Australia: Tick tock, the clock’s on: Time limits for making a claim on an estate in Western Australia

Last Updated: 31 October 2014
Article by Elise Croft

You may be eligible to make a claim on a deceased person's estate pursuant to the Family Provision Act 1972 (WA) ("the Act") if you are their:

  • husband, wife or de facto partner;
  • child;
  • grandchild;
  • stepchild; or
  • parent.

The Act provides that where a testator does not make adequate provision for the proper maintenance, support, education or advancement in life of certain people (including the above) the court may, in its discretion, make an order for further provision out of the deceased's estate.

If you think you are able to make such a claim, you must not drag your feet. The application to the Supreme Court must be made within 6 months of a grant of probate or letters of administration. A grant of probate is obtained by the executor named in the will. Letters of administration, however, are obtained by an appropriate person, normally a beneficiary, in the case of an intestate Estate (an Estate for which there is no will). In each case the documents give that person the authority to deal with the deceased person's property.

The 6 month time limit for commencing proceedings pursuant to the Act was recently discussed by the Supreme Court of Western Australia in the case of Scott v Hamilton [2014] WASC 365. The plaintiff (Sonia Ann Scott) received one third of her mother's estate and the plaintiff's brother and uncle received the remaining two thirds. Fourteen months after probate was granted (8 months out of time) the plaintiff made an application to the Court to extend the time to bring her claim.

In reviewing the plaintiff's application, the Court restated the factors normally considered by the Court in such applications, namely:

  • the length of the delay;
  • the reason for the delay;
  • the promptitude with which the claimant gave warning of the proposed application to the defendant;
  • whether negotiations commenced within time but had not been concluded when time had elapsed;
  • whether the estate had been distributed at the time the executor had notice of the action;
  • whether any beneficiary has changed their position in reliance on the distribution;
  • whether the claimant has an arguable case;
  • whether, if an extension was refused, the claimant would be left without redress against any other party; and
  • whether, if an applicant instructed solicitors, he or she took steps to ensure the solicitors pursued the claim.

To the extent that the above factors applied to the facts of this case, the Court concluded that:

  • the length of delay marginally favoured a refusal of the application;
  • the notice provided to the executor did not weigh either way;
  • the distribution of the estate did not weigh either way; and
  • the plaintiff's claim was arguable but not strong.

In summary, the above factors (for and against granting an extension) balanced each other out. That left the "reason for the delay" as the deciding factor. That did not bode well for the plaintiff.

Within the relevant time period, the plaintiff had consulted two law firms and was advised by both of them (correctly) that it was unlikely she would be able to make a successful claim. However 7 months after the plaintiff was out of time she instructed a third law firm, the firm that ultimately made the application. It was the delay between instructing the second law firm and the third law firm that was not adequately explained. Given the lack of evidence, the Court concluded that she had made a conscious and well informed decision not to proceed with her claim within the time limit, but then simply changed her mind. According to Master Sanderson, this was not an adequate explanation for the delay and therefore weighed against the grant of an extension.

This factor alone tipped the scales against the Plaintiff. Her application was ultimately unsuccessful. The Court commented that it is "plain [that] the time limit contained in the Family Provision Act is substantive. As with all time limits it is designed to ensure action is taken promptly to allow parties involved to move on with their day to day affairs".

While the Act allows prospective applicants to seek an extension of time to be able to make a claim, it is clear from this case that success is not a foregone conclusion. Considered evidence must be brought to substantiate the delay.

The ultimate message is: "delay at your own peril". If you are eligible to apply for provision (or increased provision) from a deceased person's estate, you must make sure that you do so within 6 months of the grant of probate or letters of administration. If you do not, you will need to be able to articulate a good explanation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Elise Croft
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