Omari v Omari

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.