Costs consequences of seeking to prove an invalid Will
On 13 January 2002 a lady executed her Will arranged by two of her sons, who were also named as her executors (“the two sons”). She died almost seven years later in 2009, leaving three sons and five daughters surviving her.
Her Will benefited the sons over the daughters, with each son receiving twice as much as each daughter. Her sons believed that this is what she would have wanted to do, according to her Islamic faith.
One of the lady’s daughters lodged a caveat in the Probate Court on the grounds that the Will was executed when her mother was suffering from dementia and did not reflect her wishes. The two sons disagreed. They wanted the caveat removed so that their mother’s Will could be proved.
The Court agreed with the daughter. The Court felt satisfied that lady was suffering from advanced dementia when she executed her Will, and would not have understood any document that she was asked to sign at that time.
Because the Court felt she did not have testamentary capacity to make her Will, that Will was therefore of no effect. As the lady did not have a previous Will, she died without a valid Will (i.e. intestate), which meant her estate would be distributed in accordance with legislation.
The Court felt that the lady’s two sons were instrumental in arranging for their mother to execute her Will at a time that they knew she would not understand what she was doing.
The question then turned to the issue of costs. Who was going to pay for these proceedings?
In the 2014 judgment, the Court refused the sons’ application for the costs to be paid out of their late mother’s estate. The Court said that it did not seem that the sons had ‘acted, in attempting to uphold the will, in the interests of the estate or the other beneficiaries’.[i]
The sons appealed the Court’s decision before the Court in 2016.[ii]
If the lady had testamentary capacity at the time she made her Will, then she may well have intended her estate to be distributed in accordance with Islamic law. However, the issue was whether or not she had testamentary capacity at the time she made her Will or not. And despite her background, the validity of her Will was to be determined under Australian law.
There was sufficient evidence for the Court to determine that she did not have testamentary capacity and that the son’s knew this or were indifferent or wilfully blind to this fact.
The Court held that the appeal should be dismissed and that the sons’ application for costs to be paid out of the estate (other than a $701 court filing fee) should be refused. The Court also held that the costs of the appeal should not to be paid out of the estate and that the daughter’s costs of the appeal should be paid by the sons.
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[i] Mohamed Omari and Mustapha Omari v Fatma Omari  ACTSC 202,  per Harper M.
[ii] Omari v Omari  ACTCA 16