Marmion v Keogh

Case [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

  1. 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.

  2. 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.

  3. 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…

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Marmion v Keogh [2022] WASC 425
Case
[2022] WASC 425
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CaseChat Overview and Summary

In the Supreme Court of Western Australia, Betty Ellen Marmion sought to prove in solemn form the 2013 will of Charles Noel Ramm, who died on 15 February 2018. The will was challenged on the basis of testamentary capacity and whether Mr Ramm knew and approved of the contents of the will. The trial proceeded without the defendants participating. The key issue was whether the 2013 will was valid. The court found that Mr Ramm had testamentary capacity at the time of making the 2013 will, despite evidence of cognitive decline. The court also found that Mr Ramm knew and approved of the contents of the will. The court revoked the grant of probate made in respect of the Third 2002 will and granted a grant in solemn form of law of the 2013 will. The costs of the proceeding were to be paid out of the estate of Charles Noel Ramm on a solicitor and own client basis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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