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Marmion v Keogh

Marmion v Keogh

Case [2022] WASC 425 9 December 2022

Testamentary Capacity

Knowledge and Approval

Presumptions in Probate Law

Revocation of Wills

Declaratory Relief

Succession Law

Civil Litigation & Procedure

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marmion v Keogh

Details

AGLC: Marmion v Keogh [2022] WASC 425
Case: [2022] WASC 425
Decision Date

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