The Supreme Court of Western Australia has recently refused a
plaintiff's application to extend the time in which to bring a
claim against his late father's estate.
In the previous Update
Tick Tock, The Clock's On we referred to the strict 6 month
time limit in which to commence a claim on a deceased person's
estate pursuant to the Family Provision Act 1972 (WA)
In the case of Wheatley v Wheatley  WASC 248 the
plaintiff's father died in May 2008, and left an estate of
approximately $7 million. Probate was granted to the deceased's
wife (the plaintiff's mother) in October 2008. Under the Act
the limitation date to bring a claim against the estate was in
April of 2009. In 2016 the plaintiff applied to the Supreme Court
and sought an extension of almost 7 years.
Master Sanderson dealt with the application by considering two
the length of the delay; and
the strength of the plaintiff's claim.
Dealing with the second question first, the Master formed the
view that the plaintiff's case was arguable.
The plaintiff was 27 when his father died and claimed that
throughout his early life he was encouraged to pursue the life of a
farmer. His father created an expectation that the family farms
were to become the plaintiff's when he died. When his father
became ill, the plaintiff gave up his own carpentry business to
take up full time work on the farms with his father.
This decision reduced the plaintiff's income and future
income prospects. He contributed to the business by expanding the
farming operations and claimed to not receive any of the additional
income which flowed from this. It was held that the plaintiff's
contribution to the development of the deceased's estate in the
six years prior to this date, made it arguable that a moral duty to
the plaintiff arose which the deceased failed to discharge.
The Master then considered the question of delay. The plaintiff
explained his delay as follows:
he did not know until October 2009 that he could in fact
challenge his father's will;
in December 2010 he was told it would cost him a considerable
amount of money to commence such proceedings, funds which he did
not have available at that time; and
in December 2012 the plaintiff believed he had an agreement
with the second defendant (his mother) concerning his late
The plaintiff's mother in her personal capacity (second
defendant in the proceedings) brought to the court's attention
that the plaintiff did not produce any evidence as to his financial
status in December 2010. It also became apparent that the plaintiff
received legal advice in August 2010 and in July 2013 the plaintiff
acquired a loan for $300,000, yet he still did not take any
The Master dismissed the plaintiff's application, finding
that the plaintiff had failed to provide an adequate explanation
for the lengthy delay and the Master having formed the view that
when all of the factors were looked at together it was not in the
interests of justice to grant the extension sought. The Master also
commented that the plaintiff had sought legal advice and made a
conscious informed decision not to proceed, which was a strong
factor against a grant of leave for an extension of time.
Another factor against the grant of leave, albeit not a large
factor, was that the estate was distributed many years ago.
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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