Omari v Omari

[2016] ACTCA 16

ACT Court of Appeal

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Interrogate

Catchwords

1. Probate and Administration
2. › Costs
3. › Costs out of estate
4. › Whether costs of unsuccessful application for probate should be paid out of estate
5. › Whether Master erred in exercising discretion to refuse costs out of estate
6. › Court Procedures Rules 2006 (ACT), r 1721
1. Appeal
2. › Appeal by way of rehearing
3. › Appellate review of discretionary decision
4. › Error of principle required
5. › House v The King (1936) 55 CLR 499
1. Appeal
2. › Further evidence on appeal
3. › Whether further evidence should be admitted
4. › Evidence available at trial
5. › No procedural irregularity
6. › Supreme Court Act 1933 (ACT), s 37N(3)

Quick Take

Where a party seeking probate is found to have known of or been wilfully blind to the testator's lack of testamentary capacity, a court may properly refuse to order that party's costs be paid out of the estate. Further evidence on appeal will not be admitted where the issue was fully ventilated at trial and the trial judge rejected the evidence after hearing oral testimony, absent procedural irregularity.