The Court has jurisdiction to grant leave for an application that is commenced out of time under s7(2)(b) of the Family Provision Act 1972 (WA). The Court’s discretion can be enlivened if satisfied that the justice of the case requires that the applicant be given leave to file an application out of time.
It has been established that the six-month time limitation set out in s7(2)(a) of the Act is a substantive provision, not merely a procedural time limit. Accordingly, the burden is on the applicant in such proceedings to establish a substantial case that it is just and proper for the court to exercise its statutory discretion to extend time.[1]
The decision in Clayton v Aust (1993) 9 WAR 364 identified the following factors to be considered by the Court when deciding whether to grant leave under s7(2)(b)[2]:
- 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.
All factors are to be weighed in the balance to ultimately decide whether the justice of the case requires that leave be granted to the applicant.[3]
- Arguable case
To establish that an applicant has an arguable case, it must first be established that a plaintiff is an eligible person under the Act; and secondly, the plaintiff was prima facie left without adequate provision from the Deceased’s estate.
The notion of ‘adequate provision for the proper maintenance, education or advancement in life,’ of an applicant is not fixed concept, rather, it is malleable and conforms to what is right and proper according to contemporary accepted community standards.[7]
- Size of estate
If the estate has limited funds and no capacity to make additional provision, the Court is reluctant to grant leave. As Salmond J noted in Re Allen (Dec’d) Re Allen (dec’d); Allen v Manchester[8] at [221]:
“…owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or person to whom the testator owed a moral duty of support.”
The importance of considering the size of an estate in an application for leave was highlighted by the Supreme Court of New South Wales in Plaska v Coffey[9]. The Court rejected the application for leave on the basis that the size of the estate and competing needs of the other beneficiaries as the Court would unfairly reduce the provision made in favour of the other beneficiaries if it determined otherwise.
- Competing claims
The Court cannot consider the strength of an application for leave without considering the competing resources and needs of the other claimants on the deceased’s bounty.[10]
To determine if adequate provision has been made for an applicant, the Court must assess the applicant’s financial position, current and future needs, size and nature of the deceased’s estate, and nature of the relationship between the applicant and the deceased. These considerations must also be assessed in conjunction to the other persons who have a legitimate claim on the deceased’s estate.[11]
In Plaska v Coffey[12] the Court found that the grandchild applicant had a moral claim and need for further provision from the deceased’s estate, however, the estate did not have sufficient funds to provide for adequate provision for the applicant without unfairly reducing the provision of the other beneficiaries.[13] As such, the claim was dismissed.
Within the context of competing needs of adult children, an adult child’s lack of reserves to meet their current and future needs, especially the financial burden of their ill health, becomes more pertinent.[14]
- Freedom of testamentary disposition
Freedom of testamentary disposition has been described as a “prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.”[15] The Court has repeatedly emphasised that it must respect freedom of testamentary disposition and will only interfere with that disposition to the extent necessary to make adequate provision.
[1] Re Salmon [1981] Ch 167 at [175]; Clayton v Aust (1993) 9 WAR 364 at [366].
[2] at [56].
[3] O’Brien v Duthie, Van Der Schoot & Prince [2017] WASC 227 at [20].
[4] Family Provision Act 1972 (WA), s7(1)(d)(i).
[5] [2010] NSWSC 430 at [12].
[6] Ibid, at [40].
[7] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at [19].
[8] Re Allen (dec’d); Allen v Manchester [1992] NZLR 218 at [221] (as referred to in Harrison v Skinner [2014] NSWSC 768 at [108]).
[9] [2014] NSWSC 1930 at [84].
[10] Foley v Ellis [2008] NSWCA 288 at [88].
[11] Verzar v Verzar [2014] NSWCA 45 at [39].
[12] [2014] NSWSC 1930.
[13] Ibid, at [84].
[14] MacGregor v MacGregor [2003] WASC 169 at [181] and [182].
[15] Goodsell v Wellington [2011] NSWSC 1232 at [108], per Hallen J.
[16] Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113].