In the estate of the late Omari [2010] ACTSC 119 (1 October 2010)

Last Updated: 27 October 2010

IN THE ESTATE OF THE LATE MARIEM OMARI, DECEASED

[2010] ACTSC 119 (1 October 2010)

PROBATE AND ADMINISTRATION – caveat challenging testamentary capacity of deceased – application by executors to remove caveat – mediation unsuccessful – direction that matter proceed as application by executors for probate of will in solemn form – onus on caveator (defendant) to establish lack of testamentary capacity – case management where parties unrepresented

Court Procedures Rules 2006 (ACT)

No. P 671 of 2009

Judge: Master Harper

Supreme Court of the ACT

Date: 1 October 2010

IN THE SUPREME COURT OF THE )

) No. P 671 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MOHAMED OMARI

First plaintiff

MUSTAPHA OMARI

Second plaintiff

AND: FATMA OMARI

Defendant

ORDER

Judge: Master Harper

Date: 1 October 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The matter proceed as an application by the plaintiffs for probate of the will of the deceased in solemn form.
2. The defendant serve on the plaintiffs within two months copies of reports by all expert witnesses whose evidence she proposes to rely on, and copies of signed statements by all non-expert witnesses she proposes to call.

The plaintiffs serve on the defendant within four months copies of reports by all expert witnesses whose evidence they propose to rely on, and copies of signed statements by all non-expert witnesses they proposes to call.

4. The proceeding be listed for further directions on Friday 10 December 2010.
5. The parties be at liberty to apply on three days notice.

1. Mariem Omari died on 7 September 2009. On 13 January 2002 she had executed a will in which she appointed her sons, the present plaintiffs, Mohamed Omari and Mustapha Omari, as executors. The testator was illiterate and executed the will by making a thumbprint on each page. The will was witnessed by Mohamed Haydar and Bouzid Said, who signed a statement attached to the will to the effect that it had been translated in full to the testator in their presence and in the presence of a justice of the peace, Mr K Haque. The will followed a precedent available for adherents of Islam. After providing that three of her children to whom money had been advanced were to give credit for the advances, the testator left her estate to her three sons and five daughters, with the sons to get a full share and the daughters a half share each. The effect was that the estate would be divided into eleven equal shares, with the sons to get two-elevenths and the daughters one-eleventh each.

2. The named executors instructed solicitors to apply for probate of the will. Before an application for probate could be lodged, one of the daughters, Fatma Omari, lodged a caveat against a grant of representation, requiring proof in solemn form of the will, and against distribution of the estate. The basis for the caveat was the assertion by the caveator that the will was made at a time when the testator was suffering from dementia, and that it did not express her wishes.

3. The named executors made application for an order setting the caveat aside. The caveator filed a notice of intention to respond through a firm of solicitors. She then applied for an order that a mediator be appointed and that the dispute be referred to mediation. On 19 February 2010 I made orders by consent that a mediator be agreed on by the parties and that the dispute be referred to mediation.

4. The parties were unable to agree on a mediator. On 29 March 2010 the plaintiffs (the named executors) filed a notice that they were no longer represented by a solicitor and would be acting in person. On 19 April 2010 the defendant filed a notice to the same effect.

5. The plaintiffs asked that the matter be relisted before me on 25 June 2010. The defendant did not appear on that date. I stood the matter over to 9 July 2010 and directed that the Registrar notify the defendant. On 9 July 2010 the plaintiffs, the defendant and another son of the deceased appeared before me. I ordered that Mr B A Meagher SC be appointed mediator and that the dispute be referred to Mr Meagher for mediation.

6. Unfortunately, when Mr Meagher read the papers he realised that he had previously acted in a dispute between the defendant and one of her sisters.

7. I made an order in chambers on 21 July 2010 that in lieu of Mr Meagher the proceeding be referred to Mr U D Boettcher, a solicitor and accredited mediator.

8. On 9 August 2010 the parties attended before Mr Boettcher for a preliminary conference. They could not agree as to who would attend the mediation. Mr Boettcher arrived at the view that there was no reasonable prospect that the dispute could be resolved by mediation. He terminated the mediation and returned the papers to the court.

9. The court encourages meditation of disputes generally, and particularly so where the dispute is between family members about family assets. However, the present dispute has reached a point where the court must accept that mediation is not a practical course. It seems that the proceeding will have to go to trial.

10. The proceeding is governed by part 3.1 of the Court Procedures Rules 2006 (ACT), which deals with administration and probate. The rules about caveats are found in division 3.1.7. Rule 3066 provides that a person claiming to have an interest in an estate may file a caveat in the court. The caveat may be a caveat against a grant of representation; a caveat requiring proof of a will in solemn form; or a caveat against distribution of the estate. The form of caveat filed by the defendant did not indicate a choice between those three alternatives, but has been treated by the court as a caveat against a grant of representation. One of the available grounds for objection by a caveator is that the testator lacked testamentary capacity at the time of execution of the will, and I take that to be the ground of the defendant’s objection.

11. Rule 3069 provides that a person who intends to apply for probate may apply to the court for an order setting aside a caveat. The plaintiffs have proceeded accordingly. Subrule (4) gives the court a discretion to set aside a caveat if it considers that the evidence does not raise doubt about whether the grant of representation should be made. By subrule (6), the court, if it does not set the caveat aside, may give appropriate directions, on application by a party or on its own initiative. Subrule (8) provides that if the court gives a direction for the caveator to start a proceeding within a stated time and the caveator fails to do so, the caveat is taken to have been withdrawn.

12. It seems to me from a consideration of the Rules, and the general nature of the proceeding before the court, that the onus should lie upon the caveator to establish her objection, rather than upon the plaintiffs to satisfy the court that the caveat should be set aside. Having regard to the state the proceeding has reached, it is unnecessary to require the defendant to start a formal proceeding. The essence of the dispute is as to the testamentary capacity of the deceased at the time she made her will. The will appears valid on its face, and the defendant should bear the onus of establishing lack of testamentary capacity. If established, this would lead to a declaration that the will was invalid. I am unaware whether the deceased had made any earlier will or whether such a declaration would leave her intestate.

13. I propose to give directions which will have the effect that, on the documents already filed, the matter proceed as an application for probate of the will of the deceased in solemn form, although as I have said, the defendant will have the onus of establishing lack of testamentary capacity.

14. Some affidavits have been filed already. Because I apprehend that there will be disputed issues of fact to be determined, I would propose that the hearing proceeding by way of oral evidence, but I propose to direct that the parties exchange witness statements and serve reports by any expert witnesses.

15. Both the plaintiffs and the defendant were earlier in the proceeding represented by solicitors. Both sides are now unrepresented. For the proceeding to go to trial will cast a considerable burden on both sides and on the court itself, but they are entitled to go to trial without legal representation if they choose to do so. It will be necessary for the court to supervise the preparatory stages by way of case management, taking account of the fact that the parties, being unrepresented, not only lack experience in the conduct of litigation but perhaps more significantly are not subject to the rules of professional conduct and etiquette which regulate the practice of solicitors and of barristers.

16. The parties will be expected to comply with rule 21, which requires them to help the court to achieve the just resolution of the issues in a timely fashion, consistently with the timely disposal of the other business of the Court. They will be expected to abide by directions made by the Court and can expect to be subjected to sanctions if they fail to do so.

17. In the circumstances I will make directions for the preparation of the proceeding for hearing and will list it for supervision from time to time as it proceeds towards a hearing date.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 1 October 2010

Plaintiffs: In person

Defendant: In person

Date of orders: 1 October 2010