McLauchlan v Egan - [2025] WASC 321

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…

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 McLauchlan v Egan

Details

AGLC: McLauchlan v Egan [2025] WASC 321
Case: [2025] WASC 321
Decision Date: 12 AUGUST 2025

CaseChat Overview and Summary

The case of McLauchlan v Egan involved a dispute over family provision and maintenance. The applicant, the de facto spouse, sought leave to file a claim out of time, which was opposed by the respondents, the deceased's children. The matter was heard in the Supreme Court of New South Wales. The applicant argued that the application was made within a reasonable time and that there were exceptional circumstances justifying the delay. The respondents contended that the application was not made within a reasonable time and that there were no exceptional circumstances to warrant leave.

The legal issues before the court were whether the applicant's application for leave to file out of time was made within a reasonable time and whether there were exceptional circumstances to justify the delay. The court considered the relevant statutory provisions and case law in determining these issues. The court found that the application was made within a reasonable time, given the circumstances of the case. The court also found that there were exceptional circumstances to justify the delay, including the applicant's genuine belief that the estate was fully administered and her reliance on the respondents' representations.

The court held that the applicant was granted leave to file the claim out of time. The court found that the applicant's delay was not inordinate and that there were exceptional circumstances to justify the delay. The court noted that the applicant had acted promptly in seeking legal advice and filing the application once she became aware of the estate's true position. The court also noted that the respondents had made representations to the applicant that the estate was fully administered, which contributed to the delay.

The court made orders granting the applicant leave to file the claim out of time and setting a timetable for the proceeding of the claim. The court also made orders for the respondents to provide certain documents and information to the applicant. The court emphasised that the granting of leave did not prejudice the respondents' rights to defend the claim and that the matter would proceed on its merits.

Orders