall to the three Anglican churches he had identified (but not to the Catholic church he had described in his earlier will).[31]
[31] Although, as events have transpired following Mr Ramm’s death, those churches have now disclaimed the gifts under the will.
The fact that Mr Ramm maintained an intention, over the two year period from 27 August 2011 (when he executed the 2011 Will) through until 2 September 2013 (when he executed the 2013 Will), to bequeath the majority (and then later, the entirety) of his estate to the three Anglican churches is a highly cogent matter in my view, which points strongly in favour of the conclusion that Mr Ramm knew and approved the terms of the 2013 Will.
Every case in which testamentary capacity is raised, or knowledge and approval is in issue, must necessarily be driven by the particular facts which emerge from the available evidence. Comparisons with prior cases will not be decisive, although such comparisons may be instructive to some degree. In this regard, senior counsel for the plaintiff drew attention to the factual circumstances which emerged at trial before Derrick J in Power v Smart [2018] WASC 168 (an appeal from which was dismissed by the Court of Appeal in Smart v Power). I have referred to this authority earlier in these reasons.
In that case, a will had been executed by a 91 year old woman in September 2011 (Mrs Okle), who was very frail, virtually blind, and was likely by 2010 to be suffering from dementia. The Court described this as an impairment affecting not just memory but the capacity to reason and make judgments. Further, there was no dispute on the evidence that, from about 2007 or 2008, Mrs Okle was suffering from a mild cognitive impairment. The Court at first instance accepted that a suspicion had been raised that Mrs Okle did not have testamentary capacity, such that the respondents in that case bore the onus of proving that Mrs Okle had testamentary capacity. Ultimately, the Court at first instance found Mrs Okle had the requisite testamentary capacity.[32] As to the requirement for knowledge and approval, the Court at first instance found on all the evidence that Mrs Okle knew and approved the contents of the will at the time of execution.[33] On both issues, the Court had regard to the evidence of the legal practitioner who met with the deceased on more than one occasion prior to the will being executed.[34] The legal practitioner testified as to the instructions given by Mrs Okle and the explanations given by her to support the proposed dispositions under the will (and to explain why certain family members were not identified as beneficiaries under the will). The legal practitioner recalled that Mrs Okle 'although elderly, was clear and coherent in her conversation with him, could understand what he was saying to her, and was clear in her instructions to him'.[35]
[32] [2018] WASC 168 [606]-[660].
[33] [2018] WASC 168 [665]-[696].
[34] [2018] WASC 168 [644]-[646] and [673].
[35] [2018] WASC 168 [645].
The foregoing decision demonstrates, among other matters, the importance of treating the testamentary capacity and the knowledge and approval requirements as legal questions, not medical ones to be decided by experts. Conclusions that a person fits the diagnostic criteria for dementia, for example, do not determine these issues, although they may inform them.
Accordingly, there being no other bases on which the 2013 Will was impugned, I find the 2013 Will to be valid in law. It follows from this conclusion that the 2011 Will (and indeed all prior wills) were revoked and of no effect from the date on which the 2013 Will was executed, being 2 September 2013. I therefore do not need to address the question raised in the proceedings by the plaintiff as to the legal effect of the missing 2011 Will. In such circumstances, it is correlatively appropriate that the grant of probate (in common form) issued by this Court in respect of the earlier will (the Third 2002 Will) be revoked.[36]
[36] A grant of probate in common form is revocable: Wheatley v Edgar [2003] WASC 118 [18] (E M Heenan J).
Having considered the evidence adduced on affidavit by the plaintiff, I am satisfied to the requisite standard that:
1.Mr Ramm held full testamentary capacity as at the date the 2013 Will was executed.
2.Mr Ramm knew and approved of the contents of the 2013 Will.
3.The 2013 Will was executed validly in accordance with s 8 of the Wills Act 1970 (WA).
Accordingly, I am satisfied that a grant of probate in solemn form, as proposed by the plaintiff, should issue.

H. Orders

Upon the publication of these reasons, the following orders below will issue to give effect to the above reasons:
1.The grant of probate made by this Honourable Court on 26 February 2020 to Helen Philomena Keogh in the estate of Charles Noel Ramm (with a Will annexed dated 17 October 2002) be and is hereby revoked.
2.There be a pronouncement of the force and validity of the last will and testament of Charles Noel Ramm executed on 2 September 2013 (the Final Will), a copy of such will being marked as Attachment “GGM6” to the Affidavit of Scripts sworn by Geoffrey Gervis Marmion and Stephen Noel Marmion on 27 January 2021 and filed herein.
3.There be a grant in solemn form of law of the Final Will.
4.The terms of the grant of probate or letters of administration in respect of the Final Will shall be settled by a Probate Registrar of the Court and there will be liberty to apply in relation to any matter or issues concerning the terms of the grant.
5.The plaintiff shall provide a copy of these extracted orders to the Public Trustee in and for the State of Western Australia.
6.The Public Trustee in and for the State of Western Australia shall within 28 days of the receipt of these orders give notice to the plaintiff's solicitors as to whether it will accept a grant of probate of the Final Will and make an application in the Probate Division of the Court for a grant of the Final Will.
7.If the Public Trustee in and for the State of Western Australia will not accept a grant of probate of the Final Will, Geoffrey Gervis Marmion and Stephen Noel Marmion shall be permitted to make an application in the Probate Division of the Court for a grant of Letters of Administration with the Final Will attached.
8.The parties' costs of these proceedings shall be paid out of the estate of Charles Noel Ramm on a solicitor and own client basis, such costs to be taxed if not agreed.
9.The parties have liberty to apply on any question of costs.

ATTACHMENT A

CHRONOLOGY OF RELEVANT EVENTS

Date	Relevant Event	Evidence
Wills executed between 1964 and 2011
25 July 1964	Execution of the 1964 Will.	Exhibit P1
3 May 2002	Execution of the First 2002 Will.	Exhibit P1
7 Oct 2002	Execution of the Second 2002 Will.	Exhibit P1
17 Oct 2002	Execution the Third 2002 Will.	Exhibit P1
22 Aug 2011	Execution of the 2011 Will.	Exhibit P1
Events during 2013
25 Jan 2013	Medical examination of Mr Ramm by Dr Ted Collinson.	Exhibit P10
13 Aug 2013	Meeting between Mr Ramm and Lindsay Holland (Senior Wills Paralegal Officer with the Office of the Public Trustee).	Exhibit P7
14 Aug 2013	Medical examination of Mr Ramm by Dr Walter Aunins and referral to Dr Kroenert.	Exhibit P10
20 Aug 2013	Mr Holland prepares and then mails the 2013 Will to Mr Ramm.	Exhibit P8
2 Sept 2013	Execution of the 2013 Will at the Armadale library before two librarians, Ms Ramshaw and Ms Snowsill.	Exhibits P1 and P9
7 Sept 2013	2013 Will received by the Office of the Public Trustee.	Exhibit P8
19 Sept 2013	Medical examination of Mr Ramm by Dr Dorothea Kroenert.	Exhibit P10
Events subsequent to 2013
15 Feb 2018	Date of death of Mr Ramm.	Exhibit P2
26 Feb 2020	Grant of probate to Mrs Keogh in respect of the Third 2002 Will.	Court Order
22 June 2020	Limited administration order made by the SAT in relation to the plaintiff, appointing Geoffrey Gervis Marmion and Stephen Noel Marmion as joint limited administrators.	Exhibit P3
7 July 2020	Perth Diocesan Trustees disclaim gifts under the 2013 Will and any earlier will.	Exhibit P2
24 Aug 2020	Citation issued to Mrs Keogh by Supreme Court to bring in grant of probate pursuant to Order 73 Rule 8 RSC.	Court Order
27 Nov 2020	Catholic Church indicates in writing, through its solicitors, that it is not interested in being involved in relation to the estate and does not intend to participate in any proceedings or proof of any will.	Exhibit P4
1 Dec 2020	Writ of Summons in CIV 2187 of 2020 filed.	Court File.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Judge
9 DECEMBER 2022