Larkan v Larkan - [2022] WASC 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LARKAN -v- LARKAN [2022] WASC 169
CORAM:   STRK J
HEARD:   20 JULY 2021
DELIVERED          :   16 MAY 2022
FILE NO/S:   CIV 1046 of 2021
BETWEEN:   DIANE LARKAN
First Plaintiff
WILLIAM TROY LARKAN
Second Plaintiff
RYAN JAMES LARKAN by next friend JUDITH ANGELA BELL
Third Plaintiff
AND
TIMOTHY LARKAN as executor of the estate of CLINTON LARKAN
First Defendant
TIMOTHY LARKAN beneficiary of the estate CLINTON LARKAN
Second Defendant
HENDRINA LARKAN beneficiary of the estate CLINTON LARKAN
Third Defendant
FREDERICK ALBERT LARKAN BENEFICIARY OF THE ESTATE CLINTON LARKAN by guardian ad litem JAMES PAUL GORTON
Fourth Defendant
ERICK JOHN LARKAN beneficiary of the estate CLINTON LARKAN
Fifth Defendant
DONALD JAMES LARKAN beneficiary of the estate CLINTON LARKAN
Sixth Defendant
VICKY GORTON beneficiary of the estate CLINTON LARKAN
Seventh Defendant

Catchwords:

Family Provision Act 1971 (WA) - Application for extension of time - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Leave granted

Category: B

Representation:

Counsel:

First Plaintiff	:	VL Mountain & N Milosevic
Second Plaintiff	:	VL Mountain & N Milosevic
Third Plaintiff	:	VL Mountain & N Milosevic
First Defendant	:	PJ Hannan & EBB Ryan
Second Defendant	:	JM Binstead
Third Defendant	:	JM Binstead
Fourth Defendant	:	JM Binstead
Fifth Defendant	:	JM Binstead
Sixth Defendant	:	JM Binstead
Seventh Defendant	:	JM Binstead

Solicitors:

First Plaintiff	:	Mountains Lawyers
Second Plaintiff	:	Mountains Lawyers
Third Plaintiff	:	Mountains Lawyers
First Defendant	:	Butlers Lawyers & Notaries
Second Defendant	:	Durey Legal
Third Defendant	:	Durey Legal
Fourth Defendant	:	Durey Legal
Fifth Defendant	:	Durey Legal
Sixth Defendant	:	Durey Legal
Seventh Defendant	:	Durey Legal

Cases referred to in decision:

Ancell v Dawes [2016] WASC 402
Andre v Perpetual Trustees WA Ltd [2009] WASCA 14
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
Drake v Bradshaw [2018] WASCA 78
Grigoriou v Nitsos [1999] WASCA 42
Lodin v Lodin [2017] NSWCA 327
O'Shaughnessy v Mantle (1986) 7 NSWLR 143
Re Salmon, Deceased [1981] Ch 167
Scott v Scott [2009] NSWSC 567
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wheatley v Wheatley [2018] WASCA 34

STRK J:

Introduction

All but one of the parties to this proceeding share the same surname. In these reasons, I refer to the parties by their first name and I refer to the late Clinton Larkan as the deceased. I do so for convenience and to avoid confusion. No disrespect is intended.
The deceased was diagnosed with lung cancer in about July 2019 and died on 1 December 2019, having executed a will on 12 August 2019. Under the terms of the will, the deceased appointed his brother, Timothy, as executor. Probate was granted on 7 January 2020.
By his will, the deceased made provision for his children, William and Ryan, and for Kylie‑Anne Whittem. Ms Whittem was named as the deceased's de facto partner in his death certificate. The deceased also made provision for his parents (Hendrina and Frederick) and surviving siblings (Timothy, Erick, Donald and Vicky).
William and Ryan are the sons of the deceased and Diane. While the deceased and Diane were married as at the date of the deceased's death, they had been separated for a considerable period. The deceased made no provision for Diane under his will.
An application for provision out of the estate of any deceased person may be made under the Family Provision Act 1972 (WA) by or on behalf of persons falling within prescribed categories. However, the Family Provision Act provides that no such application shall be heard by the court unless the application is made within six months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time. A motion for leave to file out of time may be made at any time, notwithstanding that the six-month period has expired.[1]
[1] Family Provision Act s 7.
No application for provision out of the estate of the deceased under the Family Provision Act was made within time by or on behalf of Diane, William or Ryan.
By an application filed on 27 January 2021, Diane, William and Ryan sought leave to file out of time their application for provision out of the estate of the deceased. Unless by this proceeding leave to commence an application out of time is granted, they will be unable to bring an application pursuant to the Family Provision Act s 6(1) for provision from the estate of the deceased.
For the reasons set out below, I am satisfied that the justice of the case requires that each of Diane, William and Ryan be given leave to file out of time.

Applicable principles

Standing

As noted above, the Family Provision Act s 6 empowers the court in defined circumstances to order that provision be made out of the estate of a deceased person to persons falling within prescribed categories. Section 7(1) identifies categories of persons by or on behalf of whom an application under s 6(1) may be made. These categories include a person who was married to the deceased immediately before the death of the deceased;[2] and a child of the deceased living at the date of the death of the deceased or born within 10 months after the deceased's death.[3] A person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court or to an agreement or otherwise, also has standing to apply.[4]

The discretion

[2] Family Provision Act s 7(1)(a).

[3] Family Provision Act s 7(1)(c).

[4] Family Provision Act s 7(1)(b).

In Wheatley v Wheatley [2018] WASCA 34 [54] ‑ [63], the Court of Appeal summarised the principles to be applied in determining an application to extend time, and I applied the same in determining this application.
As was accepted in Wheatley, the time limit provided by s 7(2)(a) is not a mere procedural limit. No application under s 7(1) shall be heard by the court unless the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.[5] It is incumbent upon an applicant to make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.[6] After six months, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to the will.[7]
[5] Family Provision Act s 7(2)(b).
[6] Wheatley v Wheatley [54], referring to Re Salmon, Deceased [1981] Ch 167, 175, quoted in Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 [39] and Clayton v Aust (1993) 9 WAR 364, 366 - 367.
[7] Andre v Perpetual Trustees WA Ltd [38], quoted in Wheatley [54].
As was observed in Wheatley, the Court of Appeal in Clayton v Aust, with reference to the decision of Megarry VC in Re Salmon, Deceased, 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:[8]
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 including the reasons for delay and the promptitude with which the 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. (Footnotes omitted)
[8] Wheatley [56], discussing Clayton v Aust (366 ‑ 367) and Re Salmon, Deceased (175 - 177).
In Wheatley, the Court of Appeal further noted:
[57]As Mitchell J observed in Craig v Craig, in relation to the second of those guidelines, in Clayton:
The factor which Malcolm CJ saw as relevant was 'has the applicant got an arguable case on the merits?'.
In Clayton the master had concluded that the case of the appellant was 'weak on the merits or barely arguable'. This conclusion was reached on the basis that a conflict of evidence on affidavits was likely to be resolved against the appellant in that case. The master was found to have erred in adopting this approach in a situation where the evidence in the competing affidavits had not been tested by cross-examination, and in approaching the matter on the basis that the appellant's case was weak or barely arguable.
[58]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.
[59]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.
[60]The claimant's lack of knowledge of the size and extent of the testator's estate, which is not caused or contributed to by any fault of the claimant, may be a factor favourable to the applicant in the exercise of discretion to extend time: Re Nassim (Dec). In that case, the trustees of the estate had, in effect, concealed those matters from the applicant. Other matters that have weighed in favour of the applicant in relation to the exercise of discretion to extend time in a similar context include a reasonable misapprehension by the claimant as to the extent of her interest under the will, and the claimant's financial inability to undertake proceedings. (Footnotes omitted)
When considering the reasons for delay, it was observed in Wheatley that:
[62]A claimant's ignorance of their rights under the legislation has also been regarded, in appropriate circumstances, as a factor tending in favour of the exercise of discretion. In Re Walker (Dec), the court referred to the claimant's ignorance of his rights, his youth and his inexperience in rejecting a submission that the claimant should have taken positive steps to ascertain his rights at an earlier point in time. In that case, Lush J also observed:
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.
[63]On the other hand, where the claimant has been aware of his or her rights under the legislation, but merely unaware of the time limits, this has been held not, in itself, to be a sufficient ground for granting an extension of time. Also, the discretion has not been exercised in favour of a claimant who, knowing of her rights, chose for some reason satisfactory to her at the time not to exercise them, and some years afterwards, when her circumstances changed, sought an extension of time. (Footnotes omitted).
The applicant must persuade the court that the justice of the case, having regard to all relevant facts and circumstances and not merely those applicable to the applicant, require that they be given an extension of time.[9] Justice demands that a decision be made on all the relevant facts.[10]
[9] Drake v Bradshaw [2018] WASCA 78 [60]; Grigoriou v Nitsos [1999] WASCA 42 [16].
[10] Grigoriou v Nitsos [20].

The parties

Diane, William and Ryan are represented by the same firm of solicitors, Mountains Lawyers.
William was born on 18 December 2002. He was 18 years old when the application was filed. Ryan was born on 29 December 2004 and was 16 years old when this application was filed. Ryan's maternal grandmother, Judith Bell, consented to act as Ryan's next friend in respect of this proceeding. Ryan, having attained the age of 16 years, consented to Ms Bell so acting.
Timothy is joined to the proceeding as the first defendant in his capacity as executor of the deceased's will. He is represented in his capacity as executor by Butlers Lawyers. He was previously represented by Byford Legal.
Timothy is also joined to the proceeding as a defendant in his capacity as a beneficiary of the deceased's estate, as are Hendrina, Frederick, Erick, Donald and Vicky. All have common representation by the firm Ryan and Durey Solicitors and oppose the application.
By an order made on 13 April 2021, James Paul Gorton (Vicky's husband and Frederick's son in law) was appointed as guardian ad litem of Frederick in respect of this proceeding. Frederick has Parkinson's Disease and is incapable of managing his affairs in respect of the proceeding.
As the plaintiffs do not seek to disturb the bequest made to Ms Whittem, she has not been joined to the proceeding.

The evidence

At the hearing of the application, counsel for the plaintiffs read seven affidavits.[11]
[11] ts 16 - 17 (20 July 2021).
The first was the affidavit of Diane affirmed on 24 January 2021 and attached documents marked DL1 to DL24. In her first affidavit Diane deposed to her being the widow of the deceased and the surviving parent of William and Ryan. She also deposed to the assessment made by the Child Support Agency for the period 1 September 2019 to 30 November 2020 dated 17 July 2019 which concerned William and Ryan and the child support amount to be paid by the deceased in that period. She explained that the assessment was made before the deceased was forced to retire due to his medical condition. She further described the circumstances giving rise to her delay in making a claim under the Family Provision Act, and her own financial circumstances.
The attachments to Diane's first affidavit included the Child Support Agency assessment dated 17 July 2019; various communications, including correspondence as between the parties' legal representatives prior to the commencement of this proceeding; and documents concerning Diane's financial circumstances. There is a discrepancy in the identification of attachments in the index of the affidavit and the marking of the attachments on the one hand, and the description of the attachments in the body of the affidavit on the other. In these reasons, I have identified the attachments as referenced in the index and marked.
The second was the affidavit of William affirmed on 24 January 2021, to which he attached a document marked WTL1. Among other things, William deposed that prior to 18 December 2020, he was a minor and at his request, Diane had conducted all negotiations with Timothy as the executor of his father's estate, and the law firms engaged by Timothy. As to delay, William referred to Diane's evidence. He also deposed to his own financial circumstances and goals, and his anticipated expenses for 2021.
The third was the affidavit of Judith Bell, Ryan's next friend, affirmed on 24 January 2021, to which she attached a document marked JAB1. As to delay, Ms Bell referred to Diane's evidence. She also deposed to Ryan's financial circumstances and goals. Ms Bell attached to her affidavit Ryan's written consent to Ms Bell acting as his next friend in this proceeding.
The fourth was a second affidavit of Diane affirmed on 20 June 2021, in which Diane responded to parts of the affidavit made by Timothy in his capacity as executor sworn on 24 May 2021 (which affidavit is referred to below).[12] Diane attached to her second affidavit documents marked DL1 to DL6, which included screen shots of various text messages and a table in which Diane particularised her assets, liabilities, income and expenses.
[12] Pars 6 and 7 of Diane's second affidavit were not read: ts 19 (20 July 2021).
The fifth was the second affidavit of William affirmed on 20 June 2021, by which William responded to parts of the affidavit made by Timothy as executor sworn on 24 May 2021. William also attached to his second affidavit marked WTL1 a table in which he described his assets, liabilities, income and expenses.
The sixth was the second affidavit of Ms Bell affirmed on 20 June 2021, by which she responded to parts of the affidavit made by Timothy as executor sworn on 24 May 2021.
The seventh was the affidavit of Vicki Lee Mountain, solicitor for the plaintiffs, affirmed on 22 June 2021, and to which was attached documents marked VLM1 to VLM3. Ms Mountain attached to her affidavit a statement of assets and liabilities for the deceased's estate received from Butlers Lawyers on 18 January 2021; a copy of a letter dated 13 September 2019 issued to the deceased from Cbus Trustee United Super Pty Ltd, which had been received from Butlers Lawyers with their letter dated 28 July 2020; and a copy of the executor's plan for distribution received from Butlers Lawyers on 21 January 2021.
At the hearing, counsel for the plaintiffs also relied upon a written outline of submissions filed on 23 June 2021.
Counsel for Timothy, in his capacity as executor, read eight affidavits.[13] The same affidavits were read and relied upon by counsel for all of the defendant beneficiaries.[14]
[13] ts 20 ‑ 21 (20 July 2021).
[14] ts 24 (20 July 2021).

The first was Timothy's affidavit sworn on 24 May 2021, made in his capacity as executor and to which he attached documents marked TL1 to TL21. Paragraphs 14 ‑ 16 and the document marked TL2 of that affidavit were not read.[15] Timothy attached to his affidavit a copy of the deceased's will. He also described among other things Timothy's conversations with the deceased as to the deceased's wishes; the distributions of the deceased's estate that had been made as at the date of his affidavit; the financial position of the estate; events and conversations that had taken place from the grant of probate to the commencement of this proceeding; Diane's delay in bringing a claim in her own right; the deceased's relationship with Diane; the status of the proceeding as between the deceased and Diane in the Family Court of Western Australia; and the deceased's relationship with William and Ryan. Timothy also responded to parts of the affidavit of Diane affirmed on 24 January 2021; the affidavit of William affirmed on 24 January 2021; and Ms Bell's affidavit affirmed on 24 January 2021.
[15] ts 21 (20 July 2021).
The second was the affidavit made by Timothy as beneficiary under the will. The affidavit was sworn on 1 June 2021 and attached a document marked TL1. In his second affidavit, Timothy deposed to his personal circumstances including his financial position. The document attached was a schedule setting out the joint assets, liabilities, income and expenses of Timothy and his wife Stacey.
The third was the affidavit made by Hendrina sworn on 2 June 2021. Hendrina deposed to her relationship with the deceased and to her personal circumstances, including her financial position. Hendrina attached to her affidavit two documents marked HL1 and HL2. The first was a schedule in which Hendrina described her assets, liabilities, income and expenses. The second was a copy of the grant of probate made on 7 January 2020 to Timothy as executor of the deceased's will.
The fourth was the affidavit made by Mr Gorton, Frederick's guardian ad litem, sworn on 28 May 2021. Mr Gorton deposed to Frederick's personal circumstances, including his Parkinson's Disease diagnosis; the assistance he requires; his financial position and his needs. Mr Gorton attached to his affidavit a document marked JPG1, being a schedule in which he described Frederick's assets, liabilities, income and expenses.
The fifth was the affidavit made by Erick, sworn on 3 June 2021. In his affidavit, Erick deposed to his personal circumstances, including his health and financial position. Erick attached to his affidavit a document marked EJL1, being a schedule in which he described his assets, liabilities, income and expenses.
The sixth was the affidavit made by Donald sworn on 3 June 2021. Donald deposed to his personal circumstances, including his financial position. Donald attached to his affidavit a document marked DJL1, being a schedule in which he described his assets, liabilities, income and expenses.
The seventh was the affidavit made by Jacinta Marie Binstead, solicitor for the defendant beneficiaries, sworn on 26 March 2021. Attached to Ms Binstead's affidavit were three documents marked JMB1 to JMB3. The affidavit was made in support of the application for the appointment of a guardian ad litem of Frederick pursuant to the Rules of the Supreme Court 1971 (WA) O 70 r 3(6). The documents attached to Ms Binstead's affidavit concern Frederick's diagnosis of Parkinson's Disease, his capacity to participate in this proceeding and to provide instructions.
The eighth was the affidavit of Stacey, sworn on 22 June 2021 and to which she attached documents marked SL1 and SL2. Stacey is married to Timothy and is not a party to this proceeding. In her affidavit Stacey deposed to certain communications with Diane and William.
While joined as the seventh defendant, no affidavit was made by Vicky, nor was there any evidence of her personal or financial circumstances before the court.
Written outlines of submissions were filed on behalf of Timothy as executor in opposition to the application on 23 June 2021, and on behalf of the defendant beneficiaries on 6 July 2021. The outlines were relied upon for the purposes of the hearing.

The terms of the will

Annexed to Timothy's affidavit sworn on 24 May 2021 is a copy of the will made by the deceased on 12 August 2019. Relevant to this application, I note as follows.
The will contained a declaration concerning Diane in the following terms:
2)DECLARATION
I DECLARE I make no provision in this will for Diane Marie Larkan is [sic] we have been separated since 2013, have settled our matrimonial property and intend to divorce. Under no circumstances shall she inherit from me or take any benefit under this will as a result of my death.
I understand that as at the date of the deceased's death, the deceased was the registered proprietor of a property known as 23 Helen Crescent, Byford. As to that property, the deceased made a specific bequest in his will in the following terms:
4) REAL ESTATE
a)I GIVE all of my estate and interest in 23 Helen Crescent, Byford in Western Australia, free from encumbrances to my executor upon trust to transfer to Kylie-Anne Whittem at the then market value reduced by $100,000.00.
b)The amount paid to my estate by the said Kylie-Anne Whittem shall fall into and form part of my residuary estate.
c)in the event that Kylie-Anne Whittem does not within 6 months following my death purchase the property from my estate the property shall be sold, my executor shall pay to Kylie-Anne Whittem the sum of $100,000.00 and the balance of the net sale proceeds shall fall into and form part of my residuary estate.
As to superannuation death benefits, the deceased made the following specific bequest in his will:
5) SUPERANNUATION DEATH BENEFITS
IF death benefits are paid or payable as a result of my death I DIRECT that such death benefits shall be paid in accordance with my last valid nomination or if there is no such nomination in place then to my legal personal representative as follows:
a)100.00% of my death benefits to William Troy Larkan and Ryan James Larkan.
As to the residuary of his estate, the deceased's will included the following provision:
6) RESIDUARY ESTATE
I GIVE all of my real and personal property wherever situated to my executor UPON TRUST:
a)to pay all of my just debts, funeral and testamentary expenses and the expenses incurred in the execution of the trusts contained in this will.
b)to HOLD an amount equal to 55.00% of my residuary estate (reduced by any superannuation death benefits received or paid to William Troy Larkan and Ryan James Larkan) on trust for my sons William Troy Larkan and Ryan James Larkan who survive me to attain the ages of 30 years and if more than one survive me to attain that age then in equal shares between them;
c)to PAY or TRANSFER the balance of my residuary estate to my parents and natural siblings who survive me and if more than one in equal shares between them.
By the will, the deceased granted to the executor powers which included the following:
7)TRUSTEES POWERS
…
e)to apply the whole or any part of the income and capital of the vested or contingent share of any beneficiary toward the maintenance, education, medical needs, evolving needs, welfare, advancement, benefit or support of such beneficiary; and
f)my Executor shall also have the power to pay amounts to a parent or legal guardian of a beneficiary from the share of that beneficiary provided the payment is for the beneficiaries maintenance, education, medical needs, evolving needs, welfare, advancement, benefit or support.

The deceased's estate

The estate of the deceased is a modest one, from which there has been some distribution.

Statement of assets and liabilities prepared for the purpose of securing probate

A copy of the statement of assets and liabilities prepared by Timothy for the purpose of securing a grant of probate was provided to the solicitors for the plaintiffs on 18 January 2021.[16] In that statement, Timothy estimated that as at the date of the deceased's death, the total value of the deceased's estate was $312,333,88.
[16] Third affidavit of VL Mountain, VLM1.
In that statement, Timothy recorded that the deceased held total assets in Western Australia in the amount of $576,101.50, which was comprised of cash at bank in the amount of $251,101, and the property known as 23 Helen Crescent, Byford, which he attributed a value of $325,000.
In that statement, Timothy recorded that the deceased had total debts in the amount of $263,767.12. The deceased owed $245,000 secured by mortgage over 23 Helen Crescent, Byford; $14,500 to Ms Whittem; $267.12 for various insurance; and $4,000 by way of mechanic costs.

Superannuation death benefits

Timothy deposed that prior to his death, the deceased caused his superannuation and death benefits to be paid out to the deceased.[17] In this regard, Ms Mountain attached to her affidavit a copy of a letter dated 13 September 2019 issued to the deceased from Cbus Trustee United Super Pty Ltd, which she says she received from Byford Legal (solicitors for Timothy as executor), by their letter dated 28 July 2020.[18] The letter references the deceased's membership number, states that payment of $314,364.39 was paid to the deceased's nominated account, and states that the deceased's Cbus account had been closed.

23 Helen Crescent, Byford

[17] First affidavit of T Larkan, par 20; First affidavit of D Larkan, par 27(b), DL14. See also ts 18, 63 (20 July 2021).

[18] Third affidavit of VL Mountain, VLM2.

I understand that after the grant of probate, the deceased's property known as 23 Helen Crescent, Byford was transferred to Ms Whittem by Timothy as executor on 28 August 2020.[19] Under the terms of the will, the property was to be transferred for the then market value, less $100,000.
[19] ts 7 (13 April 2021); First affidavit of T Larkan, par 21, TL4.
The property was transferred to Ms Whittem for $190,000. After adjustments for rates and taxes, the estate received $188,699.51, together with a small refund in settlement fees.
The plaintiffs raise questions as to the value ascribed to the property by the executor and whether it was transferred for market value.[20] However, as Diane, William and Ryan do not seek to disturb the gift of $100,000 to Ms Whittem,[21] Ms Whittem was not joined as a defendant to this proceeding.

Value of the estate as at 20 May 2021

[20] Plaintiffs' submissions, par 2.2.2.1 and 2.2.2.2; First affidavit of D Larkan, par 20, DL4; Second affidavit of D Larkan, par 15; First affidavit of T Larkan, TL12 and TL14.

[21] ts 7 (13 April 2021).

Timothy also prepared a statement of assets and liabilities of the estate as at 20 May 2021.[22] In his affidavit made on 24 May 2021, Timothy recorded that the deceased also held upon his death two vehicles (a Nissan Pathfinder and a Ford Fairmont), and a motorcycle (Yamaha 450). These assets were not included in the statement of assets and liabilities prepared for the purpose of the application for the grant of probate.
[22] First affidavit of T Larkan, par 26, TL6.
Timothy deposed that the value of the estate as at 20 May 2021 was $390,531, although he noted that he anticipated that the value would reduce by expenses incurred by the estate until administration of the estate was concluded. As at 20 May 2021, $379,531.18 was held as cash at bank, and a value of $11,000 was attributed to the deceased's vehicles and motorbike.

Interim distributions and proposed distributions

Timothy deposed to having made distributions from the estate to William and Ryan.
He says that on 18 December 2019 he delivered the Nissan Navarra to William.[23] He also says that between 21 February 2020 and 22 October 2020, he made distributions to William in the total amount of $4,220 and to Ryan in the total amount of $2,200. Timothy says that in addition, he made payment of $4,008 for repairs to the vehicle that the deceased had purchased for William. (It is not clear from the affidavits filed whether this was an amount additional to the debt owed by the deceased of $4,000 recorded by Timothy in the statement of assets and liabilities prepared for the purposes of securing probate.)[24]
[23] First affidavit of T Larkan, par 33.
[24] See also the first affidavit of WT Larkan, par 11.
Timothy deposed that upon obtaining the grant of probate, he established a trust into which he intended to transfer 55% of the deceased's residuary estate.[25] He estimated that under the terms of the deceased's will, provision was made for William and Ryan of $207,190. In addition to the amounts already distributed to William and Ryan, Timothy estimated that a further $196,762 would be held by him on trust for William and Ryan.[26]
[25] First affidavit of T Larkan, par 18(a), TL3.
[26] First affidavit of T Larkan, par 28, TL6.
Timothy estimated that as a beneficiary under the deceased's will, he would receive approximately $27,628 and that he would retain a box trailer worth about $750.[27]
[27] First affidavit of T Larkan, par 29(a), TL6.
Timothy also estimated the other defendant beneficiaries would each receive approximately $28,378.[28]
[28] First affidavit of T Larkan, par 29(b), TL6.
The deceased's home in Byford was transferred to Ms Whittem for an amount which I understood was to be reduced by $100,000. The proceeds of sale of the Byford property ($188,850) were paid to the deceased's estate.
Diane complains that despite many requests, Timothy has not provided full and transparent details as to the distributions made from the estate.[29]
[29] Second affidavit of D Larkan, par 45.

Diane's position

Diane deposed that she and the deceased separated in 2013, having been in a relationship for 14 years and married for 9 years.[30] Diane and the deceased never divorced.
[30] Second affidavit of D Larkan, par 23.
Prior to their separation, Diane and the deceased had resided in a property in Casuarina with William and Ryan.[31] The Casuarina property was sold in July 2015. $400,000 was realised as net proceeds of that sale. Diane deposed that in about September 2016, she and the deceased came to agree a final property settlement. Orders were made by the Family Court of Western Australia by the consent of Diane and the deceased on 23 September 2016.[32]
[31] Second affidavit of D Larkan, par 23.
[32] First affidavit of T Larkan, par 74, TL19.
Diane received $220,000 from the sale of the Casuarina property, which she used to purchase her current residence in Baldivis and where she still resides with William and Ryan. The deceased received $180,000 from the sale of the Casuarina property which was used to purchase the property at 23 Helen Crescent, Byford in August 2016 for $335,000.
Diane deposed that she remained the primary carer for William and Ryan after separating from the deceased, and the deceased made payments as assessed by the Child Support Agency. She deposed that the amount paid by the deceased by way of child support varied depending upon the deceased's assessable income each year. The assessment dated 17 July 2019 was the last assessment made based on the deceased's income before his forced retirement due to his ill health. By that assessment the deceased was to pay $1,807.50 each month by way of child support, commencing on 1 September 2019.[33] There is no evidence of there having been a maintenance order made in favour of Diane.
[33] First affidavit of D Larkan, par 7, DL1.
Diane deposed that in addition to child support payments, the deceased would often deliver to her home extra bags of shopping and would provide William and Ryan with generous amounts of 'pocket money', providing them with 'extras' additional to the accommodation and necessities provided by Diane. The amount varied between $200 and $500 each month for each of the children.[34]
[34] Second affidavit of D Larkan, pars 37 and 38.
As to her relationship with the deceased, Diane deposed that that she was the primary carer for the children both before and after her separation from the deceased. It was Diane's evidence that she encouraged the children and the deceased to maintain a meaningful relationship after she and the deceased had separated.[35] Further, she deposed that it may have been uncomfortable during the early part of their separation, however she and the deceased resumed an amicable relationship in which they supported each other.[36] Diane's evidence in this regard is challenged by Timothy in his capacity as executor.[37]
[35] Second affidavit of D Larkan, par 31.
[36] Second affidavit of D Larkan, par 32.
[37] First affidavit of T Larkan, par 72.
Upon the deceased's retirement in July 2019 due to ill-health, his income (other than a pension) was reduced to nil. The Child Support Agency reassessed the deceased's income for the period 31 July 2019 to 30 July 2020 based on an annual pension income of $14,704. The assessment which took effect from 31 July 2019 required the deceased to pay $35.58 per month by way of ongoing child support. Diane deposed that the deceased paid $730 by way of child support on 9 September 2019, and otherwise continued to support his children financially and with food parcels.[38]

Financial position

[38] Second affidavit of D Larkan, par 40.

Diane deposed that as at the date of her first affidavit, her income was not sufficient to meet the mortgage obligations on her Baldivis residence and to pay for basic necessities such as food, clothing and medical needs in the absence of the child support payments and other support that had been provided by the deceased prior to his death.
As at the date of her first affidavit, Diane deposed that she had $7.87 in her salary savings account and no other savings; a credit card debt of $11,000; and that she was $291.26 in arrears on her home loan. As at the date of her first affidavit, Diane was indebted in the amount of $257,618. She assessed her and her sons' average monthly living expenses to be $3,466 per month, but anticipated that expenses would shortly increase to an amount above $4,000 per month. As at that date, Diane's current net monthly wage and family benefit payment was $3,354.50.
If leave is obtained, I understand that Diane intends to seek an amount from the deceased's residuary estate equal to the amount the deceased would have continued to pay to her as the primary carer of their children, for their maintenance, education, medical needs, evolving needs, welfare, advancement, benefit and support, had he not been stricken down with cancer and died in 2019. Counsel indicated that the amount Diane would seek would be $50,000.[39]
[39] Plaintiffs' submissions, par 3.2; ts 30 (20 July 2021).
I understood from the written submission filed on behalf of Diane that she would not seek for her claim to be met by moneys that counsel for the plaintiffs submitted should otherwise be distributed to William and Ryan, which I understood to be the value of the superannuation death benefits and then 55% of the remainder of the residuary estate.[40] That is, Diane would seek for her claim to be met from the balance of the deceased's residuary estate that had otherwise been bequeathed to the defendant beneficiaries.

Delay

[40] Plaintiffs' submissions, par 3.5.

Diane accepted that she did not make an application under the Family Provision Act within time. In her affidavits, Diane deposed to the enquires she made from the Timothy as executor from about a fortnight after the deceased died, and the steps taken by Diane prior to filing this application in January 2021.
Diane deposed that from as early as 14 December 2019, she sought to obtain a copy of the deceased's will from Timothy, which request was refused.[41] He sent her a text message that said 'the Will is in a safe place at moment u will get copy fro pro bate soon' [sic].
[41] First affidavit of D Larkan, par 8.

Diane deposed that in mid‑January 2021 Timothy informed her that he expected probate to be granted within three to four weeks. Despite this, Diane complains that Timothy did not inform her when the grant was made and he did not provide he with a copy of the same.
Diane deposed that a copy of the deceased's will was provided to each of her sons in or about 14 February 2020. (There is conflict in the evidence of Diane and of Timothy and Stacey in this regard.)
On 28 May 2020, Diane wrote to Timothy as legal guardian of William and Ryan, seeking clarity regarding the estate and proposed distributions. In that communication, a request for information was made by Diane of Timothy in the following terms:[42]
Since [William and Ryan] are feeling 'left in the dark' I am requesting all documentations, being any documents and all documents that the Beneficiaries and Legal Guardian are entitled to by law. This includes anything that relates to their interest in the Estate, including anything that has already been disposed of or retained by other persons. This also includes any trust documents to which they are entitled, or that their Legal Guardian is entitled to, prior to distribution of the Estate.
[42] First affidavit of D Larkan, par 16, DL3.
Diane deposed that by late June 2020, she had received no response to her letter dated 28 May 2020 from Timothy and sought legal advice. She deposed that she took this step as a 'last resort' as she could not afford legal fees, which she ultimately paid for on her credit card and, as at the date of her first affidavit, was still paying off.[43]
[43] First affidavit of D Larkan, par 18.
Diane deposed that on 3 July 2020, she instructed Mountains Lawyers to write to Timothy and request a copy of the grant of probate and information regarding the assets and liabilities of the deceased's estate. By that letter, Mountains Lawyers advised Timothy of Diane's belief that probate had been granted in mid‑February 2020 and put him on notice of potential claims against the estate, which included a claim for maintenance and support of William and Ryan commensurate with payments assessed by the Child Support Agency on 17 July 2019, and a potential claim on behalf of William and Ryan under the Family Provision Act.[44] Mountains Lawyers requested Timothy's response at his earliest convenience but in any event within 14 days of the date of that letter.
[44] First affidavit of D Larkan, par 20, DL4.
Diane also instructed Mountains Lawyers to undertake a probate search, and on 10 July 2020 Diane was advised by Mountains Lawyers that probate had been granted to Timothy on 7 January 2020.[45]
[45] First affidavit of D Larkan, par 22, DL5.
On 13 July 2020, Diane instructed Mountains Lawyers to again write to Timothy, seeking to expedite receipt of a response from him to the correspondence issued on 3 July 2020. The email communication sent by Mountains Lawyers to Timothy states, among other things:[46]
Noting the grant for administration of the estate was made to you on 7 January 2020 and not February 2020 as originally thought by our client we need to expedite a decision as to whether to commence a claim.
[46] First affidavit of D Larkan, par 23, DL6.
On 13 July 2020, Mountains Lawyers received an email communication from Byford Legal. By that communication, Byford Legal confirmed they had a copy of the 3 July 2020 letter; that they would be seeing Timothy on Thursday, 16 July 2020; and that they envisaged that they would respond to Mountains Lawyers 'early next week'.[47]
[47] First affidavit of D Larkan, par 24, DL7.
As no substantive response was received from Byford Legal by 23 July 2020, Diane deposed that various communications were exchanged as between Mountains Lawyers and Byford Legal by which Mountains Lawyers pressed for the provision of information from Timothy.
A substantive response was received from Byford Legal on behalf of Timothy on 28 July 2020.[48] Upon receipt, Diane says that she instructed her representatives to arrange a conferral with Timothy and his legal representatives at the earliest opportunity. Diane deposed that upon receipt of the Byford Legal letter she was encouraged that the issues the subject of the 3 July 2020 correspondence might be able to be resolved without resort to legal action. No reference was made in the letter of 28 July 2020 to the six month time limit for making a claim prescribed in s 7(2) of the Family Provision Act.
[48] First affidavit of D Larkan, pars 26 and 27, DL13.
By an email communication sent on 24 August 2020, Mountains Lawyers sought a meeting between the parties on a without prejudice basis as soon as convenient after Byford Legal had met with their client, which Diane understood had been scheduled to take place on 2 September 2020. Conferral as between Diane, Timothy and their respective representatives took place on 2 October 2020.
Following that meeting, a letter was issued from Mountains Lawyers to Byford Legal on 9 October 2020 which contained the following statement:[49]
[49] First affidavit of D Larkan, par 33, DL16.
As outlined in our prior communications, in particular our letter of 3 July 2020, the purpose of the meeting was primarily to confer on the two major issues concerning the Will and the Estate:
1.How the Executor proposed meeting his obligations under clause 7 (f) of the Will to provide for the maintenance and support of the two sons William and Ryan; and
2.An adjustment to the percentage of the residual estate to provide adequate provision for the two sons
with the objective of reaching a resolution of those matters in preference to commencing a claim under the Family Provision Act 1972 (FPA).
…
So that we can advise our client please confirm whether your client will be addressing these issues in writing after his conferral with the other residual beneficiaries or whether he is proposing another in-person meeting. If another in-person meeting is proposed we suggested day and time set now to avoid any delays in convening and accordance with availability of the parties and their legal representatives.
We note the Executor was not able to provide a statement of the Estate's net assets as at the date of conferral but confirmed he had attended to the final tax return and would be able to provide an up to date statement. Please provide that statement to our office while we await the Executor's further conferral (written or in person) after consulting with the other residual beneficiaries.
Diane says that no response was received to the letter of 9 October 2020.
On 15 October 2020, Mountains Lawyers received an email from the firm Butlers Lawyers, by which they advised that they had instructions to act for Timothy as executor in replacement of Byford Legal. Among other things, Butlers Lawyers made reference to the six month time limit for making a claim prescribed in s 7(2) of the Family Provision Act, and stated as follows:[50]
In the event no Motion for leave to file out of time is made within 7 days of the date of this Letter, our clients intend to proceed with making distributions in accordance with the terms of the Will.
[50] First affidavit of D Larkan, par 35, DL17.
On 21 October 2020, within the seven days referenced by Butlers Lawyers, Mountains Lawyers filed an originating motion to extend time under the Family Provision Act. By letter dated 23 October 2020, the court advised Mountains Lawyers that the application had been made by the wrong process, and it was to be made by originating summons.[51]
[51] First affidavit of D Larkan, pars 36 - 39, DL18 - DL20.
On 26 October 2020, Mountains Lawyers commenced proceedings on behalf of William and Ryan by their next friend Diane, known as CIV 2073 of 2020. Again, the documents filed by Mountains Lawyers were not compliant. The proceeding known as CIV 2073 of 2020 was adjourned sine die by order of the court made on 1 December 2020.[52]
[52] First affidavit of D Larkan, par 40.
Diane says that following the directions hearing on 1 December 2020, a request was made for an update on the position of the deceased's estate to the solicitor acting for Timothy as executor.[53] Diane understood that it had been requested that the information be provided for consideration prior to the requirement for filing any further affidavits. (This is challenged by Timothy in his first affidavit.)[54]
[53] First affidavit of D Larkan, par 42.
[54] First affidavit of T Larkan, par 87.
Diane deposed that after the directions hearing on 1 December 2020, she was advised by Mountains Lawyers that she also had a claim against the estate of the deceased; and as William would turn 18 on 18 December 2020, it would be best to file an originating summons for leave after he had turned 18, which would also give Timothy time to provide the requested update as to the net position of the estate.
On 21 January 2021, Timothy provided the requested information as to the assets and liabilities of the estate, and the number and names of residual beneficiaries and the plan for distribution.[55]
[55] First affidavit of D Larkan, pars 46 ‑ 47, DL24.
A compliant process was commenced on behalf of Diane, William and Ryan on 27 January 2021. Diane deposed that Mountains Lawyers continued to be retained to minimise the costs of engaging separate representation.[56] At the hearing of the application, Ms Mountain confirmed that Diane, William and Ryan had been advised to seek independent advice.[57]
[56] First affidavit of D Larkan, par 45.
[57] ts 39 (20 July 2021).

William's position

William was 16 years of age when his father died and is now over 18 years of age.
As to his relationship with the deceased, William described his relationship with his father as a loving one. (This is challenged by Timothy in his first affidavit.)[58]
[58] First affidavit of T Larkan, par 79.
As to the delay in commencing this proceeding, William deposed that before 18 December 2020, as he was a minor, at his request Diane had conducted all negotiations with Timothy as executor of his father's will, and later with the solicitors engaged by Timothy.[59]
[59] First affidavit of WT Larkan, pars 3 and 4.
William deposed to being enrolled in a Diploma of Engineering course through Curtin College. Stages 1 and 2 of the Diploma take two years to complete.
William's goal is to complete the Diploma, which will enable him to enter the second year of the Curtin University Electrical Engineering degree. By entering in the second year, the degree can be completed in three years. To achieve his goal, William deposed that he would be studying full‑time until the end of 2025.
William described his intention to remain living with his mother until he finishes his Diploma at the end of 2023, but would like to consider shared rental accommodation for the following three years of University. He also hopes to be in a position to buy a house with his distribution from his father's estate.
William deposed that it was his father's wish that he and Ryan would each receive sufficient amount from his father's estate for a deposit on their first house purchase. He deposed to his belief that in 2025/2026 this would require $100,000 distribution from the estate for this purpose.
Further, to be in a position to buy a house, William said that he would require adequate provision from the estate to educate and maintain himself without incurring HECS and other debts, without diminishing the sum to be made available from the estate for the deposit for his house purchase.
William attached to his first affidavit a document titled 'Table of Anticipated Expenses for 2021 - William Troy Larkan'. William estimated his total anticipated expenses for 2021 to be $47,062.

Financial position

William deposed that he has only two assets, a bank account with a balance of $382 and a second-hand Nissan Navara worth approximately $3,000.[60]
[60] First affidavit of WT Larkan, par 5.
As to the vehicle, William deposed that the deceased purchased a second‑hand vehicle with the intention of repairing it to a roadworthy condition to gift to him for his 17^th birthday, but died before the project was completed. The vehicle was in the mechanic workshop for repair when the deceased died. William understands that the executor attended to the repairs, but does not have clarity as to whether his entitlement to receive a distribution under the will has been deducted by costs incurred by the executor in repairing the vehicle, which he did not agree be done.

Ryan's position

Ryan was 14 years of age when his father died.
Ms Bell, as his next friend, deposed to Ryan's relationship with the deceased, describing it as an extremely close one with shared interests.[61] (This was disputed by Timothy in his first affidavit.)[62]
[61] Second affidavit of J Bell, par 4.
[62] First affidavit of T Larkan, par 79.
Ms Bell described in her affidavit her observation of Ryan's reaction to his father's death. She described the loss of the deceased as having been devastating, and the loss as traumatic. She deposed that Ryan had been unable to complete his education or to work. As at the date of her second affidavit, Ms Bell deposed to Ryan having improved somewhat. She described Ryan's hopes to complete the Certificate 1 of Education which would allow him to enrol in a trade.
As to delay, Ms Bell deposed that prior to 18 December 2020, Diane had conducted all negotiations with Timothy and with the two law firms Timothy had engaged, in an attempt to resolve the issues that arose in relation to Ryan's distribution from his late father's estate. Ms Bell referred to the evidence of Diane as to the reasons for delay in a claim being made on behalf of Ryan.[63]

Financial position

[63] First affidavit of J Bell, pars 4 and 5.

Ms Bell, as his next friend, deposed to Ryan's financial circumstances. She deposed that as at the date of her first affidavit, Ryan had a bank account with zero balance and his only asset being a motorbike purchased for him by the deceased.
I understand that both William and Ryan seek from the estate a greater proportion than 55% of the residuary estate of the deceased. I understood that it was submitted on their behalf that the deceased had intended that they share between them the superannuation death benefits and 55% of the residuary estate.[64]
[64] Plaintiffs' submissions, pars 2.2.2.7 and 2.2.2.8.

Timothy's position

As executor

The executor opposes the grant of relief sought on behalf of Diane, William and Ryan in his capacity as executor and in his capacity as beneficiary under the deceased's will.
Timothy deposed to having applied for a grant of probate on 23 December 2019, and that on 20 January 2020 he received the grant that had been made by the court on 7 January 2020.[65] Timothy deposed to the deceased's wishes and to having established a trust into which he intended to pay 55% of the residuary estate; and that he had made interim distributions to and payments for the benefit of William and Ryan.[66]
[65] First affidavit of T Larkan, pars 30, 31, 32 and 83.
[66] First affidavit of T Larkan, pars 17 - 18, TL3.
He further deposed to having called in all of the deceased's estate and to having made partial distributions. The transfer of the deceased's home in Byford had completed and the sum of $188,850 had been paid to the estate. Timothy also deposed to having made partial distributions to William and Ryan;[67] he ascribed a value to the estate as at the date of his first affidavit, being about $390,531;[68] he quantified the provision made for William and Ryan (post transfer of the Byford property); and quantified the provision made for him and for each of the other defendant beneficiaries.[69]
[67] First affidavit of T Larkan, pars 22, TL4.
[68] First affidavit of T Larkan, pars 26 - 27, TL6.
[69] First affidavit of T Larkan, pars 28 - 29, TL6.
Timothy said that he had made regular distributions to each of William and Ryan, and that the estate paid for repairs to the motor vehicle (the Nissan Navara), until 22 October 2020, when he ceased at the request of Mountains Lawyers.[70]

Delay

[70] First affidavit of T Larkan, par 41.

In his first affidavit, Timothy described the correspondence that passed between Diane and him, and their respective representatives.[71]
[71] First affidavit of T Larkan, pars 33 - 52.
He deposed that he never led Diane to believe that the grant of probate had not been made until mid‑February 2020.[72]
[72] First affidavit of T Larkan, par 84(a).
He also described the proceeding commenced prior to this application (known as CIV 2073 of 2020), noting that Diane was not named as a plaintiff in her own right in that proceeding.[73] He deposed that between 3 July 2020 and 14 January 2021, neither Diane nor her legal representatives gave any indication that Diane intended to make a claim against the estate in her own right. He said that notice of Diane's claim was first made by letter dated 14 January 2021 from Mountains Lawyers to Butlers Lawyers.[74]
[73] First affidavit of T Larkan, pars 55 - 59.
[74] First affidavit of T Larkan, par 68, TL18.
Timothy further challenged Diane's evidence that a request had been made for an update on the position of the deceased's estate to his solicitor following the directions hearing on 1 December 2020.[75]

Relationships with the deceased

[75] First affidavit of T Larkan, par 87.

Timothy described in his affidavit the substance of conversations he and the deceased had had concerning the deceased's relationship with Diane, which he says the deceased described as not amicable.[76]
[76] First affidavit of T Larkan, par 72.
Timothy also annexed to his affidavit a copy of the final orders made by the Family Court of Western Australia on 23 September 2016 in the proceeding which concerned Diane and the deceased;[77] and copies of communications obtained from the file maintained by the Family Court of Western Australia.[78]
[77] First affidavit of T Larkan, par 74, TL19.
[78] First affidavit of T Larkan, par 76, TL20.
Timothy described the relationship of the deceased with his children, based on Timothy's conversations with the deceased and from his own observation, which he described as not being close nor loving.[79]
[79] First affidavit of T Larkan, par 79.
As to the deceased's obligation to pay child support for William and Ryan, Timothy annexed to his affidavit a child support assessment dated 31 July 2019 which provided that the amount payable by the deceased for his children for the assessment period 1 September 2019 to 30 June 2020 was $36.25 per month. The papers also disclose that based on the revised assessment, the deceased was 'in credit' in the amount of $74.62 as at 20 September 2019.[80]
[80] First affidavit of T Larkan, par 81, TL21.
Timothy provided an account of his communications with Diane and from pars 80 to 87 of his first affidavit responded to various matters deposed to in Diane's affidavit. Timothy also responded to the affidavits of William and Ms Bell.[81] It is not necessary to set out in full here all of Timothy's evidence. However, I note that I had regard to the same in determining the application.

Timothy's personal circumstances

[81] First affidavit of T Larkan, pars 88 - 92.

In his second affidavit, Timothy deposed to his personal circumstances.
Timothy is married to Stacey and they have three children. As at the date of his second affidavit, their children were aged 18, 17 and 9. All three children live with Timothy and Stacey and are financially dependent on them.
Timothy described himself as a self-employed business owner. He and Stacey operate an upholstery business, the net income of which was $55,188 in the financial year ending 30 June 2020. They also received Centrelink benefits and income from a rental property. Timothy and Stacey's combined annual income was $96,640 in that financial year. Timothy deposed that typically his and Stacey's income is completely exhausted after payment of their annual expenses, and from time to time, their expenditure exceeds their income, which they address by budgeting.

While Timothy and Stacey do have liabilities by way of a mortgage, credit card liability and rent, Timothy deposed that their assets exceed their liabilities by over $1,000,000.
Timothy described his and Stacey's annual expenses as including school fees and the other needs of their three children. He said that they have little by way of savings and limited financial ability to assist their children with their further education beyond high school.
As to Timothy's health, he deposed to having been diagnosed at 28 years of age with rheumatoid arthritis, for which he takes medication.
Timothy also deposed as follows:[82]
Having regard to our current financial position, the responsibility which Stacey and I share for our three children, our family's future financial needs, and the fluctuating impact which of the uncertainty in the economy is causing on small businesses like ours, a cash distribution from Clinton's estate of approximately $27,628 would be of real benefit to us.
[82] Second affidavit of T Larkan, par 10.

Hendrina's position

Hendrina described in her affidavit her relationship with the deceased as having been very close.
She deposed that in addition to the deceased having kept in regular contact with her, the deceased would always keep the front and back gardens neat and tidy and also do odd jobs around the house for her. Hendrina described the deceased as being very generous towards her, both with his time and his money. She also described conversations with the deceased in relation to the deceased's wishes.
As to her personal circumstances, Hendrina deposed that she is retired and currently receives a pension from Centrelink of $698 per fortnight.[83] Further, Hendrina deposed that she is the full-time carer for her husband, Frederick, who suffers from Parkinson's Disease. She and Frederick cannot afford private health cover. As Frederick's full-time carer, Hendrina receives an additional $129 per fortnight from Centrelink.
[83] Affidavit of H Larkan, par 6.
Hendrina annexed to her affidavit a schedule in which she described her personal assets, liabilities, income and expenses. Hendrina holds assets, which include her half share interest in her home, with a total value of $188,416.96, with no liabilities. Hendrina's annual expenses exceed her annual income by approximately $11,298.[84]
[84] Affidavit of H Larkan, par 8. HL1.
She deposed that from time to time and on an ad hoc basis, she receives financial assistance from her daughter and sons if they are in a position to financially assist her. She deposed that in the past, her daughter and sons have assisted her by paying her mobile telephone bill, home internet bill and by often delivering groceries and ready-made meals.
Hendrina also deposed as follows:[85]
Having regard to my current financial position and my inability to obtain employment in the future, a distribution from Clinton's estate of approximately $28,378 would make a significant impact on my life.
[85] Affidavit of H Larkan, par 14.

Frederick's position

As Frederick's guardian ad litem, Mr Gorton made an affidavit in this proceeding. Mr Gorton deposed that on 4 May 2018, Frederick was diagnosed with Parkinson's Disease. He said that since that diagnosis, there had been a progressive deterioration of Frederick's physical and mental health, such that Frederick now requires a full-time carer, which role is undertaken by Hendrina. Mr Gorton noted that it is foreseeable that in the future Frederick will need to move into a care facility or nursing home, which is likely to require a significant upfront payment of costs.
Mr Gorton deposed that presently, Frederick requires assistance with tasks including getting dressed, bathing, going to the toilet, taking his medication, food and beverage preparation, getting in and out of vehicles, putting on his seat belt, using the TV remote, getting up and down from the couch or chair, taking the rubbish out, closing the gate and other simple daily activities. Mr Gorton deposed that Frederick's medical specialists have recommended that he have weekly physiotherapy sessions, but those sessions have been cancelled because he is unable to afford them.
Frederick receives a pension from Centrelink in the amount of $691 per fortnight. Mr Gorton annexed to his affidavit a schedule in which he described Frederick's personal assets, liabilities, income and expenses.[86] Frederick holds assets, which include his half share interest in his home, with a total value of $223,545.70. He has no liabilities. Frederick's annual expenses exceeds his annual income by approximately $796.25.
[86] Affidavit of JP Gorton, par 7, JPG1.
Mr Gorton further deposed as follows:[87]
Having regard to Frederick's current financial position, his future medical and pharmaceutical needs, as well as anticipated future care needs, a distribution from Clinton's estate to Frederick of approximately $30,000 would significantly assist with the financial burden which Frederick is currently facing as a result of his medical conditions.
[87] Affidavit of JP Gorton, par 10.

Erick's position

In Erick's affidavit, he described his personal circumstances.
Erick deposed that he is not married and is not in a relationship. Erick has a son who is 27 years of age who lives with Erick. Erick says that he supports his son financially to the best of his ability.
Erick is employed on a fly in fly out roster as a rigger and earns an annual income of $77,759.
As to his health, Erick deposed that in November 2017, he was diagnosed with bladder cancer which affects him both mentally and physically. He says that he has numerous out-of-pocket medical expenses. Erick deposed to having minimal savings in the bank and very limited financial buffer should unexpected medical or other expenses arise.
Erick annexed to his affidavit a schedule in which he described his personal assets, liabilities, income and expenses.[88] Erick disclosed that he holds assets with an estimated value of $854,000, liabilities with an estimated value of $486,250, a net value estimated at $367,750. In the financial year ending 30 June 2020, Erick's income exceeded his estimated expenditure by net $37,905.
[88] Affidavit of EJ Larkan, par 6, EJL1.
Erick also deposed as follows:[89]
Having regard to my current financial position, the responsibility I have for my son, my significant mortgage liability and my future medical and pharmaceutical needs as a result of my cancer diagnosis, a distribution from Clinton's estate of approximately $28,378 would greatly assist me financially.
[89] Affidavit of EJ Larkan, par 8.

Donald's position

Donald deposed to his personal circumstances in the following terms.
Donald is not married nor in a de facto relationship. In October 2014, Donald and his former de facto of 26 years separated. From October 2014, Donald had sole custody of his daughter, who as at the date of his affidavit was 19 years old. His daughter continues to live with Donald and he supports her to the best of his ability.
As part of their financial settlement, Donald redrew on the mortgage against his home to 'pay out' his former partner. He is indebted in the amount of approximately $243,000, secured against his residence by mortgage.
Donald is employed as a storeman / driver and earns an annual income of $48,000. He deposed that his annual mortgage repayments and associated fees amount to approximately 33% of his annual income.
Donald deposed to having minimal savings, living from 'pay to pay', with no financial buffer should unexpected expenses arise. He deposed to receiving family assistance when he runs short of money. He receives meals from his mother two to three times a week, allowing him to cut back on his grocery bills.
Donald annexed to his affidavit a schedule in which he described his estimated personal assets, liabilities, income and expenses.[90] Donald holds assets with an estimated value of $506,456.32, liabilities with an estimated value of $243,000, a net value estimated at $263,456.32. In the financial year ending 30 June 2020, Erick's annual expenditure exceeded his estimated income by net $6,740.
[90] Affidavit of DJ Larkan, par 7, DJL1.
Donald also deposed as follows:[91]
Having regard to my earning capacity, my significant mortgage liability and the responsibility I have to provide for my daughter, a distribution from Clinton's estate of approximately $28,378 would make a significant positive financial impact on my life.
[91] Affidavit of DJ Larkan, par 10.

Vicky's position

As noted above, while Vicky is named as a defendant in this action, and is represented by Ryan and Durey Solicitors who are instructed to oppose the application, she elected not to file evidence as to her own personal circumstances.

Stacey's evidence

Stacey is Timothy's wife and also made an affidavit which was read by counsel for Timothy in his capacity as executor and relied upon by the defendant beneficiaries at the hearing of the application. Among other things, Stacey deposed to having provided a copy of the deceased's will to Diane and to William on or about 6 February 2020.[92]
[92] Affidavit of S Larkan, par 4.

Disposition

There is no dispute between the parties substantially as to the test to be applied in the determination of this application. Instead, the parties differ as to whether Diane, William and Ryan have discharged their onus to establish sufficient grounds for taking the matter out of the general rule; and whether the justice of the case requires that they be given leave to file applications out of time.

Arguable case on the merits

It is convenient to first address whether the applicants have made out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time. Relevant to this factor is the question of whether on the evidence, Diane, William and Ryan each have an arguable case on the merits.

Standing

The Family Provision Act s 6 empowers the court in defined circumstances to order that provision be made out of the estate of a deceased person to persons falling within prescribed categories. Whether Diane, William and Ryan fall within any of the prescribed categories is a threshold question in any consideration of whether they have an arguable case on the merits.
I accept that Diane, William and Ryan each have standing to bring this application for leave, and upon leave being granted, an application pursuant to the Family Provision Act s 6(1) for provision from the estate of the deceased.
As the children of the deceased, William and Ryan have standing to apply for provision under the Family Provision Act,[93] and the defendants accepted the same.
[93] Family Provision Act s 7(1)(c).
As to Diane, counsel on her behalf submitted that she has standing both as a person who was married to the deceased immediately before his death;[94] and as a person who at the date of death was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court, or to an agreement or otherwise.[95]
[94] Family Provision Act s 7(1)(a).
[95] Family Provision Act s 7(1)(b).
The defendants accepted that Diane has standing as a person who was married to the deceased immediately before his death.[96] It was not necessary to determine whether Diane's circumstances (particularly, her entitlement to receive child support payments from the deceased as up to the date of his death) brought her within the ambit of s 7(1)(b) of the Family Provision Act.[97]

Diane's case on the merits

[96] First defendant's submissions, par 20.

[97] ts 56 (20 July 2021).

The critical question is whether, considered at the date of the deceased's death, the deceased's will arguably failed to make adequate provision from the deceased's estate for the proper maintenance, support, education or advancement in life of Diane, for the purposes of the Family Provision Act s 6(1). It was submitted on behalf of the defendants that Diane has no arguable claim for further provision from the estate of the deceased, even if such a claim had been made within time. Counsel for the first defendant submitted that the jurisdictional question will inevitably be determined against Diane.[98]
[98] First defendant's submissions, par 114.
As was noted by counsel on behalf of the defendant beneficiaries, in Clayton v Aust, Malcolm CJ stated:[99]
In my opinion, the question whether the appellant has an arguable case on the merits must be answered against the background of the test formulated by Salmond J in Re Allen (deceased) [1922] NZLR 218 at 220-221, who said:
'The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and desserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of the relevant circumstances.'
[99] Second to seventh defendants' submissions, par 4.2, referencing Clayton v Aust (369).
Further, counsel cited Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [122], where Callinan and Heydon JJ observed:[100]
Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances … The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
[100] Second to seventh defendants' submissions, par 4.3.
On balance, I find that the evidence disclosed that Diane's case is arguable. In reaching this conclusion, I weighed the following in the balance.
The deceased made plain his intentions in relation to Diane in his will. He did not wish for Diane to benefit from his estate.
While Diane was married to the deceased as at his death, they had separated in 2013, a considerable period prior to his death.
By 23 September 2016, Diane and the deceased had come to agree a final property settlement, the subject of orders made by the Family Court of Western Australia.[101]
[101] First affidavit of T Larkan, par 74.
As counsel for Timothy as executor noted, having regard to the public policy underlying the finality of settlements of property disputes, in most cases the achievement of a final property settlement in the Family Court would be seen by the parties, in current social circumstances, as terminating any moral claim of a former spouse to provision from the will of another.[102]
[102] Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, 652 (Kirby P), agreeing with Young J in O'Shaughnessy v Mantle (1986) 7 NSWLR 143, 149; referenced by Ward J in Scott v Scott[2009] NSWSC 567 [130]; First defendant's submissions, par 93. See also Lodin v Lodin [2017] NSWCA 327 [128].
These are all matters that suggest Diane does not have an arguable case on the merits. Counsel for the defendant beneficiaries submitted that they were indicative of the severance of any moral obligation the deceased had towards Diane because they had each moved on with their separate lives.[103] Counsel for Timothy as executor submitted that the final property settlement was a 'knock out blow' to Diane's claim.[104] I understood counsel to submit that the making of a final property settlement order with no provision for maintenance to be compelling evidence of a 'clean break', and severance of any moral obligation owed by the deceased to Diane.[105] However, counsel also properly accepted that a settlement reached under the Family Law Act 1975 (Cth), does not necessarily preclude a claim by a former spouse under the Family Provision Act.[106]
[103] Second to seventh defendants' submissions, par 8C(ii).
[104] ts 46 (20 July 2021).
[105] ts 57 (20 July 2021).
[106] Scott v Scott [140]; First defendant's submissions, par 92.
In this case there is evidence of need on the part of Diane, some ongoing financial dependency upon the deceased after he and Diane had reached a final property settlement, and arguably of a moral claim on the deceased's estate of an amount equivalent to that which the deceased would have been obliged to pay by way of child support to assist Diane in meeting their children's needs, had he not become ill and died.
On Diane's evidence, her financial position is precarious. As at the date of her first affidavit, her income was not sufficient to meet the mortgage obligations on her Baldivis residence, and to pay for basic necessities such as food, clothing and medical needs in the absence of the deceased's child support payments and other support. She deposed to a need that, prior to the death of the deceased, had been met by the deceased, and which would have continued to have been met until the children were of age, but for the deceased's illness and death.
The effect of Diane's evidence is that her relationship with the deceased prior to his death was supportive and amicable. Controversy as to the nature of their relationship raised in Timothy's first affidavit was not tested in cross‑examination, and cannot be resolved in an application such as this.
Diane's claim is limited in its ambit, that is, to the need that the deceased had met prior to his death in the form of child support payments and other support. Diane seeks from the estate an amount equivalent to that which she says the deceased would have paid by way of child support payments had he not fallen ill in July and passed in December 2019, until each of William and Ryan reached the age of 18.
On balance, I accept that there is a live question as to whether the deceased, by what he did during his life and by his will, failed to discharge a duty which he owed to Diane (that is, a moral duty). Diane's case is an arguable one. While the quantum of Diane's claim is pegged to the child support assessment made on 17 July 2019, I do not accept the defendants' submission that the cessation of a legal obligation to pay child support upon death, or reduction in assessment by reason of ill health prior to death necessarily precludes or reduces a claim under the Family Provision Act.
This is not a case where it is possible to or appropriate to weigh in the balance the strength of Diane's case. It is difficult to undertake a more precise assessment of the merits other than to form an overall conclusion that the case is arguable, which I have done.
The determination of whether adequate provision was made for Diane also involves consideration of the need and moral claims of other persons who have a legitimate claim upon the testator's bounty and the size of the estate as at the date of the testator's death. I also weighed these matters in the balance in determining whether Diane, William and Ryan have an arguable case, which I discuss below in further detail.

William's case on the merits

Again, the critical question is whether, considered at the date of the deceased's death, the deceased's will arguably failed to make adequate provision from the deceased's estate for the proper maintenance, support, education or advancement in life of William and Ryan, for the purposes of the Family Provision Act s 6(1). It was submitted on behalf of the defendants that the court should refuse William and Ryan leave to make a claim out of time because:[107]
(a)of the length of the delay, in circumstances where Diane and William had obtained a copy of the deceased's will on 6 February 2020;
(b)the reason for the delay, having regard to other factors, is weak;
(c)William and Ryan have only a very weak claim for further provision out of the estate, even if such a claim had been made within time. It was submitted that the will of the deceased adequately provides for William and Ryan by the creation of a trust, and the court should pay due regard to the deceased's wishes concerning 'funds management'; and
(d)any complaints about the administration of that trust may be the subject of proceedings under ss 58 ‑ 60 and 89 ‑ 94 of the Trustees Act 1962 (WA), and/or this court's jurisdiction as a court of equity.
[107] First defendant's submissions, par 23; Second to seventh defendants' submissions, pars 6.1 and 7.1.

As to the strength of their claims, counsel for Timothy as executor submitted that the 'jurisdictional question' would likely be determined against William and Ryan. Further, if the court was to reach the 'discretion question', having regard to the size of the estate and the claims of others, the court will probably exercise the discretion against making further provision for William and Ryan out of the estate.[108]
[108] First defendant's submissions, par 120.
It was also submitted that given the small size of the deceased's estate, and the competing claims on the deceased's bounty (for example, by the deceased's aged parents), it could not be said that even if William and Ryan had made their claims within time, the deceased failed to distribute his estate in an appropriate manner.[109]
[109] First defendant's submissions, par 24.
William was 16 years of age when his father passed away. He had no assets and given his level of education and lack of qualification, no ready means of providing for himself.
William has resided with his mother and Ryan since his parents separated. Diane's evidence is that her income is not sufficient to meet the mortgage obligations on her Baldivis residence, and to pay for basic necessities such as food, clothing and medical needs in the absence of the child support payments and other support that had been provided by the deceased prior to his death. The effect of Diane's evidence is that William's accommodation is at risk.
The deceased provided William and his brother with 'extras', by way of the provision of money beyond his child support obligations, and by way of additional groceries and meals.
The effect of William's evidence is that his relationship with the deceased prior to his death was a loving one. Controversy as to the nature of their relationship raised in Timothy's first affidavit was not tested in cross‑examination, and cannot be resolved in an application such as this.
The deceased made provision for William under the terms of his will. Timothy deposed that in addition to the amounts already distributed to William and Ryan, about $196,762 would be held in trust for William and Ryan, that is, approximately $98,381 for each of them. This is a modest sum, albeit from a modest estate to which others may also have a moral claim.
In this case there is evidence of need on the part of William, ongoing financial dependency upon the deceased, and of a moral claim on the deceased's estate. On the evidence, it is arguable that, considered at the date of the deceased's death, the deceased's will failed to make adequate provision from the deceased's estate for the proper maintenance, support, education or advancement in life of William, for the purposes of the Family Provision Act s 6(1).

Ryan's case on the merits

Ryan was 14 years of age when his father passed away. He also had no assets and no means of providing for himself.
Ryan has also resided with his mother and William since his parents separated. As noted above, the effect of Diane's evidence is that Ryan's accommodation is at risk.
The deceased provided Ryan with 'extras', by way of the provision of money beyond his child support obligations, and by way of additional groceries and meals.
Ms Bell, as Ryan's next friend, deposed to Ryan's relationship with the deceased, describing it as an extremely close one with shared interests. Again, controversy as to the nature of their relationship was not tested in cross‑examination and cannot be resolved in an application such as this.
While there was no medical evidence adduced, Ryan's grandmother described Ryan as having been devastated by the loss of his father, and consequently troubled, unable to complete his education or to work. I understood that counsel for Timothy as executor was prepared to accept the fact that the death of Ryan's father drove him into a bout of depression.[110]
[110] ts 43 (20 July 2021).
The deceased made provision for Ryan under the terms of his will. As some distribution to Ryan was made, Timothy's evidence is that approximately $98,381 will be held on trust for Ryan. Again, this is a modest sum, albeit from a modest estate to which others may also have a moral claim.
In this case there is evidence of need on the part of Ryan, ongoing financial dependency upon the deceased, and of a moral claim on the deceased's estate. I am satisfied that on the evidence, it is arguable that, considered at the date of the deceased's death, the deceased's will failed to make adequate provision from the deceased's estate for the proper maintenance, support, education or advancement in life of Ryan, for the purposes of the Family Provision Act s 6(1), while weighing in the balance that others also may have had a moral claim on his estate.
Again, I proceeded on the basis that this was a case where it was not possible or appropriate to form a view and then weigh in the balance the strength of William or Ryan's case. It was difficult to undertake a more precise assessment of the merits, other than to form an overall conclusion that each case is arguable, which I have done.

The need and moral claim of the defendant beneficiaries

Counsel for the plaintiffs submitted that: [111]
(a)none of the defendant beneficiaries claim to be dependents of the deceased, or to have financially relied upon him prior to his death;
(b)while the affidavits of Timothy (in his personal capacity), Hendrina, Mr Gorton on behalf of Frederick, Erick and Donald disclose reasons why distribution from the estate would be of benefit to them, none would have expected to be provided such moneys but for the deceased's untimely death; and
(c)the defendant beneficiaries may have expected to benefit from the deceased's estate if the estate were larger, but their claims cannot be considered reasonable in priority of the obligation of the deceased to provide for the maintenance, support, education and advancement in life of his two minor children.
[111] Plaintiffs' submissions, pars 2.3.3 - 2.3.5.
I understood counsel for the plaintiffs to contend that in a small estate, the deceased's obligation was to his minor children, who as at the date of his death had no income or means of support other than their surviving parent, who herself was in part dependent upon the deceased and having lost that support, is now in financial crisis.[112]
[112] Plaintiffs' submissions, par 2.3.6.
I accepted that there was evidence that beneficiaries beyond the plaintiffs have needs and may have a moral claim on the deceased's bounty. In particular, the needs of Frederick and Hendrina, given their age, their financial resources (when considered separately or in combination) and Frederick's deteriorating health, have particular urgency. Hendrina also deposed of the assistance (financial and otherwise) that the deceased had provided to her prior to his death.

The size of the estate

I also weighed in the balance the size of the estate, which is modest. I was cognisant that if leave were granted, a further portion of the estate would likely to be consumed in legal costs. In Ancell v Dawes [2016] WASC 402 [3], Master Sanderson made the following observation in the context of that proceeding:
It may well be once leave is granted settlement negotiations take place and the matter is resolved. Even then, experience suggests costs quickly mount up. But, if the matter is not settled, there is a real risk all of the parties might wind up actually receiving less from the estate than they would have received had leave not been granted.
Such an observation is apt in this proceeding. All but Diane risk receiving less if leave is granted.
The need and moral claim of the defendant beneficiaries (deposed to with the exception of Vicky), and the modest size of the estate, are matters which weighed heavily against the grant of leave.

Delay

The plaintiffs say that the delay has been adequately explained by Diane. As both William and Ryan were minors until December 2020, and Ryan was a minor at the commencement of this proceeding, they refer to the evidence of Diane to describe the circumstances and disclose the reason for delay. The defendants submit that the delay was not adequately explained, and the explanation proferred was weak.
This application was made more than a year after probate had been granted. The delay was not that of days, but over six months. That said, I have had regard to the whole of the circumstances, which included the following.
Without needing to resolve any contest on the evidence, I accept that the terms of the deceased's will were known to Diane and at least to William before the expiry of the six month period.
From Diane's various communications with Timothy in relation to the deceased's estate, it can be readily discerned that Diane held concerns as to the distributions to be made to William and Ryan from the estate; that she sought the provision of information from Timothy; and that Diane sought to confer with Timothy to try to resolve the concerns and avoid legal costs (which she could not afford) from being incurred.
Diane wrote to Timothy as executor in May 2020, seeking clarity regarding the estate and proposed distributions, to which she did not receive a substantive response until 28 July 2020, after the time for making a claim had expired. The evidence disclosed that while ultimately ineffective, Diane took steps to try to advance the positions of William and Ryan, a matter which I have weighed in the balance.
Diane's evidence as to her financial standing makes plain that she had limited means to seek legal advice. She described seeking legal advice in June 2020 as a 'last resort' as she could not afford legal fees, which she ultimately paid for on her credit card and, as at the date of her first affidavit, was still paying off. [113]
[113] First affidavit of D Larkan, par 18.
Diane sought advice in late June 2020. Had a probate search been undertaken by her legal representatives at that time, it would have disclosed that the expiry of the six month period was imminent, and proceedings may have been commenced within time. Unfortunately, a search was not immediately undertaken. Nor did Diane receive advice as to her own potential claim until December 2020.
From the evidence before me, I am unable to determine whether in June or early July 2020, before the expiry of the time period, Diane through Mountains Lawyers knew the effect of s 7(2) of the Family Provision Act.
There is no suggestion from the evidence that there was any delay on the part of Diane in giving instructions to Mountains Lawyers once she engaged them. Rather, the evidence suggests that Diane on behalf of William and Ryan diligently sought information from Timothy, and sought to pursue conferral so as to avoid litigation.
The evidence suggests that another reason for the delay in commencing this proceeding may be the failure of the plaintiffs' solicitors to take reasonable care to adequately pursue their clients' interests. The importance of obtaining a probate search promptly, of commencing proceedings within six months of the grant, and the risk of the correspondence and conferral strategy adopted before and after the six months had expired, should have been appreciated by Mountains Lawyers.
Diane and her representatives and Timothy and Byford Legal engaged in conferral in October 2020, but that conferral process was terminated upon Timothy's change in legal representation. I did not understand Byford Legal to have taken the point that time had expired in that period of attempted conferral between July and October 2020.
Timothy as executor was aware that Diane on behalf of William and Ryan had made enquiries and had raised concerns as to the distribution of the deceased's estate by May 2020. Timothy accepted that as at July 2020, references to a possible claim under the Family Provision Act on behalf of William and Ryan had been made.[114] I also note that by the letter of 3 July 2020, Timothy was on notice of a potential claim against the estate for maintenance and support of William and Ryan commensurate with payments assessed by the Child Support Agency on 17 July 2019, albeit not framed as a claim intended to be prosecuted by Diane.
[114] First defendant's submissions, pars 61, 64, 110 and 111.
Upon receipt of notice on 15 October 2020 from Butlers Lawyers of an intention to distribute the deceased's estate if an application for leave was not made within seven days, Mountains Lawyers sought to commence proceedings on behalf of William and Ryan by presenting a document for filing on 21 October 2020. However, the first attempt to commence proceedings on behalf of William and Ryan was not in compliance with the Family Provision Act, nor the Rules of the Supreme Court.
A second attempt was made on 26 October 2020, which was accepted for filing. The proceeding was known as CIV 2073 of 2020 and was made on behalf of William and Ryan. Diane was not named as a plaintiff in her own right. Again, the proceeding was not in compliance with the Family Provision Act, nor the Rules of the Supreme Court, and at a directions hearing on 1 December 2020, the court ordered the proceeding be adjourned sine die.
This competent application was commenced on 27 January 2021. It was commenced over 12 months after the grant of probate. It was not commenced promptly after the directions hearing on 1 December 2020 upon the advice of Mountains Lawyers to wait until William turned 18 (later that month), and for receipt of further information that Diane understood had been requested from Timothy through his representatives on 1 December 2020.
William and Ryan were 14 and 16 when their father died. They were 15 and 17 when probate was granted, and William was not 18 when the six month period in which to bring a claim under the Family Provision Act expired. This proceeding was commenced within about five weeks after William turned 18. It was commenced on behalf of Ryan by his next friend when he was 16. I accept that their reliance upon their mother was wholly reasonable in the circumstances, and that it is appropriate for the court to assess their respective positions with greater indulgence by reason of their age and reliance upon their sole surviving parent.[115]
[115] See also ts 61 (20 July 2021).
Counsel for the defendant beneficiaries submitted that in this case, there is an amount of solicitor error which must be considered. However, with respect to the defendants' positions, counsel submitted that the defendants should not be prejudiced by delays to the due administration of the deceased's estate as a result of the plaintiffs' failing to commence proceedings under the Family Provision Act in time, or by the shortcomings of the plaintiffs' solicitors.[116] I accepted that these were all matters appropriately weighed in the balance.

Alternative redress

[116] Second to seventh defendants' submissions, par 5.5.

Given the circumstances in which the delay arose, I also considered it to be relevant to consider whether a refusal to extend time would leave the plaintiffs without redress against anybody.
The defendant beneficiaries submitted that if the extension of time were not granted, the plaintiffs could seek redress by bringing an action against Mountains Lawyers.[117]
[117] Second to seventh defendants' submissions, par 6.3(c); ts 38 (20 July 2021).
While Diane, William and Ryan may have a claim against Mountains Lawyers in negligence, such claim is not bound to succeed. Further, their damages in such a case would be the loss of a chance of succeeding in their application under the Family Provision Act.[118] As observed in Grigoriou v Nitsos [29], on this basis there is a real prospect of the applicants obtaining an order for damages that would be less than the amount they could recover under s 7(1). Further, the prosecution of such a claim may take far longer and be far more expensive than the prosecution of their claim under the Family Provision Act.

Distribution

[118] Grigoriou v Nitsos [29]; Craig v Craig [2015] WASC 109 [37].

From the evidence I understand that $100,000 of the deceased's estate has been distributed to Ms Whitten through the transfer of the deceased's property in Byford to her for an amount less $100,000. As none of the plaintiffs seek to disturb the deceased's specific bequest to Ms Whitten, the distribution is not a matter that I have weighed in the balance.
Otherwise, the distributions made to date appear to be relatively modest distributions to William and Ryan. These are not circumstances where there has been distribution to the defendant beneficiaries before a claim under the Family Provision Act was notified. No detriment is claimed to have been suffered by any of the defendant beneficiaries as a result of distribution to any defendant beneficiary, or by reason of the delay on the part of Diane, William and Ryan (by his next friend) in having made this application.

Assessment

I have borne all of these matters in the balance when considering whether the justice of the case require Diane, William and Ryan to be granted an extension of time. The application is finely balanced. On balance, I find that Diane, William and Ryan have established sufficient grounds for taking this matter out of the general rule, depriving those who are protected by it of its benefits.
They have made out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time. It has been shown that each of Diane, William and Ryan have an arguable case on the merits. The evidence supports a finding of a case that they each have needs which cannot be met from their own resources (which needs continue); and they have an arguable moral claim for provision from the estate (in the case of William and Ryan, for greater provision from the estate).
On balance, while the delay was significant, I concluded that the justice of the case did not favour refusing the plaintiffs leave on the grounds of delay in the commencement of proceedings. The ages of William and Ryan weighed heavily in the balance in this regard, as did the delay caused by the errors of Mountains Lawyers in October 2021 until the commencement of this competent proceeding. Negotiations sought and conducted after the time limit but before Butlers Lawyers took the point that time had expired also encouraged the extension of time, as did consideration of events from December 2019 to 24 January 2021 through the lens of Diane's impecuniosity.
I have weighed in the balance all relevant facts and circumstances. The particular circumstances, the delay and provision of notice of the claim, and the potential for serious prejudice to the plaintiffs without ready redress against anybody, when combined with each case on the merits tipped the balance in favour of the discretion being exercised in favour of the applicants.
To my mind, these matters outweigh the prejudice that will flow to the executor and defendant beneficiaries through delay and by further legal costs being incurred in the context of a very modest estate with competing claims on the deceased’s bounty. In my judgment it would not be just to shut Diane, William or Ryan out from making a claim in all of the circumstances of this case.

Conclusion and orders

On balance, I find that Diane, William and Ryan have discharged their onus to establish sufficient grounds for taking this case out of the general rule. The need and moral claim of the defendant beneficiaries (deposed to with the exception of Vicky), and the modest size of the estate, are matters which weighed against the grant of leave. However, on balance, I was persuaded that the justice of the case, having regard to all relevant facts and circumstances, require Diane, William and Ryan to be granted an extension of time.
I will hear the parties as to the appropriate form of order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AI
Associate to the Honourable Justice Strk
16 MAY 2022