Omari v Omari

Case [2016] ACTCA 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Omari v Omari

Citation:

[2016] ACTCA 16

Hearing Date:

12 May 2016

DecisionDate:

12 May 2016

Reasons Date:

23 May 2016

Before:

Refshauge, Penfold and Jagot JJ

Decision:

1.  Subject to order 2 below, the appeal be dismissed.

2.  To the extent it has not otherwise occurred, the filing fee of $701 be paid out of the estate to the persons who paid it.

3.  The appellants pay the respondent’s costs of the appeal, as agreed or assessed.

Catchwords:

PROBATE and ADMINISTRATION – COSTS – Appeal from decision of Supreme Court dismissing appellants’ application that costs be paid out of deceased’s estate – where appellants sought to put further evidence before the Court of Appeal – whether the Master erred in exercising his discretion in making the costs order.

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 1721

Supreme Court Act 1933 (ACT), s 37N(3)

Cases Cited:

Hillier v The Queen (2008) 1 ACTLR 235
House v The King (1936) 55 CLR 499
Moon v Whitehead (2015) 10 ACTLR 309
Omari and Omari v Omari [2012] ACTSC 33

Omari and Omari v Omari [2014] ACTSC 202

Parties:

Mohammed Omari and Mustapha Omari (Appellants)

Fatma Omari (Respondent)

Representation:

Counsel

Self-represented (Appellants)

Self-represented (Respondent)

Solicitors

Self-represented (Appellants)

Self-represented (Respondent)

File Number:

ACTCA 47 of 2014

Decision under appeal:  

Court:  Supreme Court of the Australian Capital Territory

Before:  Master Harper

Date of Decision:         22 August 2014

Case Title:  Omari and Omari v Omari

Citation: [2014] ACTSC 202

THE COURT:

  1. This is an appeal against an order of the Master made on 22 August 2014 that the application of the plaintiffs (now the appellants) for their costs to be paid out of the estate of the deceased, the late Mariem Omari, be dismissed (Omari and Omari v Omari [2014] ACTSC 202, referred to as the 2014 judgment). 

  1. Before this, on 9 March 2012, the Master declared that Mariem Omari had died intestate (Omari and Omari v Omari [2012] ACTSC 33, referred to as the 2012 judgment). 

  1. In order to understand why the Master decided that the costs of the appellants ought not to be paid out of the estate it is necessary to identify the grounds on which the Master found that Mariem Omari died intestate.  In the 2012 judgment the Master explained that Mariem Omari executed a will on 13 January 2002 in the presence of the appellants, her two sons.  The appellants were appointed as the executors of the will.  Before an application for probate was lodged the respondent, a daughter of Mariem Omari, lodged a caveat requiring proof in solemn form on the basis that the will was executed when her mother was suffering from dementia and did not reflect her testamentary wishes.  The appellants applied to have the caveat set aside.  The Master ordered that the application to set aside the caveat be treated as an application for probate of the…

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AGLC
Omari v Omari [2016] ACTCA 16
Case
[2016] ACTCA 16
Decision Date

CaseChat Overview and Summary

The appeal concerned a costs order made by a Master of the Supreme Court of the Australian Capital Territory. The appellants, sons of the deceased Mariem Omari, sought to have the costs of their application for probate paid out of the deceased's estate. The respondent, the deceased's daughter, had lodged a caveat challenging the validity of the will on the grounds of lack of testamentary capacity. The Master had previously declared that the deceased died intestate, finding that the will executed in January 2002 was invalid due to her lack of testamentary capacity at that time.

The legal issues before the Court of Appeal were whether the Master erred in exercising his discretion in making the costs order, specifically in refusing to order that the appellants' costs be paid out of the estate. The appellants also sought to introduce further evidence before the Court of Appeal.

The Court of Appeal considered the evidence before the Master, which included medical reports indicating the deceased had early signs of dementia and severe cognitive impairment from as early as September 1998, and required specific locked dementia care by February 2002. A brain scan in November 2001 showed marked changes indicative of Alzheimer's disease. The Master had also considered the appellants' own affidavits from separate proceedings concerning a property transfer in 2000, where the first appellant stated his mother exhibited signs of dementia and confusion from 1999 and did not act voluntarily or know what she was doing when executing the transfer. Despite this prior evidence of significant cognitive decline, the first appellant described his mother as alert and knowing what she was doing when she executed the will in January 2002. The Court of Appeal found no error in the Master's exercise of discretion in refusing to order costs out of the estate, given the evidence of the deceased's lack of testamentary capacity at the time of executing the will.

The appeal was dismissed, with the exception that the filing fee paid to the court was to be reimbursed from the estate. The appellants were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Subject to order 2 below, the appeal be dismissed.

2. To the extent it has not otherwise occurred, the filing fee of $701 be paid out of the estate to the persons who paid it.

3. The appellants pay the respondent’s costs of the appeal, as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before this, on 9 March 2012, the Master declared that Mariem Omari had died intestate (Omari and Omari v Omari [2012] ACTSC 33, referred to as the 2012 judgment). In order to understand why the Master decided that the costs of the appellants ought not to be paid out of the estate it is necessary to identify the grounds on which the Master found that Mariem Omari died intestate. In the 2012 judgment the Master explained that Mariem Omari executed a will on 13 January 2002 in the presence of the appellants, her two sons. The appellants were appointed as the executors of the will. Before an application for probate was lodged the respondent, a daughter of Mariem Omari, lodged a caveat requiring proof in solemn form on the basis that the will was executed when her mother was suffering from dementia and did not reflect her testamentary wishes. The appellants applied to have the caveat set aside. The Master ordered that the application to set aside the caveat be treated as an application for probate of the will. The Master was satisfied that at the time she executed the will Mariem Omari lacked testamentary capacity so that the will was of no effect. As a result, he declared Mariem Omari to have died intestate. In holding that Mariem Omari lacked testamentary capacity as at 13 January 2002 the Master considered evidence from the appellants, the respondent and others. He noted that during 2001 the appellants had applied to be appointed as the guardians of Mariem Omari. The application for guardianship was supported by a medical report to the effect that, by September 1998, Mariem Omari was showing the early signs of dementia and had “severe cognitive impairment”. Another medical report said that, as at 18 February 2002, Mariem Omari required “very specific locked dementia care” and the appellants had been advised to this effect. A brain scan from 26 November 2001 showed marked changes indicative of Alzheimer’s disease, further medical evidence being that clinical symptoms of dementia pre-date these structural changes to the brain. The appellants were appointed the guardians of their mother on 22 July 2002. The appellants had also taken proceedings in 2002 in respect of a 2001 transfer by their mother of property to a daughter, the transfer having been effected by use of a power of attorney granted to another daughter. In seeking to set aside the transfer the first appellant provided an affidavit to the effect that he noted his mother’s deteriorating physical and mental state in early 1999 and had observed her becoming confused in the latter part of 1999. Further, when she executed the transfer in January 2000 she was exhibiting signs of dementia and was often forgetful and sometimes confused. In his view, when she executed the transfer, his mother did not act voluntarily or know what she was doing. The power of attorney and transfer were set aside. In the context of the present proceeding, relating to his mother’s will executed in January 2002, the first appellant described his mother as alert and said that she knew what she was doing.

Ratio Decidendi

Legal Principle Established

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