Daebritz v Gandy

This case concerns a legal dispute between Bethwyn Annette Daebritz, the plaintiff, and Kimberley Neil Gandy, Glynn Trevor Gandy, and Stephen Wallace McCloud, the defendants. The plaintiff, who was the de facto widow of the deceased, Alexander Robert Neil Gandy, sought to bring a claim under the Inheritance (Family & Dependants Provision) Act 1972 (WA) out of time. The six-month period within which a claim under the Inheritance Act should be brought had expired, and the application for an extension of time was filed about 15 months late. The key issue in this case was whether the deed of release signed by the plaintiff after the deceased's death could be considered as a complete bar to her claim for better provision from the estate under the Inheritance Act.

The court found that the deed of release was not binding on the plaintiff, as it would be contrary to public policy to allow her to contract out of her right to apply for family provision under the Act. The court applied the principle established in Lieberman v Morris (1944) 69 CLR 69, which held that any agreement to forgo a right to apply for family provision is void as being contrary to public policy. The court considered that the deed of release was of evidential value but did not prevent the plaintiff from bringing her claim.

The court also considered the factors mentioned in Clayton v Aust (1993) 9 WAR 364 in granting the plaintiff's application to bring her claim out of time. The court found that the plaintiff had offered a reasonable explanation for the lateness of the application and that her claim had arguable merit. Therefore, the court decided to grant leave to the plaintiff to bring her application out of time.

In conclusion, the court granted the plaintiff's application to bring her claim under the Inheritance (Family & Dependants Provision) Act 1972 (WA) out of time, while also considering the deed of release signed by the plaintiff as not binding on her due to public policy grounds. The court will hear the parties on costs.