Mohamed Omari and Mustapha Omari v Fatma Omari
[2014] ACTSC 202
•22 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | MOHAMED OMARI AND MUSTAPHA OMARI v FATMA OMARI |
Citation: | [2014] ACTSC 202 |
Hearing Date(s): | 21 May 2014 |
DecisionDate: | 22 August 2014 |
Before: | Harper M |
Decision: | 1. The costs of the defendant Fatma Omari of the preparation and lodgement of the caveat, the application by the plaintiffs for an order setting the caveat aside, and the application by the plaintiffs for probate of the will of the deceased in solemn form, be paid out of the estate of the deceased. 2. The defendant have liberty to apply in relation to quantification of costs. 3. The application of the plaintiffs for costs out of the estate be dismissed with costs. |
Category: | Costs |
Catchwords: | COSTS – probate and administration – applications for costs out of estate following declaration of invalidity of will – application by successful caveator for costs out of estate granted – application by executors named in invalid will for costs out of estate refused |
Parties: | Mohamed Omari and Mustapha Omari (Plaintiff) Fatma Omari (Defendant) |
Representation: | Counsel Mr C P McKeown (Plaintiffs) In person (Defendant) Mr W M C Andrews (Public Trustee) |
| Solicitors RSK Legal (Plaintiffs) Snedden Hall & Gallop (Public Trustee) | |
File Number(s): | P 671 of 2009 |
THE COURT:
On 9 March 2012 I made a declaration that the deceased Mariem Omari, the mother of the plaintiffs and the defendant, died intestate. The plaintiffs and the defendant have both sought orders that their costs of the portion of the proceeding which resulted in that declaration be paid out of the estate.
The late Mrs Omari died on 7 September 2009, leaving three sons and five daughters. She had executed a will on 13 January 2002, appointing the plaintiffs as executors. She was illiterate, and had executed the will by making a thumbprint on each page. She had not made any previous will. I was satisfied that when she executed the will she was suffering from advanced dementia, causing severe cognitive impairment to the extent that she lacked testamentary capacity.
The matter initially came before me as an application to set aside a caveat which had been lodged by the defendant, requiring proof of the will in solemn form. The caveat was expressed to be based on the lack of testamentary capacity of Mrs Omari at the time she executed it.
On 1 October 2010 I made an order that the matter proceed as an application by the plaintiffs for probate of the will by the deceased in solemn form. The proceeding came before me for hearing on 8 and 14 September 2011. The plaintiffs were legally represented at that hearing. The defendant appeared in person, but had previously been legally represented and had incurred legal costs.
The defendant was successful in the portion of the proceeding I dealt with. She does not seek costs personally against the plaintiffs, but only costs out of the estate. The caveat she lodged was, as it turns out, necessary to achieve justice between the parties and the other children of the deceased. The result was a benefit to each of the five daughters and a detriment to each of the three sons. I find myself readily persuaded that the defendant should have her costs out of the estate.
I am mindful of the difficulty she will have in quantifying those costs, and any disbursements she may be entitled to recover, in circumstances where she is not presently legally represented. But I find myself unable to undertake a quantification so as to arrive at a lump sum on the material presently available to me, and have little choice but to leave the quantification to others.
I am not satisfied that the plaintiffs should have their costs of applying to have the caveat removed, and pressing for probate of the will. They were the moving persons in the preparation of the will and in having their mother execute it. I am satisfied that they were aware at the time that their mother did not understand what she was doing when she executed the will and was in no mental condition to make a will. It does not seem to me that the plaintiffs acted, in attempting to uphold the will, in the interests of the estate or the other beneficiaries. Their application for costs out of the estate will be refused.
I order that the costs of the defendant Fatma Omari of the preparation and lodgment of the caveat, the application by the plaintiffs for an order setting the caveat aside, and the application by the plaintiffs for probate of the will of the deceased in solemn form, be paid out of the estate of the deceased. In circumstances where the defendant is unrepresented, and where there may be some simpler means of arriving at a quantification of her recoverable costs short of the preparation of a bill for assessment in the usual way, I grant the defendant liberty to apply in relation to quantification of costs.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Harper. Associate: Date: |
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