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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Larkan v Larkan

Details

AGLC: Larkan v Larkan [2022] WASC 169
Case: [2022] WASC 169
Decision Date

CaseChat Overview and Summary

Larkan v Larkan [2022] WASC 169 concerns an application under the Family Provision Act 1972 (WA) for an extension of time to bring an application for provision out of the estate of a deceased person. The deceased had made a will, but did not provide for his estranged wife, Diane, or his two sons, William and Ryan. Diane, William and Ryan sought leave to bring an application out of time. The executor and other beneficiaries opposed the application. The court found that Diane, William and Ryan had made out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time, and granted leave for the application to be brought out of time.

Orders