Daughter Successfully Challenges Validity of Mother’s Will

An ongoing legal dispute over the validity of a woman’s Will has returned to the Australian Capital Territory (ACT) Court of Appeal, reports the Canberra Times.

Fatma Omari had originally challenged her mother’s Will following her death in 2009. The Will had followed Islamic laws of inheritance, which meant that Fatma and her sisters only received one half of the share of her mother’s estate, that each of her three brothers received.

Her mother, Mariem Omari, had signed the Will in 2002 in the presence of two of her sons, who had also been appointed their mother’s guardians on the grounds that she was cognitively impaired.

Fatma Omari claimed that this Will was invalid, as her mother’s dementia meant she couldn’t have understood what she was doing when she signed the Will.

The judge ruled her favour. He accepted that the brothers had acted with the best of intentions and in the genuine belief that their mother would have wanted her Will to be drawn up in line with Islamic inheritance principles. However, this didn’t change the fact that they knew their mother wasn’t of sound enough mind to understand or sign her Will. The judge therefore ruled the Will to be void, which meant that Mariem Omari was deemed to have died intestate.

The ACT Public Trustee was given the responsibility of executing the Will, however the case found its way back to court after the brothers challenged a legal decision not to allow their legal costs to be paid out of their mother’s estate.

The ACT Court of Appeal has now upheld the original costs decision and dismissed the brothers’ appeal.

It may be worth noting that had the Will not been decalred void there would have been an argument under the Succession Act (had the case been brought in NSW) that the Will did not provide adequate provision for the Fatma and her sisters.

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Source:

http://www.canberratimes.com.au/act-news/brothers-ordered-to-pay-sister-costs-in-bitter-feud-over-islamic-inheritance-law-20160523-gp1dfd