Capacity & Cultural Considerations

Mariem Omari died in September 2009, aged eighty-one; She was survived by three sons and five daughters. In January 2002 Mariem executed a Will appointing two of her sons, Mohamed and Mustapha, as executors. She was illiterate, and executed the Will by making a thumbprint on each page.

Mariem’s daughter, Fatima, lodged a caveat against any grant of probate, on the grounds that at the time she executed the Will Mariem lacked testamentary capacity.

Mariem was born in eastern Turkey in February 1928. Her family moved to Lebanon in the mid-1930s. The family moved to Australia between 1976 and 1978. She lived in the suburbs of Canberra from her arrival in Australia until her death, never learned to read or write in any language, and her spoken English was limited. She spoke a little French and some Arabic, although there is a dispute as to her level of proficiency.

Meriam’s executors prepared the Will in the Muslim tradition. The Court noted that both of the executors 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. The Will was executed by making a thumbprint on each page. The estate would be divided into eleven equal shares, with each son to get two elevenths and each daughter one eleventh.

Fatima argues that the Will was made at a time when Mariem was suffering from dementia, and that it did not express her wishes.

The Court concluded that the executors arranged for their mother to execute the Will, either 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. Mariem’s sons were not acting out of greed or any intention to obtain a personal benefit. They believed that they were doing the right thing and 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  consistent with Muslim expectations.

However by January 2002 Meriam was suffering from advanced dementia causing severe cognitive impairment. Medical evidence provided to the Court stated that by January 2002 Meriam would not have had any understanding of any document she might have been asked to sign. Therefore this evidence meets the test for lack of capacity in that she 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.

There was no evidence that Meriam had made any previous will, accordingly the Court made a declaration that she died intestate and administration of the estate should be granted to the Public Trustee.

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