Omari v Omari
[2016] ACTCA 16
•12 May 2016
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 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:
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).
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.
The Master concluded as follows:
62.Whilst I accept much of the evidence of the first plaintiff, I cannot accept his evidence about his mother’s intellectual capacity during the period from 2000 to 2002. I am satisfied that the evidence he gave in his affidavit in the proceedings before Connolly J was generally true. He made that affidavit in June 2003, some eighteen months after his mother had executed her will. It was in his interest, and in the interest of other members of the family, that the power of attorney his mother had signed in January 2000 be set aside as a necessary precondition to the setting aside of the transfer of the Belconnen unit to his sister Mona. It was clearly in his interest to satisfy the court that his mother had not known what she was doing when she signed the power of attorney. Nevertheless I am inclined to accept what he said in his affidavit in those proceedings, particularly having regard to its consistency with the opinions of the doctors. I accept his evidence that by January 2000 his mother was exhibiting signs of dementia, and I accept his expression of belief in June 2003 that she did not know or appreciate what she was doing when she executed the power of attorney.
63.By January 2002 it was to the forefront of the minds of the plaintiffs that their mother had not made a will. I have come to the view that they arranged for their mother to execute the will which she executed, either well knowing that she did not understand what she was doing or what the effect of her execution of the will would be, or alternatively with indifference to whether or not she understood those matters. I accept that both of the plaintiffs generally believed that it was their mother’s duty under Islam to make a will generally leaving full shares to her sons and half shares to her daughters. I accept that they generally believed that if their mother had been asked to make a will at an earlier time in her life, when she knew and understood what she was doing, that she would have made a will generally consistent with those Muslim expectations. I think that the plaintiffs in having the will prepared and arranging for their mother to execute it thought that they were doing the right thing. I do not think that either of them acted out of greed or any intention to obtain a personal benefit at the expense of anyone else.
64.However, I am satisfied that by January 2002 the plaintiff was suffering from advanced dementia causing severe cognitive impairment. I am satisfied that her dementia had been present for a number of years and had been progressing. I accept the opinion of Dr Rea that by January 2002 the dementia was well-established and the plaintiff would not have had any understanding of any document she might have been asked to have sign [sic] by that time.
65.I am satisfied, to adopt the words of Cockburn CJ in Banks v Goodfellow [(1870) LR 5 QB 549], that the deceased did not understand the nature of her act or its effects, did not understand the extent of the property of which she was disposing, and was not able to comprehend and appreciate the claims to which she ought to have been giving effect. This is so notwithstanding that if it had not been for her dementia, she might well have decided to make a will in the same or similar terms.
In the 2014 judgment the Master said:
7.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.
There are two grounds of appeal as follows:
(a)The Appellants honestly believed that their mother did understand the nature of the will signed by her as her last will.
(b)That the late Mariem Omari as a committed lifelong member of the Islamic faith would have adhered to the faith in disposing of her estate and therefore the appellants believe that the late Mariem Omari did know and understand the nature and effect of her last will as it was drawn in accordance with those principles.
In support of the appeal the appellants seek to put further evidence before the Court described in these terms:
(a)An affidavit by the appellants that they honestly believed that their mother did understand the nature of the will signed by her as her last will.
(b)Mariem Omari as a lifetime member of the Islamic faith would have intended to dispose of her estate and make a will based on the Islamic principles of inheritance.
(c)An affidavit by a senior Imam of the Islamic faith in Australia setting out the Islamic principles of inheritance, that the will signed by the deceased was drawn in accordance with those principles, and that the Islamic faith prescribes the rules of inheritance for committed members of the faith.
The application to put further evidence before the Court and the appeal should be dismissed.
The nature of the appeal should be explained. As stated in Moon v Whitehead (2015) 10 ACTLR 309:
23.Neither party addressed the Court at any length with respect to the nature of this appeal, but it is desirable to briefly set out the applicable principles. The nature of this appeal was set out by Dowsett J in Gaundar v Hogan [2014] ACTCA 4 at [5] – [6]:
It seems to be common ground that the appeal is by way of rehearing. The appellant submits that on such an appeal, “the Court is obliged to conduct ‘a real review of the trial’ and the judge’s reasons and give ‘the judgment which in its opinion ought to have been given in the first instance’”. The quoted passage comes from the decision of this Court in Australian Capital Territory v Crowley & Ors [2012] ACTCA 52 at [5]. Whilst it may be correct as far as it goes, it does not go as far as the appellant’s submissions might imply. There are at least two limitations upon it. The first limitation appears from the decision of the Full Court of the Federal Court in BranirPty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21] – [30]. The case demonstrates that error must be shown before an appellate court is called upon to consider the appropriate judgment to be given. As Allsop J observed at [25], on some occasions the appellate court may not be convinced that it is in as good a position as the primary judge to assess a particular aspect, and so may be reluctant to find error. Further, a demonstrated error does not necessarily lead to a review of all aspects of the trial, but only to review of any part of the judgment which may be infected by the error.
As to the second limitation some aspects of a case may allow for more than one “correct” answer, although the “correct” answer may fall within a range. Again, an appellate court will not intervene to substitute its views for that of the primary Judge, unless error is first shown.
24.In Fox v Percy (2003) 214 CLR 118, the majority (Gleeson CJ, Gummow and Kirby JJ) said at [22] – [23] concerning an appeal by way of rehearing:
The “rehearing” does not involve a completely fresh hearing by the appellate court of all of the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of the case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Citations omitted)
The Master accepted that Mariem Omari may well have wished to dispose of her estate in accordance with the will. He found, however, that she did not have testamentary capacity to make a will at the time the will was made. He ordered that the appellants’ costs not be paid out of the estate because he was satisfied that the appellants, having both had and taken the opportunity to give evidence, “were the moving persons in the preparation of the will and in having their mother execute it” at a time when “they were aware …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”.
While s 37N(3) of the Supreme Court Act 1933 (ACT) provides that the Court of Appeal may receive further evidence including by way of oral examination and affidavit, the exercise of this power is not unconfined. In Hillier v The Queen (2008) 1 ACTLR 235 the Court of Appeal (Madgwick, Weinberg and Dowsett JJ) said:
160The section speaks of “further evidence” rather than “fresh” or “new” evidence. It is similar, in that regard, to s 27 of the Federal Court of Australia Act 1976 (Cth) and s 93A(2) of the Family Law Act 1975 (Cth). In CDJ v VAJ (1998) 197 CLR 172 Gaudron J, in dealing with s 93A(2), observed that there was no reason for thinking that the common law rules which governed the admission of “fresh” evidence applied automatically to confine the discretion to receive “further evidence” conferred by the section. Of course, as a matter of construction, there were constraints upon the Family Court’s power to receive any such further evidence. In her Honour’s terms (at [55]):
“The fact that the power to admit further evidence is conferred on a court exercising appellate jurisdiction is of considerable relevance. More particularly, it is relevant that it is a power to be exercised after a hearing conducted in accordance with procedures that allow the parties to put their case and, also, to answer the case made against them. That consideration requires that, ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.”
161 However, her Honour went on to say (at [57]):
“Notwithstanding what has been said as to what should ordinarily be the case, different considerations may apply if the question is whether there has been some irregularity in the proceedings such that a party was unable to put his or her case effectively or effectively answer the case made by the other side. And that may be so even if the irregularity was not such as to constitute a denial of procedural fairness.”
162In a joint judgment McHugh, Gummow and Callinan JJ agreed with Gaudron J that the circumstances in which the Full Court of the Family Court should exercise its discretion to receive further evidence in exercise of the power conferred by s 93A(2) was to be determined as a matter of statutory construction, and not approached as if governed by the common law. In arriving at that conclusion, their Honours added (at [105]):
“Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it. In McCann [(1954) 93 CLR 418], Dixon CJ, Fullagar, Kitto and Taylor JJ said:
“The grounds upon which the court proceeds in granting the remedy ... have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end.””
In the present case, there was no procedural irregularity in the proceeding below. Moreover, the issue of the appellants’ belief about the testamentary capacity of their mother was the principal issue for determination. The appellants adduced evidence about their belief to that effect. The Master, having heard the appellants give oral evidence and seen them do so, simply did not accept their evidence and inferred that the appellants knew or were indifferent to their mother’s lack of capacity. In these circumstances, the appellants should not be given any further opportunity to adduce evidence about their subjective beliefs as to their mother’s capacity. Those beliefs were the very subject of the hearing before the Master and the inference he drew, of the appellants’ awareness of, or indifference to their mother’s lack of testamentary capacity was obviously open on the evidence before him. The Master’s subsequent decision on costs in the 2014 judgment, which refers to the appellants having been aware of their mother’s lack of capacity at the time the will was executed, must be understood as indicating that the indifference on the part of the appellants to which the Master referred in his 2012 judgment was indifference in the nature of wilful blindness to that which the plaintiffs in fact knew.
In the circumstances it would be contrary to the administration of justice for the appellants to be permitted to rely on further evidence about the honesty of their beliefs. In any case, the further evidence seems to be to the same effect as the evidence put before, and accepted by, the Master; even if admitted, it would have no significance in this appeal.
Otherwise, insofar as the appellants wish to adduce further evidence about their mother’s adherence to Islam, similar considerations apply. That evidence is also said to be relevant to the belief of the appellants about their mother’s capacity, which is the very issue the Master had to determine and, in the course of which, the Master found the appellants to be aware of or indifferent to their mother’s lack of capacity. As noted, the Master accepted that Mariem Omari was an adherent of Islam and, had she possessed capacity at the time, may well have intended that her estate be distributed in accordance with the requirements of Islam. But that was not the point before the Master who was deciding whether she had testamentary capacity or not.
For these reasons, the Court ought not to receive further evidence.
This leaves the order the Master made that the appellants not have their costs out of the estate. In so ordering the Master was exercising the discretionary power in rule 1721 of the Court Procedures Rules 2006 (ACT) which is as follows:
1721Costs—general rule
(1)The costs of a proceeding or of an application in a proceeding are in the discretion of the court.
(2)The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.
In the context of an appeal against a discretionary decision such as the one the Master made in the present case, relevant error attracting appellate review is an error of principle in the exercise of the discretion (House v The King (1936) 55 CLR 499 at 504 – 505). No such error is apparent in the present case. The Master was entitled to infer that the appellants knew that their mother lacked testamentary capacity given the evidence before him and was entitled to conclude that, as a result, in what was an adversarial contest in which the appellants failed to establish their contention that their mother had testamentary capacity, the appellants should not have their costs paid out of the estate.
Nothing the appellants have submitted affects these conclusions.
The beliefs of the appellants that they were implementing their mother’s wishes as a Muslim consistent with Muslim rules of inheritance did not alter the fact of the appellants’ awareness of their mother’s dementia and consequential lack of testamentary capacity. Further, there was no conduct of the respondent which the Master was bound to consider as weighing against the conclusion he reached. The validity of the will as an instrument under which the deceased’s estate was to be administered was to be determined under Australian law alone. Contrary to the appellant’s submissions their position – that the will had to be given effect as it was consistent with the Muslim rules of inheritance – conflicted with Australian law, not because the will provided for a distribution other than that provided for by Australian rules on distribution under an intestacy but because the deceased lacked testamentary capacity at the time the will was executed and the will was therefore ineffective.
Furthermore, the claim of the appellants, that the respondent by participating in the Islamic burial rites undertaken for her mother must therefore have accepted the whole of the will in which those rites were provided for, is without merit. First, the respondent’s actions in relation to her mother’s burial could not have rendered the will valid if her mother did not have testamentary capacity. Secondly, there is no Australian law to the effect that a deceased’s body must be dealt with inconsistently with Islamic burial rites unless those rites are provided for by a valid will.
The submissions were otherwise nothing more than a rehearsal of what was already put to and rejected by the Master.
There is only one cost which, in our view, falls within a different category of which the Master may well have been unaware. It is that the appellants appear to have paid an initial filing fee for probate of $701 which enabled determination of the invalidity of the will and the ultimate issue of letters of administration to the Public Trustee. A filing fee would have been payable to permit the administration of the estate even if the appellants had not sought to uphold the validity of the will. To that extent, the estate, and not the appellants personally, should pay that amount. Because we do not know if the appellants paid that amount personally or not, we will order only that to the extent it has not otherwise occurred, the filing fee of $701 be paid out of the estate.
For these reasons, the appeal should be dismissed. It should go without saying that the appellants cannot have the costs of this appeal paid out of the estate. Nor should the estate be burdened by the respondent’s costs. Rather, the appellants should pay the respondent’s costs of the appeal (although the respondent was not legally represented and thus cannot claim legal costs, she is entitled to be compensated for out-of-pocket expenses which would be payable pursuant to the usual order as to costs).
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: David Hoitink Date: 23 May 2016 |
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