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;
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
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  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,
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
the notice provided to the executor did not weigh either
the distribution of the estate did not weigh either way;
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
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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There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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