McLauchlan v Egan
[2025] WASC 321
•12 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCLAUCHLAN -v- EGAN [2025] WASC 321
CORAM: GETHING J
HEARD: ON THE PAPERS
DELIVERED : 12 AUGUST 2025
FILE NO/S: CIV 2507 of 2024
BETWEEN: ELIZABETH GRACE MCLAUCHLAN
Plaintiff
AND
LUKE HEINSEN EGAN as executor of the will of LEONIE MARIA HEINSEN
First Defendant
MATTHEW HEINSEN EGAN as executor of the will of LEONIE MARIA HEINSEN
Second Defendant
LUKE HEINSEN EGAN as beneficiary of the estate of LEONIE MARIA HEINSEN
Third Defendant
MATTHEW HEINSEN EGAN as beneficiary of the estate of LEONIE MARIA HEINSEN
Fourth Defendant
Catchwords:
Family provision and maintenance - Application by de facto spouse for leave to file out of time
Legislation:
Family Provision Act 1972 (WA) s 6, s 7
Result:
Leave to file out of time granted
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Culshaw Miller Lawyers |
| First Defendant | : | GC Lawyers |
| Second Defendant | : | GC Lawyers |
| Third Defendant | : | GC Lawyers |
| Fourth Defendant | : | GC Lawyers |
Case(s) referred to in decision(s):
Butler v Butler [2025] WASC 79
Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Keremestevski v Shaun McLoed as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
Larkan v Larkan [2022] WASC 169
Musasghi v Gebremariam [2022] WASCA 37
Wheatley v Wheatley [2018] WASCA 34
GETHING J:
Introduction
Leonie Maria Heinsen (Deceased) died on 22 February 2017 at the age of 63 leaving a will dated 3 October 2008 (Will). Probate of the Will was granted on 24 May 2019 to the Deceased's adult sons, Luke Heinsen Egan and Matthew Heinsen Egan, the executors appointed under the Will (Executors). For ease of reference, and intending no disrespect, I will refer to Luke and Matthew by their first names.
On 23 December 2024, the plaintiff, Elizabeth McLauchlan (Plaintiff), applied (Leave Application), in effect, for leave pursuant to Family Provision Act 1972 (WA) (FPA) s 7(2)(b), to bring an application for further provision out of the estate of the Deceased (Estate). An extension of time is needed as any claim under FPA s 6(1) (Proposed Claim) had to be made by 24 November 2019. The Plaintiff says that she was living as the de facto partner of the Deceased immediately before her death and so is entitled to make a claim pursuant to the FPA by s 6(1)(a). Appropriately she joined Luke and Matthew to the Leave Application both in their capacities as the Executors and personally as beneficiaries.
The parties agreed to an early mediation facilitated by the court. At the mediation the parties, sensibly, settled both the Leave Application and the Proposed Claim. The parties filed consent orders in the following terms on 5 August 2025 (Consent Orders):
1.The Plaintiff's application be dealt with on the papers and in the absence of the parties.
2.The Plaintiff has leave to rely on the Affidavit of the Plaintiff affirmed on 29 July 2025 and filed on 30 July 2025.
3.Pursuant to s 7(2)(b) of the Family Provision Act 1972 (WA) (Act), the Plaintiff has leave to commence proceedings out of time pursuant to s 6(1) of the Act.
4.The Plaintiff is to file her application pursuant to section 6(1) of the Act within 7 days of the date of these orders (Application).
5.The Plaintiff has leave to rely on all materials filed in CIV 2507/2024 in the Application.
6.The costs of this proceeding be reserved to the Application.
The materials before the court in the Leave Application are:
(a)affidavit of the Plaintiff affirmed on 23 December 2024 (First McLauchlan Affidavit);
(b)affidavit of Luke as executor sworn 4 April 2025 (First Executor Affidavit);
(c)affidavit of Matthew sworn 4 April 2025 in which he adopts the contents of the First Executor Affidavit;
(d)affidavit of Luke and Matthew sworn 9 April 2025 (Second Executor Affidavit); and
(e)affidavit of the Plaintiff affirmed on 29 July 2025 (Second McLauchlan Affidavit).
For the reasons which follow I am satisfied that, on the materials before the court, it is an appropriate exercise of the court's discretion to make orders in terms of the Consent Orders.
Does the Plaintiff have standing to bring an FPA application?
The first issue I need to be satisfied of is whether the Plaintiff was living as the de facto partner of the Deceased immediately before her death.
The Plaintiff's evidence may be summarised in the following terms.
The Plaintiff and the Deceased met in November 1997. At that time the Plaintiff was living at an address on Mallee Fowl Way, Margaret River (Margaret River Property) and the Deceased was living in Pemberton.
The Plaintiff had separated from her former partner in 1995, and the Deceased had divorced Luke and Matthew's father.
By the end of 1997, the Plaintiff and the Deceased were in a committed and exclusive relationship. The Plaintiff moved in with the Deceased in her Pemberton property where she was residing with Luke (then 14 years old) and Matthew (then 11 years old) so that they could live together as a couple. The Plaintiff shared a bed with the Deceased and undertook domestic duties, including providing care for Luke and Matthew.
In about 1999, the Plaintiff and the Deceased jointly decided to move to Geraldton and resided, with Luke and Matthew, at a property at 92 Gregory Street, Geraldton. The Plaintiff continued to share a bed with the Deceased, undertake domestic duties and child caring responsibilities, and made financial contributions to the household.
The Plaintiff went on family holidays with the Deceased, Luke and Matthew, and shared the expense of those trips.
In 2004, the Deceased provided financial support to the Plaintiff in the sum of $90,000 by paying the sum of $50,000 to settle a family law claim against the Plaintiff brought by her ex-partner, and to discharge the $40,000 remaining on the loan secured by a mortgage over the Margaret River Property. In exchange for this support, the Plaintiff transferred 2/3 of her interest in the Margaret River Property to the Deceased.
The Plaintiff moved out of the 92 Gregory Street in 2005 when Luke and Matthew were teenagers and began residing in the Deceased's investment property at 90 Gunners Lane, West End. Their relationship continued, and the Deceased stayed with the Plaintiff when her shift work allowed her the opportunity.
After the Deceased's temporary relocation to Perth in 2009 to further her studies, the Plaintiff and the Deceased resided together at 90 Gunners Lane from mid-2010. During the Deceased's studies, the Plaintiff and the Deceased spent most of their weekends together.
Not long after the Deceased's return to Geraldton (90 Gunners Lane), the Plaintiff took the opportunity to purchase the leasehold interest in 89 Gunners Lane, West End, which was located next door to 90 Gunners Lane. The Plaintiff and the Deceased decided to each have their own small 'home base' but connected the properties by a common gate. They continued to sleep together and care for their 3 large dogs.
While they did not have a joint back account, they each contributed to shared living expenses on an ad hoc basis.
In 2004 the Plaintiff commenced employment with the WA Country Health Service (WACHS) in Geraldton as a drug and alcohol worker. The Deceased, who was a trained nurse, began working for the WACHS in 2011 as a senior community drugs officer.
The Plaintiff and the Deceased publicly presented themselves as a couple and socialised with their mutual friends, and family, as a couple. They continually wrote cards to each other for special occasions.
Luke had his first child, Emily, with his then-partner in 2013. The Plaintiff and the Deceased looked after Emily and the Plaintiff felt recognised as a 'grandmother-like' figure.
The Deceased was diagnosed with terminal blood cancer in January 2015 and was given a prognosis of 2 years. The Plaintiff was the Deceased's primary carer and took her to medical appointments, collected her medications, did her grocery shopping and organised her leave from WACHS.
The Deceased commenced 3 months of chemotherapy in Perth in February 2015. The Plaintiff and Matthew alternated weeks in taking the Deceased to her appointments. When the Plaintiff came down to Perth from Geraldton, she stayed with the Deceased at the Deceased's house in Spearwood.
In about July 2016, the Plaintiff and Deceased were able to take a 4‑week overseas holiday together, during which they shared a bed.
After the Deceased's health began to quickly decline from about August 2016 and towards the end of that year, the Plaintiff was showering and dressing the Deceased.
During this period, the Plaintiff took a mix of annual leave and, as the Deceased's partner, was also entitled to carer's leave, which she took.
In February 2017, the Deceased was moved to palliative care at St John of God Hospital in Geraldton where she eventually passed away on 22 February 2017. The Plaintiff says that she believes she was noted as the Deceased's next-of-kin, and she received many condolence cards and public acknowledgements of her (and Luke and Matthew's) loss, including on the Deceased's gravestone which Luke and Matthew organised.
Neither Luke nor Matthew have placed before the court in their affidavits any evidence contradicting that of the Plaintiff. I accept the Plaintiff's evidence.
The question of whether the Deceased and the Plaintiff were in a de facto relationship immediately before the death of the Deceased is to be determined by considering the evidence before the court in light of the meaning of a 'de facto relationship' as contained in Interpretation Act 1984 (WA) (Interpretation Act) s 13A.[1] That section provides:
[1] Keremestevski v Shaun McLoed as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [35] (judgment of the court) (Keremestevski).
13A. De facto relationship and de facto partner, references to
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
The application of Interpretation Act s 13A in the context of FPA s 6(1) was recently considered by the Court of Appeal in Keremestevski.[2] I respectfully adopt their Honours' analysis, which I don't need to repeat.
[2] Keremestevski [36] - [42].
The Plaintiff and the Deceased were in an unbroken relationship which lasted nearly 20 years, and ended only on the death of the Deceased. For the first 10 or so years they resided together as a couple, with the times when they did not reside together being explicable by temporary circumstances (being study and shift work). In later years, they resided next door to each other, but continued to 'sleep together'. I infer from oblique references like this in the First McLauchlan Affidavit that their relationship was sexual. There was a degree of financial interdependence between them both at a day to day level of sharing living expenses and at a long term level of being joint owners of a property. They clearly had a strong mutual, and exclusive, commitment to a shared life together, one that was recognised publicly. I am readily satisfied that the Plaintiff was living as the de facto partner of the Deceased immediately before her death on 22 February 2017. Accordingly, she has standing to make the Proposed Claim, and thus the Leave Application.
The Estate
It is instructive next to consider the Estate and the provision made under the Will for the Deceased. The personal property of the Deceased was minimal and can be put to one side for present purposes.
As to immovable assets, there are interests in five properties, all within Western Australia:[3]
[3] Second Executor Affidavit, pages 3 and 5. The Meerup Property is said to be valued at $150,000 as at 4 April 2025. However in context, this appears to be the value of the property as a whole. 1/8 of $150,000 is $18,750.
Property
Value 22.2.17 Value 4.4.25 90 Gunners Lane, West End (being a leasehold interest),
$55,000.00 $150,000.00 1/8 share in 189 Pioneer Road, Meerup (Northcliffe Property)
$4,296.88 $18,750 2/3 share in 81 Mallee Fowl Way, Margaret River $360,000.00 $733,333.33 22 Hawke Road, Yeagarup
$242,500.00 $325,000.00 143 Hamilton Road, Spearwood
$490,000.00 $820,000.00
The liabilities were $28,282.60 as at 22 February 2017 and $92,218.14 as at 4 April 2025.
Under the Will, the Plaintiff only received one half of the Deceased's 1/8 interest in the Northcliffe Property. The balance of the Estate was bequeathed to Luke and Matthew.[4]
[4] First McLauchlan Affidavit, page 29.
In the Leave Application, the Plaintiff foreshadowed that in the Proposed Claim she would claim:
(a)the Deceased's 2/3 interest in the Margaret River Property (of which she is the registered proprietor of the remaining 1/3); and
(b)the Deceased's interest in 90 Gunners Lane.
Should leave be granted?
Principles
By FPA s 7(2) no application under FPA s 6(1) shall be heard by the court unless:
(1)the application is made within 6 months from the date of the grant of probate; or
(2)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 the expiry of the 6‑month period.[5]
[5] FPA s 7(3).
The rationale for the time limit is that there is a public interest in the prompt administration of estates. Six months is ordinarily more than long enough for a potential claimant to decide whether to bring an application for provision under FPA s 6(1). After the lapse of that time, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to the will.[6]
[6] Wheatley v Wheatley [2018] WASCA 34 [54] - [56] (judgment of the court) (Wheatley).
The court's exercise of power to grant an extension of time under FPA s 7(2) is discretionary. That discretion is unfettered but must be exercised judicially and have regard to what is just and proper.[7]
[7] Wheatley [54]; Butler v Butler [2025] WASC 79 [24] (Whitby J) (Butler).
The applicant for an extension of time bears the onus of establishing that the justice of the case requires that leave be given out of time to make an application under FPA s 6(1). 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.[8]
[8] Wheatley [54]; Butler [25]; Larkan v Larkan [2022] WASC 169 [11] (Larkan) (Strk J).
The factors that are relevant to the exercise of the court's discretion to grant an extension of time include:[9]
(1)whether the applicant has an arguable case;
(2)the reasons for delay in making the application;
(3)whether the applicant had entered into negotiations with the beneficiaries prior to the time limit expiring;
(4)whether or not the estate has been distributed before the claim was made or notified; and
(5)whether a refusal to extend the time would leave the applicant without redress.
Does the Plaintiff have an arguable case?
[9] Wheatley [54] - [63]; Butler [26]; Larkan [12] - [15].
At the time of the death of the Deceased, the Plaintiff was 53 years old. She was a drug and alcohol worker at WACHS with a net fortnightly income of $993.98. She had another source of income, being rental income from the Margaret River Property in the order of $100 per fortnight. Her expenditure exceeded her income by about $700 per fortnight. However, this was due to the fact that she was on carer's leave to look after the Deceased.
The Plaintiff's assets had a total value of about $280,000. Her assets included her 1/3 interest in the Margaret River Property (leased out since 2000) and her purchased leasehold interest in 89 Gunners Lane.
As set out in the Second McLauchlan Affidavit, the Plaintiff's current financial position has improved, largely due to changes in the property market. Her net asset position is about $406,000. Her fortnightly income now exceeds her expenses by about $600 per week.
The Plaintiff suffers from physical ailments, including incomplete quadriplegia from a car accident in 1983 and suffers from chronic pain. She requires a second knee replacement but is unable to afford it. Her mental health has significantly deteriorated since the Deceased's death and she was recently diagnosed with a major depressive disorder This has limited her capacity as she is only able to work 0.8 FTE. She wishes to retire to the Margaret River region which was her plan with the Deceased. Upon selling her interest in 89 Gunners Lane ($159,000), she would be unable to afford to purchase a property given her superannuation balance ($125,000), outstanding loan liabilities (roughly $155,000) and the fact that she is currently 61 years of age and looking to retire in three to five years.
The power in FPA s 6(1) is enlivened if the court is of the opinion that the disposition of the Deceased's estate effected by the Will is not such as to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of any of the Plaintiff.
In exercising this power, the court undertakes a two stage process. The first, or jurisdictional, stage is a question of fact being whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the applicant.[10] The onus is on the applicant to satisfy the court of this fact on the balance of probabilities.[11] Only if it is so satisfied does the court move to the second stage.[12] The second stage involves the exercise of a discretion by the court. The court must determine what provision it 'thinks fit' should be made out of the estate of the deceased for the proper maintenance, support, education or advancement in life of the applicant.[13] The first stage is determined at the date of death of the deceased and the second stage is determined at the date of the order made by the court. However, the questions posed at each stage are not independent of each other, and the relevant considerations and facts applicable to each stage may overlap.[14]
[10] Keremestevski [45]; Musasghi v Gebremariam[2022] WASCA 37 [106] - [107] (judgment of the court) (Musasghi); Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482 [111] (Seward J) (Hill).
[11] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 149 (Gibbs J, with whom Mason and Aickin JJ agreed); Hill [124].
[12] Keremestevski [48]; Musasghi [108].
[13] Keremestevski [48]; Musasghi [108].
[14] Hill [111].
Although the first stage is a question of fact, it does involve the court making value judgments. Specifically, the court must determine whether the applicant has been left without 'adequate' provision for his or her 'proper' maintenance.[15] The word 'proper' connotes something different from the word 'adequate'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard of maintenance, support, education or advancement in life.[16]
[15] Keremestevski [46] - [47]; Musasghi [107].
[16] Keremestevski [46].
Considering all the circumstances in the evidence before the court, I am readily satisfied that there is an arguable case that the Deceased failed to make adequate provision for the Plaintiff from her Estate and that some further provision should be made. The net value of the estate of the Deceased is now in excess of $2 million. The amount given to the Plaintiff was insignificant and, at least on the materials before me, does not appear to be realisable. Significantly, the Estate included a property in which both the Deceased and the Plaintiff had an interest. The Plaintiff and the Deceased were in a de facto relationship for nearly 20 years, giving rise to a strong moral claim. The Plaintiff's assets are modest, her means of improving her position limited and her needs significant. Neither Luke or Matthew asserts any compelling need or moral claim on the Estate that would preclude the Plaintiff from receiving any amount from the Estate.
The reasons for delay in making the application
The reasons why the Plaintiff delayed in making the Leave Application are set out in the First McLauchlan Affidavit.
The Plaintiff's evidence is to the effect that, as a result of discussions with:
(a)the Deceased before she died; and
(b)the Executors after the Deceased died,
she anticipated receiving 90 Gunners Lane and a life interest in the Deceased's 2/3 share of the Margaret River Property.
The Plaintiff did not see a copy of the Will until November 2020 when her lawyer obtained a copy from the Probate Registry to assist in her own estate planning. She was not informed by the Executors that probate was being obtained in respect of the Will.
While the Plaintiff was speaking to that lawyer for her estate planning, they did not give the Plaintiff any advice in respect of contesting the Will.
From January 2021 until about March 2024, the parties were in direct communication about the Estate from time to time, including a proposal by the Executors for 90 Gunners Lane to be transferred to the Plaintiff, however nothing was ever formally resolved as to the distribution of the Estate. No transmissions or transfers of real property were effected prior to the Leave Application being filed.
After receiving a letter for the first time from the Executors' lawyers in January 2024, the Plaintiff sought legal advice and learnt of her rights under the FPA for the first time. She did not pursue her FPA claim with these lawyers as she felt they were dismissive towards her and they sought a significant sum of money to be placed in their trust account which she could not afford.
The Plaintiff formally engaged her current lawyers on 27 March 2024 and by a letter from them dated 22 May 2024, tried to resolve the Estate issues without the need for litigation. It became clear by 25 October 2024 that the commencement of this proceeding was required, and from this date it took time for the Plaintiff to access certain historical documents for this application, such as work emails.
The Leave Application was, as I have mentioned, commenced on 23 December 2024.
Neither Luke nor Matthew place before the court any contrary evidence.
I accept the Plaintiff's explanation.
Other factors
The Estate primarily comprises real estate. It has not yet been distributed.
It is clear that a refusal to extend the time would leave the Plaintiff without redress.
As I have mentioned, Luke and Matthew consent to leave being granted in the context of the parties having reached a negotiated outcome.
Determination
Having regard to all the material in evidence, I am satisfied that the justice of the case requires that the Plaintiff be given leave to file out of time. She has made out a substantial case for it being just and proper for the court to do so. Accordingly, I consider it appropriate for the court to make orders in terms of the Consent Orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OB
Associate to the Hon Justice Gething
12 AUGUST 2025
7
1