If you are considering challenging a Will, it is important to know that there is a time limitation for bringing a claim contained in the Family Provision Act 1972 (WA) (the Act). Under section 7(2)(a) of the Act, an application can be made within 6 months from the date on which the Supreme Court issues a Grant of Probate of the Will. Under limited circumstances, the Court has discretion to extend this time, but the Court does not exercise its discretion lightly.

The Full Court in Clayton v Aust (1993) 9 WAR 364 neatly set out the principles governing the exercise of the Court’s discretion in relation to applications to extend time under the Act, as follows (with our emphasis):

  • The discretion of the Court is unfettered but must be exercised judicially and in accordance with what is just and proper;
  • The time limit in the Act is a substantive provision and not a mere procedural time limit;
  • It is relevant to consider whether there have been any negotiations with the defendant;
  • The onus is on the plaintiff to establish sufficient grounds for taking the matter out of the general rule and depriving those who are protected by it of its benefits;
  • It is relevant to consider whether the plaintiff has an arguable case on the merits but no detailed examination of the plaintiff’s claim is warranted;
  • It is relevant to consider whether a refusal to extend time would leave the plaintiff without redress against anybody.
  • It is material when considering the application to consider how promptly and in what circumstances the plaintiff has brought the application for an extension of time;
  • It is relevant to consider whether the estate has been distributed before the claim was made.

Do Not Miss the Date

A recent decision of the Court of Appeal (Drake v Bradshaw [2018] WASCA 78) is a timely reminder for all legal practitioners to ensure that if their client wishes to bring a claim, that it is done so within the time limit stipulated in the Act.

The Primary Proceedings

In Drake v Bradshaw [2017] WASC 228, the plaintiff brought an application to commence proceedings out of time under the Act.   The plaintiff’s application was filed just over 1 year and 9 months after the expiry of the time limitation.  A brief summary of the facts is as follows:

  • In September 2014, the plaintiff had been told of his entitlement under the deceased’s Will and did not raise any objections;
  • In October 2014, during a family discussion the executor informed the plaintiff that the deceased’s real estate would not be sold for a least six months “in case anyone contested the deceased’s Will”;
  • The plaintiff stated that he did not understand the executor’s comments to mean that a six month limitation period applied to him. This position was accepted by the Court;
  • The plaintiff said that he had fallen on hard times and had not been in a position to turn his mind to the question of any greater provision from the deceased’s estate. The evidence of the plaintiff’s position was a factor in explaining the delay and in favour of a potential grant of leave.
  • By the time the plaintiff brought his application, the deceased’s estate had been fully distributed. Evidence was tendered as to what the defendants had done with distributions they received from the deceased’s estate, and how each of them had altered their financial positions in reliance upon their respective inheritances.

The plaintiff’s claim was ultimately dismissed. In his reasoning, the Master stated that the distribution of the whole of the Estate was decisive, and a large part of the reason why the plaintiff’s claim was unsuccessful.  The Master stated that there was nothing precluding the plaintiff from finding out about the limitation period, and his delay ultimately resulted from an ignorance of the law combined with his difficult circumstances.

On Appeal

On appeal, four grounds were argued:

  • Firstly, that the Master failed to take account of the strength of the appellant’s case. This ground was held not to advance the appellant’s position because even if the Master had considered the strength of the appellant’s case on all the evidence before him, he could not have concluded that the case was more than arguable: see Wheatley v Wheatley [2018] WASCA 34.
  • Secondly, a refusal of the extension of time would leave the appellant without redress against anybody. This argument was unsuccessful on the basis there was no suggestion in the primary proceedings that the appellant might have had a claim against any third party at all.
  • The third and fourth grounds concerned the Master’s conclusion that the distribution of the whole of the estate was ‘decisive’ and was largely the reason for the refusal of the grant of leave. The Court held that all relevant matters had been properly considered by the Master. The word ‘decisive’ should be taken as indicating that the distribution of the whole of the estate tipped the balance in favour of the respondents.

The appeal was dismissed.

Drake v Bradshaw is a strong reminder that the Court will not readily grant leave for a plaintiff to bring a claim pursuant to the Act ‘out of time’.  The time limit provided by the Act exists for obvious reasons.  There is public interest in the prompt administration of estates.  After the time limit has lapsed, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to a Will: Andre v Perpetual Trustees WA Ltd [2009] WASCA 14.

If you think you have not been adequately provided for under a Will, it is important to get advice as soon as possible prior to any expiration of time limitations. If you would like advice, please contact Rob Durey or Jacinta Binstead on 6166 9000.