The ACT Supreme Court has overturned a will created on the basis that “one boy is equal to two girls” and therefore sons should get double the inheritance of daughters.
Fatama Omari challenged the legitimacy of the will of her mother, Canberra woman Mariem Omari, saying she had not known what she was doing when she signed it in January 2002 – two months before she moved to a nursing home.
As one of five daughters, Fatama Omari received just a half share of the estate according to the will, while her three brothers received a full share each.
Master David Harper said the will followed a precedent for Muslims, and Imam Adama Konda confirmed during the hearing that “the standard expectation is that a Muslim will leave full shares to sons and half shares to daughters”.
“He said that one boy is equal to two girls,” he said.
Master Harper ruled that the will was invalid, but only because she was likely suffering dementia at the time she signed it – not because it was otherwise invalid.
He said she had not understood what she was doing when two of her sons took her to a friend to execute the will in January 2002.
“This is so notwithstanding that if it had not been for her dementia, she might well have decided to make a will in the same or similar terms,” he said.
Master Harper said that several witnesses remembered Mariem Omari saying she wanted her will to be created in accordance with the Muslim faith.
“I have come to the view that they arranged for their mother to execute the will which she executed, either well knowing that she did not understand what she was doing or what the effect of her execution of the will would be…” he said.
“I accept that both of the plaintiffs generally 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. I accept that they generally believed that 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 generally consistent with those Muslim expectations.
“I think that the plaintiffs in having the will prepared and arranging for their mother to execute it thought that they were doing the right thing. I do not think that either of them acted out of greed or any intention to obtain a personal benefit at the expense of anyone else.”
Mariem Omari, who signed the will with a thumbprint, could neither read nor write in any language, but had the will explained to her in her second language, Arabic.
The challenge to the will came after another court battle involving the family in 2006, in which the plaintiffs in this case – two brothers, Mohamed and Mustapha – argued that their mother should not have given power of attorney to a sibling, Sabah, who used that power to transfer his mother's investment property to another sister, Mona.
“The investment unit gave rise to a major falling out within the family,” Master Harper said.
In this case, Mohamed and Mustapha had argued that their mother had not known what she was doing when she signed this document in January 2000.