Catalano v Maria Concetta Webster as executrix of the will of Giuseppina Picciuto - [2024] WASC 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CATALANO -v- MARIA CONCETTA WEBSTER as executrix of the will of GIUSEPPINA PICCIUTO [2024] WASC 234
CORAM:   ACTING MASTER MCDONALD
HEARD:   3 AUGUST 2023
DELIVERED          :   2 JULY 2024
FILE NO/S:   CIV 1178 of 2023
BETWEEN:   FRANCESCO ANTONIO CATALANO
First Plaintiff
JOSEPHINE VICARIO
Second Plaintiff
AND
MARIA CONCETTA WEBSTER as executrix of the will of GIUSEPPINA PICCIUTO
First Defendant
MICHELE PICCIUTO as executor of the estate of GIUSEPPINA PICCIUTO
Second Defendant
MARIA CONCETTA WEBSTER as beneficiary of the estate of GIUSEPPINA PICCIUTO
Third Defendant
MICHELE PICCIUTO as beneficiary of the estate of GIUSEPPINA PICCIUTO
Fourth Defendant

Catchwords:

Succession law - Inheritance - Application by grandchild under s 7(1)(d)(ii) of the Family Provision Act 1972 (WA) - Whether testator's will fails to make adequate provision for proper 'maintenance, support, education or advancement of life' under s 6(1) of the Act - Extension of time sought - Whether 'justice of the case' requires that the applicant be given leave to file out of time

Legislation:

Family Provision Act 1972 (WA)
Trustees Act 1962 (WA)

Result:

Application is dismissed
Costs be paid by the plaintiffs, to be taxed if not agreed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr B Willesee
Second Plaintiff	:	Mr C Hollett
First Defendant	:	Mr R Nash
Second Defendant	:	Mr R Nash
Third Defendant	:	Mr R Nash
Fourth Defendant	:	Mr R Nash

Solicitors:

First Plaintiff	:	HFM Legal
Second Plaintiff	:	Solomon Hollett Lawyers
First Defendant	:	Haynes Leeuwin
Second Defendant	:	Haynes Leeuwin
Third Defendant	:	Haynes Leeuwin
Fourth Defendant	:	Haynes Leeuwin

Cases referred to in decision:

Coates v National Trustees, Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494
Dallimore v Peter Robin Dallimore as executor of the will of David De Clifford Dallimore [2019] WASCA 99
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Estate of Barry (Dec); Carcosta v Executive Trustee and Agency Co South Australia (1974) 9 SASR 439
Hunter v Hunter (1987) 8 NSWLR 573
Kitson v Franks [2001] WASCA 134
Re Guskett [1947] VLR 212
Re Walker (Dec) [1967] VR 890
Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley [2018] WASCA 34
Young v Kestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190

ACTING MASTER MCDONALD:

Introduction

On 20 February 2023, pursuant to s 7(2)(b) of the Family Provision Act 1972 (WA) (the Act), the first and second plaintiffs applied for an extension of time in which to bring an application for provision out of the estate of the late Ms Giuseppina Picciuto (the Deceased).
The plaintiffs are the grandchildren of the Deceased. Their mother predeceased the Deceased.
The defendants in this proceeding are the Deceased's surviving children, each in their capacity as both executors and beneficiaries under the will of the Deceased.
The issue is whether the interests of justice of this case require a grant of leave to file the application for provision out of time. In my view, they do not.
For the reasons which follow, the application is dismissed, with costs to be paid by the plaintiffs, to be taxed if not agreed.

Parties

Without intending any disrespect to any of the people involved, I shall refer to the late Ms Picciuto as the Deceased and the family members as follows:
(a)Silvestro Picciuto, the Deceased's late husband, as 'Silvestro';
(b)the late Ms Maria Grazia Catalano, the Deceased's daughter and mother of the plaintiffs, as 'Maria';
(c)Ms Maria Concetta Webster, the Deceased's surviving daughter and the first and third defendant, by the name she is referred to in the joint affidavit filed by the defendants, 'Connie';
(d)Mr Michele Picciuto, the Deceased's surviving son and the second and fourth defendant, as 'Michele';
(e)Mr Francesco Antonio Catalano, the first plaintiff, Maria's son and grandson of the Deceased, as 'Francesco';
(f)Ms Josephine Vicario, the second plaintiff, Maria's daughter and granddaughter of the Deceased, as 'Josephine'; and
(g)Ms Theresa Maria Catalano, Francesco's wife, as 'Theresa'.

Application

The first plaintiff wishes to make an application pursuant to s 6(1) of the Act, on the basis that the Will does not make adequate provision from the Deceased's estate for his proper maintenance, support, education or advancement in life. However, pursuant to s 7(2) of the Act, such an application is required to be made within six months of the grant of probate, unless leave of the court is granted to file an application out of time.
In the present case, by operation of s 7(2) of the Act, any application pursuant to s 6(1) was to be made by 17 December 2021. Having failed to make the application within time, the plaintiffs now seek leave to make the application out of time.
No evidence has been filed by the second plaintiff. It is accepted that, if the first plaintiff fails in his application for leave, the second plaintiff's application will also fail. However, the defendants took issue with the plaintiffs' contention that pursuant to s 12 of the Act, the second plaintiff can rely upon leave granted to the first plaintiff, if leave is so granted.
The second plaintiff has filed a Notice of Intention to Abide. Accordingly, I will first deal with the first plaintiff's application, and return to the position of the second plaintiff at the conclusion of these reasons.

Evidence relied upon by the parties

In support of the application for leave to file out of time, the first plaintiff read the following affidavits:
(a)affidavit of Francesco Antonio Catalano sworn 22 February 2023 (First Francesco Affidavit);
(b)affidavit of Francesco Antonio Catalano sworn 1 May 2023 (Second Francesco Affidavit); and
(c)affidavit of Theresa Maria Catalano sworn 1 August 2023 (Theresa Affidavit).
In opposition to the application, the defendants read the following affidavits:
(a)joint affidavit of Maria Concetta Webster and Michele Picciuto sworn 6 July 2023 (Joint Affidavit);
(b)affidavit of Maria Concetta Webster sworn 6 July 2023 (Connie Affidavit); and
(c)affidavit of Michele Picciuto sworn 6 July 2023 (Michele Affidavit).

Background

The following facts are not substantially in dispute for the purposes of this application, and are taken from the affidavits of the parties.
The Deceased and Silvestro had three children together: Maria (born 1957), Connie (born 1965) and Michele (born 1971).[1]
[1] Joint Affidavit [5].
The Deceased and Silvestro immigrated to Australia from Italy when their eldest daughter, Maria, was around 14 years of age. Maria attended night school to learn English when she was 16 years of age and commenced employment shortly thereafter. The Deceased and Silvestro did not speak English and Maria assumed an interpreter role on all or most matters and dealings of her family.[2]
[2] First Francesco Affidavit [3.3].
Maria married Francesco's father at around 18 years of age and moved out of the Deceased's property. Maria continued to visit the Deceased almost daily. There was a period where Maria and Francesco's father moved back into the Deceased's residence while they built their new home.[3]
[3] First Francesco Affidavit [3.5] - [3.6].
Maria claimed that, while they resided with the Deceased, Francesco's father significantly improved the home of the Deceased by undertaking works including building a garage, underground cellar and enlarging the home, while contributing significant costs to the Deceased's household including contributions to utility expenses and food.[4]
[4] First Francesco Affidavit [3.6].
Once Maria and Francesco's father's new home was built, Silvestro would drive to the new home to collect Maria on a regular basis for her to care for the Deceased.[5]
[5] First Francesco Affidavit [3.7].
Francesco was born in June 1981 and is now 43 years old.[6]
[6] First Francesco Affidavit [1.4].
Francesco recalls regularly visiting the Deceased, and staying overnight at the Deceased's house regularly, including for an extended period when his parents went to visit their relatives in Italy. Francesco was permitted to keep a motor vehicle at the Deceased's house, which he worked on most weekends with his uncle, Michele, leading to family dinners and gatherings with the Deceased.[7]
[7] First Francesco Affidavit [3.9] - [3.10].
In around May 2000, Silvestro died and the Deceased asked Francesco to move into her home as she found it difficult living alone. He stayed with the Deceased on and off for many weeks until she acclimatised to living alone. During this period Maria continued to visit the Deceased almost daily and took her on outings and to appointments while continuing to act as her interpreter.[8]
[8] First Francesco Affidavit [3.11].
Francesco commenced a relationship with his now wife, Theresa, in around June 2000 and they visited the Deceased for dinners. Thursday nights were dedicated to family dinners with the Deceased. Francesco recalls that Maria was 'always there for the Deceased and that stretched far beyond family dinners'.[9]
[9] First Francesco Affidavit [3.12].
In 2008, Maria was diagnosed with cancer and was unable to care for the Deceased to the extent she had. Francesco deposed that he, Josephine and Francesco's father attempted to fill Maria's role of caring for the Deceased, including taking the Deceased on outings, to shops and on visits to the doctor.[10]
[10] First Francesco Affidavit [3.14].
In 2011, Maria died and Connie assumed the role of caring for the Deceased.[11]
[11] First Francesco Affidavit [3.15].
The Deceased executed a will on 3 December 2018 (the Will).[12] By cl 3 of the Will, the Deceased appointed her surviving children, Connie and Michele, to be the joint executors and trustees of her estate. Connie and Michele were named as beneficiaries under the Will. The Deceased included in her Will a specific declaration that no provision was to be made for the children of Maria.[13]
[12] Joint Affidavit [7], Attachment Ex 4.
[13] Joint Affidavit, Attachment Ex 4 [2].
The Deceased died on 17 October 2020.[14] Francesco attended the Deceased's funeral. He anticipated benefitting from the Deceased's Will, as Maria's child. However, his questions of the defendants as to whether he was to receive any distribution from the estate were met with silence.[15]
[14] First Francesco Affidavit [1.2].
[15] First Francesco Affidavit [3.18] - [3.20].
Connie and Michele were granted probate on 17 June 2021.[16] At the date of her death, the Deceased's estate was valued at $842,866.30, comprised of cash at bank and a property in Victoria Park (the Property).[17]
[16] Joint Affidavit [9], Attachment Ex 4.
[17] Joint Affidavit [10], Attachment Ex 3.

Distribution of the estate

Administration of the estate has been completed.
On 22 February 2022, Connie and Michele opened a bank account in the name of the estate of the Deceased (Estate Account), into which the balance from the Deceased's personal bank account was transferred.[18] The funds in the Estate Account were used to pay for the expenses of the Deceased's estate, with interim distributions from the Estate Account made to the beneficiaries between 2 November 2022 and 16 January 2023.[19]
[18] Joint Affidavit [12] - [13].
[19] Joint Affidavit [14] - [15].
The Property was sold for $920,000, with settlement taking place on 16 December 2022 and the proceeds being distributed in equal shares to the beneficiaries at the time of settlement.[20] The total value of the distributed estate after expenses was $942,195.63.[21]
[20] Joint Affidavit [17] - [20].
[21] Joint Affidavit [15], [20].
Michele used the funds distributed to him from the Deceased's estate to refinance two home loans in the name of him and his wife. Upon receiving his share of the sale proceeds of the Property he paid out one of the loans and refinanced the other with a new lending institution. As at 10 March 2023, Michele and his wife had a liability to the Bank of Queensland of $29,985.27. If Michele had not received the funds from the distribution of the estate, he would not have refinanced and substantially repaid the home loans.[22]
[22] Michele Affidavit [9] - [11].
In anticipation of receiving further distributions from the estate (by way of sale proceeds from the Property), Connie purchased a new car for a total price of $43,490 on 29 November 2022, using part of a $10,000 interim payment previously distributed to her on 14 November 2022 as a deposit.[23]
[23] Connie Affidavit [9].

Personal and financial circumstances of Francesco and Theresa

Francesco and Theresa have two children, the first born in 2007 and the second born in 2009.[24]
[24] First Francesco Affidavit [3.13].
In 2014, Francesco was diagnosed with depression and was out of work for much of 2016 ‑ 2019.[25] There is no evidence as to his present working arrangements or income earning capacity, except that he states his weekly net income and his occupation as 'automotive spray painter'. Theresa states her occupation as 'accounts administrator'.
[25] First Francesco Affidavit [3.16].
Francesco and Theresa own one car and have very limited cash on hand. They jointly own their residence in East Cannington, which is valued at $530,000 but subject to a mortgage. They also own investment properties as tenants in common with another or others.[26] Neither mentions if there is any income being derived from the investment properties, or whether they have any superannuation accounts.
[26] First Francesco Affidavit [5].
Francesco has deposed as to his financial position, claiming that he has a weekly income of $1,250 (apparently after tax) and weekly expenses of $1,206.28. He deposed to having assets of which his share is valued at approximately $450,000 and liabilities of which his share is approximately $316,000.[27]
[27] First Francesco Affidavit [5].
Theresa has also deposed as to her financial position. She has an income of $950 per week (again, this appears to be net income), and expenses of $920.81. She has assets of which her share is valued at approximately $444,000 and liabilities of which her share is approximately $314,000.[28]
[28] Theresa Affidavit [3].
Francesco deposed as follows:
Notwithstanding matters [relating to mental health] at paragraph 3.16 above, if I was unable to benefit under the Deceased's will, I will suffer undue hardship and believe that such a circumstance would be inequitable having regard to the support my Mother provided to the Deceased and the financial position of the Third and Fourth defendants.[29]
[29] First Francesco Affidavit [3.21].

Explanation for delay in making application

Francesco deposed that whilst he was aware that the Deceased had died in 2020, he was not aware until 'recently' (prior to 22 February 2023) that probate had been granted.[30] Francesco further deposed that it was his understanding that the Deceased had left her estate to her children, and in circumstances in which Maria had predeceased the Deceased, he would be a beneficiary of the Will.[31]
[30] First Francesco Affidavit [2.1].
[31] First Francesco Affidavit [2.2].
Francesco deposed that in or about mid‑October 2022, he saw the Property advertised for sale on the internet and he monitored the progress of the sale online. The Property was shown to be 'under offer' on or about 30 October 2022.[32] In around early November 2022, Francesco tried to contact Connie and Michele in relation to the Property but neither of them responded.[33]
[32] First Francesco Affidavit [2.3].
[33] First Francesco Affidavit [2.4(a)].
Francesco asked Josephine to obtain a copy of the grant of probate of the Will. Josephine received a copy of the grant of probate on or about 9 November 2022 and upon reading the Will the plaintiffs became aware that they were excluded from benefitting from the Deceased's estate.[34]
[34] First Francesco Affidavit [2.4(b)].
In late December 2022 or early January 2023, Francesco's father made an appointment to obtain legal advice on 16 January 2023. On 23 January 2023, Francesco attended a further appointment and then gave instructions to commence these proceedings.[35] By letter dated 25 January 2023, notice was sent to Michele of Francesco's intention to make a claim pursuant to the Act.[36]
[35] First Francesco Affidavit [2.5] - [2.7].
[36] Second Francesco Affidavit [1.2], FAC-4.

Statutory framework and relevant legal principles

The relevant provisions of the Act are:
6. Court's powers to order deceased's estate to provide for s 7 applicant
(1)If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
7.Who can apply for provision from deceased's estate
(1) An application for provision out of the estate of any deceased person may be made under this Act
…
(d)a grandchild of the deceased —
…
(ii)who, at the date of the deceased's death, was living and one of whose parents was a child of the deceased who had predeceased the deceased…
(2)No application under subsection (1) shall be heard by the Court unless —
(a)the application is made within 6 months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b)the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
(3)A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired.

Application for leave to file out of time

The legal principles which apply to an application for leave to file an application under s 7(2)(b) of the Act out of time are well established. In Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley (Wheatley), the court stated:[37]
[37] Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley [2018] WASCA 34 [54] - [56] (footnotes omitted).
In Andre [v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart], Steytler P observed:
Section 7(2)(b) of the Act provides a broad discretion to extend time, requiring only satisfaction that 'the justice of the case' requires a grant of leave. Where a broad discretion of that kind is conferred, a court should be careful not to confine it by resort to considerations that are not found expressly or by implication in the words of the statute. However, it is clear that the discretion is one that must be exercised judicially, in accordance with what is just, and that 'the onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits': Salmon (175) (Megarry VC); Clayton (366).
It is also settled that the strength of the case of an applicant for an extension of time is a relevant consideration. In a number of cases it has been said to be relevant to ask whether the applicant has 'an arguable case': Clayton (367 - 368) …
It seems plain enough that, if there is no arguable case on the merits, the application will be doomed from the outset and the justice of the case will not require that there be a grant of leave. However, when there is an arguable case the strength of that case may be an important factor (although still only one factor to be considered in the overall exercise of a wide discretion). (citations omitted)
In Clayton v Aust, the Full Court, with reference to the decision of Megarry VC in Re Salmon (Dec), accepted that in an application to extend time in this context, the court would at least ordinarily have regard to the following, non-exhaustive guidelines:
1.The discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is to be exercised judicially and in accordance with what is just and proper.
2.The onus lies on the applicant to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits. The time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by the rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus no triviality. The applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time.
3.It is material to consider how promptly and in what circumstances the applicant seeks the permission of the court after the time limit has expired. The whole of the circumstances must be looked at applicant gave warning to the defendants of the proposed application.
4.If negotiations have been commenced within the time limit, and time has run out while the negotiations are proceeding, this is likely to encourage the court to extend the time. Negotiations commenced after the time limit might also aid the applicant, at any rate if the defendants have not, in relation to those negotiations, taken the point that time has expired.
5.It is relevant to consider whether or not the estate had been distributed before a claim under the Act had been made or notified. For most people, there is a real difference between 'the bird in the hand and the bird in the bush'. In addition, of course, the beneficiaries are more likely to have changed their position in reliance on the benefaction if they have actually received it than if it lies merely in prospect.
6.It is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody.

As to the second of these guidelines, and whether the applicant has an arguable case, the Court of Appeal in Wheatley observed:[38]
Moreover, as Steytler P observed in Andre, where there is an arguable case, the strength of that case may be an important factor to be considered in the overall exercise of discretion. However, there will often be cases where it is difficult to undertake a more precise assessment of the merits other than to form an overall conclusion that the case is arguable. That is because the application is conventionally determined on the papers, and the court is not in a position to resolve contested evidentiary matters concerning the underlying merits of any claim. There may, of course, be some cases where the underlying material facts are uncontested, or where admissions have been made, which enable the court to assess with some degree of confidence the strength of the applicant's case. Absent such matters, and where the applicant's own affidavit evidence is not inherently implausible or contrary to the undisputed facts and points to the existence of an arguable claim, the court will often be left in the position where it can do no more than conclude that the applicant has demonstrated an arguable case on the merits.
It should be added that the above observations are directed only to the consideration of whether the applicant has an arguable claim under s 6(1) of the Act on the merits. In relation to the court's consideration of matters such as the nature, extent and reasons for the delay, the court will need to make findings of fact about those matters on the evidence presented.

Relevance of ignorance of rights under the Act

[38] Wheatley [58] (footnotes omitted).

In Wheatley, the Full Court held that a claimant's ignorance of their rights under the Act has been regarded, in appropriate circumstances, as a factor tending in favour of the exercise of discretion.[39] The Full Court adopted the observation of Lush J in Re Walker (Dec) that:[40]
In deciding whether ignorance of his rights makes the delay excusable, it is necessary to ask the question whether, if the applicant had known of his rights, he would have taken any action.

Legal principles under s 6 of the Act

Two-stage process

[39] Wheatley [62]; referring to Re Walker (Dec) [1967] VR 890, 891 ‑ 892; Estate of Barry (Dec); Carcosta v Executive Trustee and Agency Co South Australia (1974) 9 SASR 439, 445; Re Guskett [1947] VLR 212, 215; Coates v National Trustees, Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494, 505; Young vKestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190 [80].

[40] Re Walker (Dec) (891).

Section 6(1) of the Act requires the court to carry out a two‑stage process, explained by Buss JA (as he then was) in Devereaux-Warnes v Hall [No 3] (Devereaux-Warnes) as follows:[41]
The first stage involves the determination of whether the disposition of the deceased's estate effected by will or the law relating to intestacy is not such as to make adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the claimant. The first stage has been described as the 'jurisdictional question', which means no more than that the court's power to make an order in favour of the claimant is conditioned upon the court first being satisfied of the state of affairs referred to in the opening passage of s 6(1), ending with the words 'made under this Act'.
The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc.
The second stage, which only arises if the 'jurisdictional question' is determined in favour of the claimant, involves the exercise of discretion: the court may order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, etc, of the claimant.
…
The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.
At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order.

'Adequate' provision for 'proper' maintenance, support, education and advancement in life

[41] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [67] - [71] (citations omitted).

As to the concepts of 'adequate provision' and 'proper' maintenance, support, education, or advancement in life, in Devereaux‑Warnes Buss JA observed:[42]
[42] Devereaux-Warnes [72] - [80] (citations omitted).
The word 'proper' connotes something different from the word 'adequate'.
For example, a small sum may be sufficient for the 'adequate' maintenance, etc, of the claimant but, having regard to all the circumstances, including the size of the deceased's estate and the lifestyle to which the claimant had become accustomed during the deceased's lifetime, may be wholly insufficient for his or her 'proper' maintenance. By contrast, a sum may be quite insufficient for the 'adequate' maintenance, etc, of the claimant, and nevertheless be sufficient for his or her maintenance, etc, on a scale that is 'proper' in all the circumstance.
The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased.
Plainly, the totality of that relationship would include:
(a) any sacrifices made or services given by the claimant to or for the benefit of the deceased;
(b) any contributions by the claimant to building up the deceased's estate; and
(c) the conduct of the claimant towards the deceased and of the deceased towards the claimant.
Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act.
'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards.
The capacity of a court to make 'adequate' provision for the 'proper' maintenance, etc, of the claimant may be constrained by practical considerations such as the size and nature of the deceased's estate, and competition from other persons having competing claims upon the deceased's bounty, and their relative urgency.
The claimant may fail to establish that the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc, even though no provision was made for him or her in the will.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ pointed out, at 19, that the words 'adequate' and 'proper' are always relative. His Honour added:
The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.
Determination of a claim pursuant to s 6(1) of the Act will involve an evaluation of the provision made, if any, for the claimant, as against the claimant's needs which cannot be met from their own resources. However, while this evaluation will always be significant and often decisive, the issue is always whether the disposition of the deceased's estate was not such as to make adequate provision for the claimant's maintenance, support, education or advancement in life.[43]

Grandchildren as applicants

[43] Hunter v Hunter (1987) 8 NSWLR 573, 575; Devereaux-Warnes [81] - [84].

In Dallimore v Peter Robin Dallimore as executor of the will of David De Clifford Dallimore[44] (Dallimore), the Court of Appeal summarised the observations of Parker J, with whom Kennedy J agreed, in Kitson v Franks[45] in relation to claims by adult grandchildren:[46]
1. There is no special principle that grandchildren should rank less favourably than the children of the deceased in determining claims under the Act. There is also no special principle that grandchildren should, in effect, 'stand in the shoes' of their parent, the child of the deceased, and rank equally with other children of the deceased. It is s 6 of the Act which determines whether an application should succeed. This section applies the same test to all applicants, including children and grandchildren.
2.As a matter of fact in determining the jurisdictional issue, it may be a relevant factor that an applicant is a grandchild rather than a child of the deceased. Whether that is so, and if so, what that relevance will be, will depend more 'upon the particular circumstances than the actual relationship of grandchild or child'. For example, an orphaned, young grandchild left without any substantial means of support is likely to be able to satisfy the jurisdictional test, whereas an adult child established in a profession may not. On the other hand, an adult child with a mental deficiency is more likely to be able to satisfy the jurisdictional test than a healthy adult grandchild.
3.It is not necessary for an adult grandchild to establish that they have a special need or special claim in order to succeed in an application under the Act. The personal circumstances of the applicant are material facts to be weighed in deciding whether an applicant has demonstrated that adequate provision had not been made for them in the will of the deceased.
[44] Dallimore v Peter Robin Dallimore as executor of the will of David De Clifford Dallimore [2019] WASCA 99.
[45] Kitson v Franks [2001] WASCA 134 [66] - [67], [69].
[46] Dallimore [66] (citations omitted).

First plaintiff's submissions

It is not in contention that Francesco has standing to bring an application, pursuant to s 7(1)(d)(ii) of the Act, as a grandchild of the Deceased whose mother was a child of the Deceased who had predeceased the Deceased.
The first plaintiff submitted that the grant of leave is justified on the basis that:[47]
(a)the Will makes no provision for Francesco or Josephine;
(b)Francesco has clinical depression which impacts his earning capacity;
(c)Francesco has few personal assets and limited equity in shared real property;
(d)the absence of provision for the family of Maria under the Will is inequitable when regard is had to Maria's history of care and support for the Deceased, the work that Francesco's father performed on the Deceased's house and the support that Francesco personally provided to the Deceased;
(e)Francesco honestly believed he would benefit under the Will and was ignorant of any need to make the application for family provision until November 2022; and
(f)although the estate has been distributed, there is no apparent prejudice or injustice to the beneficiaries of the Will.
[47] Plaintiff's submissions filed 1 May 2023 [6] (Plaintiff's submissions).
The first plaintiff also submitted that the delay has been adequately explained and the application was promptly brought once he became aware that his belief about the status under the Will was incorrect.[48] Further, if leave were not granted, he would be left without redress.[49]
[48] Plaintiff's submissions [40] - [50].
[49] Plaintiff's submissions [38] - [39].
It was submitted that the first plaintiff is 'barely able to satisfy his financial requirements from his own resources and very little would have to change before he was rendered unable to do so.'[50]
[50] Plaintiff's submissions [23].
The evidence adduced on behalf of the plaintiff does not establish that the first plaintiff's earning capacity is presently impacted by his adverse mental health. Nor does it establish that the financial circumstances outlined in the First Francesco Affidavit and the Theresa Affidavit were those existing at the date of the Deceased's death.
While the evidence suggests that Maria had a substantial care giving and support role for the Deceased until her diagnosis in 2008, it was conceded that Francesco does not stand in his late mother's shoes in making this application.[51] However, the first plaintiff submitted that the evidence as to the relationship between Maria and the Deceased including the broader familial and cultural context is relevant for two reasons: first, it helps to explain the context in which Francesco grew up, with and around the Deceased, and second, it is relevant to the belief Francesco held about how the estate would be distributed.[52]
[51] ts 7.
[52] ts 8 - 9.
The first plaintiff submits that independent of his mother's relationship with the Deceased, Francesco himself had a close relationship with the Deceased, and provided assistance and companionship to the Deceased independently of the rest of his family.[53] The first plaintiff points to the following factors:
(a)Francesco lived with the Deceased for a time after Silvestro's death while the Deceased adjusted to being alone;
(b)Francesco regularly visited the Deceased and had a standing arrangement to visit her for dinner on Thursday nights;
(c)after Maria was diagnosed with cancer, Francesco, his father and Josephine assumed Maria's care giving responsibilities for the Deceased, until Maria's death in 2011.[54]
[53] ts 9.
[54] Plaintiff's submissions [31] - [33].
While the first plaintiff conceded the estate had been distributed, and that that is a factor tending against the exercise of the discretion to extend time, the first plaintiff also submitted that:
(a)in Connie's case, taken at its highest, and assuming that the full $43,490 that was spent on the car was done so in reliance on the receipt of funds from the estate, there has been no change in position with respect to at least $425,000 of the money that was received by her;[55]
(b)in Michele's case:
(i)detail as to exactly how Michele used funds from the estate to refinance his home loan has not been provided;
(ii)it is not clear whether any costs were associated with paying out debts early or refinancing, or the extent to which Michele has received a benefit in having reduced liability under the loans for approximately 8 months;
(iii)there is no evidence as to the current equity position in respect of the home and given that the stated outstanding liability under the loans is $30,000, it may be inferred that Michele's equity position is strong.[56]
[55] ts 13.
[56] ts 13.

Defendants' submissions

The defendants submitted that the following factors mean that the first plaintiff has not discharged the onus of establishing that it is just and proper to grant leave to file out of time because:
(a) the application is more than 14 months out of time;
(b)the estate administration was completed and the estate distributed to the beneficiaries before notice was given of the plaintiffs' claim;
(c)any order for provision would require consideration of whether an order should be made under s 65 of the Trustees Act 1962 (WA);
(d)the third and fourth defendants have acted in reliance of having an indefeasible interest in the moneys distributed to them;
(e)as an adult grandchild of the Deceased who was financially independent of the Deceased and had made his own way in the world, the first plaintiff's claim is 'marginal at best';
(f)the estate is of relatively moderate value.[57]
[57] Defendants' submissions filed 10 July 2023 [1] (Defendants' submissions).
The defendants submitted that the first plaintiff has stated no basis or source for his belief that he understood that he would benefit from the Will following Maria's death, that the defendants did not induce such a belief, and that any reasonable person in the first plaintiff's position should have known within the first twelve months after the Deceased's death that he was not a beneficiary of her estate. Further, they contend that the evidence that he made any inquiries to ascertain his status under the Will was not credible.[58]
[58] Defendants' submissions [13] - [17].
On behalf of the defendants, it was submitted that the evidence regarding Maria's relationship with the Deceased and the contributions she made to the Deceased's life and wellbeing are irrelevant.[59]
[59] Defendants' submissions [21].
The third and fourth defendants, it was argued, had each acted in reliance on the distributions received by them on the understanding that they had an indefeasible interest in the funds paid to them.[60]
[60] Defendants' submissions [18] - [20].

Disposition

Delay

There is no doubt that the delay in bringing the application is substantial, having been brought 14 months after the expiry of the prescribed period for commencing proceedings under the Act.
The first plaintiff's explanation is that until around 9 November 2022, he had an expectation of benefitting under the Will, 'as it is common for children of a child who predeceased a deceased, that child or those children would take the share which his or her parent would otherwise have taken'.[61]
[61] First Francesco Affidavit [2.2], [2.8(a)], [3.19].
Francesco deposed to having been unaware of his right to bring proceedings under the Act until he spoke to a lawyer on 23 January 2023, at which time he immediately gave instructions for proceedings to be commenced.[62] For the purposes of this application, that is not seriously in dispute.
[62] First Francesco Affidavit [2.5] - [2.8].
However, it is not clear from the evidence on what the first plaintiff based his belief that it was common for children in his position to take their deceased's parent's share. There is nothing in the affidavit material which suggests his cultural and familial background made it more reasonable for him to hold that belief than any other person.
In addition, the evidence suggests that the first plaintiff took a fairly passive approach to the inheritance to which he says he always believed he was entitled. The Deceased died in October 2020. Francesco attended her funeral. However, it was not until October 2022, after he saw the Property advertised for sale on the internet, that he took steps to ascertain the actual terms of the Will.[63] He does not explain the reason for that delay.
[63] First Francesco Affidavit [2.3] - [2.7].
The defendants properly conceded that once Francesco became aware that he was not a beneficiary of the Will, and became aware of the ability to seek redress under the Act, he did not delay in taking the necessary steps. However, they rely on the delay before that point as a factor against the grant of leave.

The fact that the first plaintiff was ignorant of both his actual position under the Will, and his right to bring proceedings under the Act, operates in favour of the grant of leave.

Distribution

The estate was wholly distributed prior to the commencement of the proceedings. While arrangements to sell the Property were first entered into on 12 August 2022, the first interim distribution from the estate was made on 2 November 2022, and all of the significant distributions, particularly the distribution of the proceeds of the sale of the Property, were made after the first plaintiff tried to contact the first and second defendants.
The evidence provides no basis for a finding as to whether the timing of the distribution relative to the timing of his attempts is anything other than coincidental. Indeed, it was conceded on behalf of the first plaintiff that the defendants were not on notice of the first plaintiff's intention to claim at the time of the final distributions being made.[64]
[64] ts 13.
I do not accept, and the third defendant did not significantly press, the submission that her purchase of a vehicle for the sum of $43,490 in anticipation of further funds being distributed to her establishes a significant change of position in reliance on her own indefeasible interest.
The fourth defendant's application of the money to repayment and refinancing of the mortgages he and his wife had over their family home constitutes a very significant change of position, apparently in reliance on his indefeasible interest in the Deceased's estate.
There is no evidence as to when that was done relative to the first plaintiff giving notice of his intention to make a claim, so it is not possible to make a finding with any degree of certainty as to this issue.
However, the fact that the entirety of the estate has been distributed, and that, in the case of the fourth defendant, the funds have been used to pay down his mortgages, is a factor which goes against the grant of leave.

Arguable case

In many respects, the evidence adduced on the part of the first plaintiff lacked detail. In some cases, such as the extent of the assistance Maria and Francesco's father contributed to the construction of parts of the Deceased's residence and the contribution to costs of the Deceased's household, the lack of detail is understandable, as the information is said to have come from Maria at some unspecified time. However, the lack of detail and its source mean that the weight it can be given is limited. The extent to which that evidence can be relied upon by Francesco as an example of contribution by Maria which is in any way relevant to his claim is undermined by the fact, for example, that there is no information as to whether that contribution was in lieu of, or addition to, rent and other appropriate payments for the period that Maria and Francesco's father were residing with the Deceased. It is also not possible to assess whether the contribution impacted on the value of the Property and, if so, how.
Similarly, while Francesco deposed to making 'attempts to ask questions of the defendants' to verify whether a distribution was to occur to him from the Deceased's estate,[65] he did not detail when or how he asked those questions or how many times he made attempts to ask those questions, apart from referring to trying to contact the first and second defendants in 'around early November 2022'.[66]
[65] First Francesco Affidavit [3.20].
[66] First Francesco Affidavit [2.4(a)].
Francesco's affidavit also lacks detail as to his present state of health. The first plaintiff submitted that it is not necessary at this stage to adduce medical evidence.[67] Even accepting that to be so, while the evidence is to the effect that at one stage Francesco was substantially affected by depression between 2016 and 2019, there is no evidence, medical or otherwise, as to any symptoms impacting him since that time, including at the date of the Deceased's death.
[67] ts 10.
Further, as I have already indicated, the information as to the financial position of Francesco and Theresa, without explanation, appears to be missing information which would ordinarily be expected to exist.
It is a matter for the plaintiffs, who bear the onus of establishing that it is just and proper that leave be granted, to determine what level of detail is adduced by way of evidence. The court must make its determination on the available evidence; it is not for the court to speculate as to what other information might be available. However, the absence of detail impacts on the assessment as to whether the plaintiffs have an arguable case and, if so, the strength of that case.
In considering whether the first plaintiff has an arguable case, the evidence as to the 'totality of the relationship' between Francesco and the Deceased establishes that, during his childhood, Francesco had a relatively unexceptional, though good, relationship with the Deceased. Of most note is that in his young adulthood, he stayed with the Deceased after Silvestro's death, at her request. Francesco deposed that he stayed with the Deceased 'off and on for many weeks'.[68] However, thereafter, the extent of Francesco's relationship with the Deceased appears to have been the attendance at weekly dinners and, after 2008 and until 2011, Francesco, Josephine and their father:[69]
[F]illed or attempted to fill (as best we could) the role of my mother in caring for the Deceased during that time. This included taking the Deceased on outings, to shops and on visits to her doctor.
[68] First Francesco affidavit [3.11].
[69] First Francesco affidavit [3.14].
Francesco does not attest to any specific contact with the Deceased after 2011.
There is no evidence as to why the Deceased made specific provision in the Will excluding the plaintiffs as beneficiaries. However, the fact that she did so defeats any suggestion that the lack of provision for the plaintiffs was inadvertent.
In my view, the evidence does not make out any particular sacrifices, contributions or conduct on Francesco's part which gave rise to a duty on the part of the Deceased to make provision for his maintenance or otherwise. As Buss JA said in Devereaux-Warnes, such sacrifices, contributions or conduct are neither a necessary nor a sufficient condition for the making of an order under the Act, but their existence or otherwise is a relevant consideration.[70]
[70] Devereaux-Warnes [76].
There is no evidence that Francesco was reliant on the Deceased for any financial assistance at any point during his lifetime, including when he was unable to work between 2016 and 2019. At the time of the Deceased's death, he was 39 years old, with a family, and apparently capable himself of financially supporting himself and that family.
Francesco's father is still alive and Francesco has a sufficient relationship with his father that it was on his father's prompting that he first sought legal advice about this matter.
Francesco has not adduced any evidence that his situation in life has substantially changed from his situation at the time of the Deceased's death. He states, without explanation, that he will suffer 'undue hardship' if he does not benefit from the Will.[71] However, the evidence of Francesco's financial circumstances and those of his wife does not satisfy me that they are insufficient to maintain him at an appropriate or proper standard.
[71] First Francesco Affidavit [3.21].
Francesco deposed that he considers that the distribution under the Will is 'inequitable' having regard to the support his mother provided to the Deceased and the financial position of the third and fourth defendants.[72]
[72] First Francesco Affidavit [3.21].
Even if the evidence established an imbalance in the level of the support Maria provided to the Deceased when compared to that provided by her siblings, that matter is not of itself relevant to the claim made by the first plaintiff. Without more (and no more is asserted), the relationship between Maria and the Deceased was not 'inherited' by the plaintiffs so as to create a duty on the part of the Deceased to ensure adequate provision for Francesco or Josephine. At best, it created a subjective expectation on the part of Francesco that he would benefit. As such, comparing the level of Maria's support of the Deceased to that of any other person is irrelevant.
Further, the financial position of the third and fourth defendants relative to the first plaintiff is irrelevant, unless the first plaintiff establishes that the Deceased did not make adequate provision for his proper maintenance, support, education and advancement in life. It is not a matter for the court to exercise dispositive power contrary to a testator's decisions absent a specific justification pursuant to the statute. The question of the relative means of other beneficiaries or potential beneficiaries becomes potentially relevant only if it is established that adequate provision was not made for the first plaintiff.
Having regard to all of the evidence in this case, I am not satisfied that the first plaintiff has established that he has an arguable case that the court should find that the Will fails to make adequate provision for his proper maintenance, support, education or advancement in life. In those circumstances, a grant of leave to file the application out of time must be refused.
Even if the first plaintiff's case were arguable, I would consider it to be so weak that, in combination with the delay in making the application, the explanation for that delay, and the fact that the estate has been fully distributed, it could not be said that the justice of the case requires a grant of leave.
Accordingly, the application is refused.
In those circumstances, it is unnecessary to determine the question of whether, if the first plaintiff were granted leave, s 12 of the Act would operate in such a manner as to entitle the second plaintiff to leave, notwithstanding her failure to adduce evidence on her own behalf. As leave has not been granted to the first plaintiff, the second plaintiff is not entitled to leave even if that question were to be answered in the affirmative.

Orders

(1)The application is dismissed.
(2)Costs be paid by the plaintiffs, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LR
Associate to Acting Master McDonald
2 JULY 2024