Peterson v Best - [2024] WASC 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PETERSON -v- BEST [2024] WASC 266
CORAM:   LUNDBERG J
HEARD:   25 JULY 2024
DELIVERED          :   25 JULY 2024
FILE NO/S:   CIV 1209 of 2024
BETWEEN:   DEBRA LEE PETERSON
Plaintiff
AND
COLIN DOUGLAS BEST as Executor of the Estate of DAVID ALEXANDER PETERSON
First Defendant
COLIN DOUGLAS BEST
Second Defendant
HELEN LANE BEST
Third Defendant
SOUTH METROPOLITAN HEALTH SERVICE
Fourth Defendant
CHILD AND ADOLESCENT HEALTH SERVICE
Fifth Defendant

Catchwords:

Family Provision Act 1972 (WA) - Application by daughter of the deceased for leave to bring an application out of time - Delay of five months beyond the six month statutory period - Daughter unaware of her father's death until the statutory period had expired - Estate partially administered but substantial assets remain undistributed - Application for leave not opposed by the executor or any of the beneficiaries named in the will - Whether justice of the case requires the plaintiff be given leave - Turns on own facts

Legislation:

Family Provision Act 1972 (WA), s 6, s 7, s 8
Trustees Act 1962 (WA), s 65

Result:

Leave granted

Category: B

Representation:

Counsel:

Plaintiff	:	D J Kirchner
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Templar Legal Pty Ltd
First Defendant	:	Biddulph & Turley
Second Defendant	:	Biddulph & Turley
Third Defendant	:	Biddulph & Turley
Fourth Defendant	:	State Solicitor's Office
Fifth Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

Andrew v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Blendell v Byrne [2019] NSWSC 583
Clayton v Aust (1993) 9 WAR 364
Hill v Jennifer Patricia Murphy as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482
Hills v Chalk [2008] QCA 549
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Re Salmon (Dec) [1981] 1 Ch 170
Wheatley v Wheatley [2018] WASCA 34

Table of Contents

A. Introduction

B. Legislative framework

C. Background to the application

Preliminary

The defendants to the application

Relief sought by the plaintiff

The terms of David's will

D. Relevant principles

E. Evidence and background facts

F. Disposition

G. Conclusion and orders

LUNDBERG J:

(This decision was delivered ex temporaneously on 25 July 2024 and has been edited from the transcript to correct matters of grammar, add headings, and include complete references.)

A. Introduction

These reasons concern an application for leave to commence a claim under the Family Provision Act 1972 (WA) (the Act) out of time. The application is brought pursuant to s 7(2)(b) of the Act, seeking leave to commence proceedings under ss 6(1) and 7 of the Act. The plaintiff has moved today for orders for such leave to be given, pursuant to the re-amended originating summons filed on 26 April 2024.[1]
[1] The originating summons was originally filed on 23 February 2024.
I have heard oral submissions this morning from counsel for the plaintiff, there being no appearance from any of the defendants, all of whom have filed notices of intention to abide. The plaintiff was present at the hearing by video link. I am in a position to dispose of the application today and these are my reasons for so doing.

B. Legislative framework

To put the present application into context, I should first address the legislative framework. Section 6(1) of the Act is the principal operative provision, which permits an application to be made for orders that provision be made out of a deceased's estate to a person in respect of whom adequate provision has not been made for that person's proper maintenance, support, education, or advancement in life.
Section 6 relevantly provides as follows:
6.Court's powers to order deceased's estate to provide for s. 7 applicant
(1)If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
(2)The Court in considering for the purposes of subsection (1) whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.
(3)The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
The persons who can apply under s 6(1) of the Act are delineated within s 7(1) of the Act. The plaintiff squarely falls within s 7(1)(c), being a child of the deceased living at the date of his death. The plaintiff thus has standing to bring an application under s 6(1).

C. Background to the application

Preliminary

The application for leave relates to the estate of the late David Alexander Peterson and also, albeit indirectly, to the estate of his late wife, Susan Jane Peterson. The plaintiff, Debra Peterson, is the only daughter of both David and Susan. Without intending any disrespect, I will refer to these parties by their first names in these reasons.
The time limit under the Act for bringing a claim is 6 months from the date on which 'the administrator'[2] became entitled to administer the relevant estate. This time limit is a substantive provision, not a mere procedural time limit.[3]
[2] The Act relevantly defines the term 'administrator' to mean 'any person to whom probate of the will of a deceased person is granted, or to whom administration is granted…': s 4(1) Act.
[3] Andrew v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14 [38] – [39] (Steytler P, with Pullin and Buss JJA agreeing).
David died on 7 January 2023, leaving a will dated 2 December 2019. The executor appointed under that will, Mr Colin Best, was granted probate by orders of this Court on 27 March 2023. Accordingly, the 6 month time limit expired on 29 September 2023. The application was not filed until 23 February 2024, and so the plaintiff requires leave.
The power of the Court to allow an application under the Act outside of the 6 month period is found in s 7(2)(b). The Court is empowered to grant leave if it 'is satisfied that the justice of the case requires that the applicant be given leave to file out of time'. Further, by reason of s 7(3), it is permissible for such an application to be filed even though the time limit has already expired.
In support of her application for leave, the plaintiff has filed a comprehensive affidavit which was sworn by her on 22 April 2024 (Peterson Affidavit).[4] The plaintiff has also filed an outline of submissions dated 7 June 2024 in support of her application.

The defendants to the application

[4] I note that counsel for the plaintiff made a correction to the Peterson Affidavit during the course of the hearing, which Debra confirmed should be made. The correction was not material.

The defendants to the application for leave, who I will describe shortly, have each filed notices of intention to abide the outcome on the application.[5] The application is thus unopposed.
[5] Notice to Abide dated 3 May 2024 filed by the first, second and third defendants; and Notice to Abide dated 24 July 2024 filed on behalf of the fourth and fifth defendants.
The first defendant is Mr Best in his capacity as the executor of David's estate. He was David's neighbour. Mr Best is also named as the first defendant in his capacity as a beneficiary. The wife of Mr Best, Ms Helen Best, is named as the third defendant, similarly in her capacity as a beneficiary. Ms Best was also appointed as an executor under David's will, but renounced probate.[6]
[6] Peterson Affidavit, Attachment L (probate instrument).
The fourth and fifth defendants are, respectively, the South Metropolitan Health Service and the Child & Adolescent Health Service. I understand these entities have been named as defendants on the basis they represent the interests or organisations expressly identified in the will. This appears to have occurred following communications between the executor's solicitors and the State Solicitor's Office, although I do not have any detail of these communications before me on this application, and the plaintiff's counsel has informed me he is unaware of the substance of the communications. The will itself includes express bequests to the 'Cancer Centre at Fiona Stanley Hospital' in Murdoch, and the 'Perth Children's Hospital' in Nedlands.[7] Whether these specific bequests to these organisations are valid will be an issue for another day. As matters stand, the named entities do not oppose the application for leave.
[7] Peterson Affidavit, Attachment L (cll 7.3 and 7.4 of the will).
Mr Best filed an affidavit in his capacity as the executor of the estate, which he swore on 6 May 2024 (Best Affidavit). The affidavit includes a statement of assets and liabilities of the estate, a statement of income and expenditure for the estate, and a statement of distributions made from the estate.[8] Within the affidavit, Mr Best also explains the steps he has taken to administer the estate since obtaining the grant of probate.

Relief sought by the plaintiff

[8] Best Affidavit, Attachments A1, A2 and A3.

Debra submits through her counsel that she ought be granted leave to bring a substantive claim under s 6(1) of the Act. The substantive proceeding in respect of which leave is sought (and which appears from the plaintiff's minute of proposed orders) is addressed below.
First, the plaintiff intends to seek relief to vary her late father's will by deleting cll 7.2 to 7.5 inclusive (which contain the specific bequests and the distribution of the remainder of the estate) and inserting a fresh clause which would provide that the residue and remainder of David's estate be left to the plaintiff.
At the hearing this morning, counsel proposed that any such proceedings be brought within a 45 day period, allowing the parties an opportunity to further confer and negotiate before formal proceedings are commenced. In my view, that is a sensible proposal.
Second, the plaintiff intends to seek orders in relation to the receipt by the second and third defendants (being Colin and Helen Best) of funds referable to any specific bequests and/or interim remainder distributions made prior to 23 December 2023, or such other estate matters as the Court thinks fit. This relief was sought to be amended in part by counsel for the plaintiff at the hearing this morning, to include the reference to 'specific bequests'.
The relief caught by the second order appears to involve the possible application of s 8 of the Act in relation to the assets of the estate which have been distributed, which will also require consideration as to the operation of s 65 of the Trustees Act 1962 (WA).[9] Section 65 effectively empowers the court, in certain circumstances, to order beneficiaries to pay to a claimant the value of the interest distributed to the beneficiaries from the estate. That regime also provides defences upon which a beneficiary may seek to rely.

The terms of David's will

[9] Section 8(1) of the Act provides that 'On an application for an order under this Act, the Court may make an order under section 65 of the Trustees Act 1962, in lieu of an order under this Act, in any case where the estate of the deceased, or part thereof, has been distributed among the persons entitled under the will or intestacy.'

By the terms of his will, David directed that his estate be held on trust by his executors, Colin and Helen Best (cll 4 and 7). The operative parts of the will are found in cll 7.1 to 7.5, which provide as follows:
7. My executors shall hold my estate on trust:
7.1To pay any funeral and testamentary expenses, probate and death duties, income tax, capital gains tax and other duties payable of, or in relation to, my estate;
7.2To give my real property at [address redacted] Armadale in the State of Western Australia to COLIN DOUGLAS BEST and HELEN LANE BEST as joint tenants;
7.3To sell my real property at [address redacted] St James in the State of Western Australia and to give the net proceeds of the sale to the CANCER CENTRE at FIONA STANLEY HOSPITAL of 11 Robin Warren Drive, Murdoch in the State of Western Australia, to be used for its general purposes. If the gift cannot take effect completely or at all, to the extent that it cannot take effect, to the organisation or organisations in Australia which my executors in their discretion consider most nearly fulfils or fulfils the objects I intend to benefit in the share or shares my executors think fit. The receipt of the treasurer, secretary or public officer for the time being of a beneficiary under this provision is a sufficient discharge to my executor in respect of a gift to that beneficiary;
7.4To sell my industrial unit at [address redacted] Kelmscott in the State of Western Australia and to give the net proceeds of the sale to the PERTH CHILDREN'S HOSPITAL of 15 Hospital Avenue, Nedlands in the State of Western Australia, to be used for its general purposes. If the gift cannot take effect completely or at all, to the extent that it cannot take effect, to the organisation or organisations in Australia which my executors in their discretion considers most nearly fulfils or fulfils the objects I intend to benefit in the share or shares my executors think fit. The receipt of the treasurer, secretary or public officer for the time being of a beneficiary under this provision is a sufficient discharge to my executor in respect of a gift to that beneficiary;
7.5 Subject to the preceding trusts, to divide the residue of my estate equally between COLIN DOUGLAS BEST and HELEN LANE BEST who survive me.
In essence, David bequeathed his property in Armadale to Colin and Helen as joint tenants (cl 7.2), he directed that his property in St James be sold and the net proceeds be given to the Cancer Centre, and he directed that his property in Kelmscott be sold and the net proceeds be given to the Perth Children's Hospital (cl 7.4). Further, and subject to the foregoing trusts, he directed that the residue of his estate be divided equally between Colin and Helen (cl 7.5).
David made no provision for his daughter, Debra, in his will. David's will expressly stated that he did not wish his daughter, Debra, to be informed of his death and further stated that she should not be allowed to attend his funeral (cl 11).

D. Relevant principles

The principles or guidelines applicable to an application such as the present are well understood. They were set out some years ago by Malcolm CJ sitting in the Full Court in Clayton v Aust[10] and were more recently adopted by the Court of Appeal in Wheatley v Wheatley.[11] The non-exhaustive guidelines can largely be traced to the decision of Megarry VC in Re Salmon (Dec).[12] The statement of the guidelines as summarised by the Court of Appeal in Wheatley v Wheatley is sufficient for present purposes:[13]
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 and citations omitted)
[10] Clayton v Aust (1993) 9 WAR 364.
[11] Wheatley v Wheatley [2018] WASCA 34 [56] (Martin CJ, Buss P and Murphy JA).
[12] Re Salmon (Dec) [1981] 1 Ch 170, 174 – 175.
[13] Wheatley v Wheatley [56] (Martin CJ, Buss P and Murphy JA).
Having regard to the legislative framework I have identified and the guidelines extracted above, I now propose to summarise the background facts. These matters are drawn from the Peterson Affidavit and the Best Affidavit, both of which I have carefully reviewed.

E. Evidence and background facts

As already noted, Debra is the sole child of Susan and David. Susan died on 27 December 2018 leaving no will. It appears Susan's estate was relatively substantial, although Debra was informed by her father that she would ultimately take the benefit of her parents' combined estate upon her father's death. This is the so-called 'inheritance representation' referred to by the plaintiff in her affidavit and her counsel's submissions. This tends to explain, in my view, why Debra was persuaded to disclaim any interest in her mother's estate, which passed in its entirety to her father, David. I will return to this issue in a moment.
Debra has explained in her affidavit that her father retired from work at a relatively early age (42 years) and suffered greatly from alcoholism and other ailments in his life. It therefore appears that the value of David's estate upon his death was largely attributable to the previous energy, work and investment decisions of his late wife (although I note two of the properties were in fact held by David and Susan as joint tenants). As far as Debra is aware, and to emphasise the point I have just made, David appears to have had no substantial assets of his own at the time of her mother's death, and her mother was the principal breadwinner in the relationship.[14]
[14] Peterson Affidavit [16].

Whilst she was alive, Debra's mother made regular and substantial payments to Debra to assist her in life, commencing in about 2009. The quantum of those payments is in the vicinity of $500,000 in total.[15] There is at least some evidence to the effect that David was not aware of the quantum of these payments at the time they were made, and first became aware of them in early 2019.[16] Debra has expressed the belief that her father's change in affections for her dissipated once he became aware that these payments had been made.[17]
[15] Peterson Affidavit [17] – [18], [33(a)], and Attachment B.
[16] Peterson Affidavit [33(a)].
[17] Peterson Affidavit [41].
Debra has for some time worked and lived in New South Wales and the Australian Capital Territory, but returned to Perth in January 2019 to provide assistance to her father following her mother's death. Upon returning to Canberra, Debra continued to assist her father in managing the affairs of her late mother.[18]
[18] Peterson Affidavit [24].
Debra has deposed that, whilst assisting her father, he made representations to her that Debra was to be sole beneficiary of both his assets and those assets which had been built up by her late mother.[19] Debra has further deposed that these representations were made on a number of occasions, and were on one occasion made in front of a solicitor from the firm Lynn and Brown.[20]
[19] Peterson Affidavit [33(c)].
[20] Peterson Affidavit [33(c)].
In light of the representations made by her father, Debra deposes that she did not make attempts to claim any interest in her late mother's estate, including to take an appointment as the trustee of her mother's self-managed superannuation fund. The bulk of her mother's estate was held within that superannuation fund.[21] Instead, Debra directed that any interest in or benefit from her mother's estate be given to her father.[22] On 15 March 2019, Debra executed a document whereby she consented to allowing David to apply to become the sole administrator of her late mother's estate.[23]
[21] Peterson Affidavit [33(b)].
[22] Peterson Affidavit [34(a) – (b)], and Attachment H and I.
[23] Peterson Affidavit [26].
By around May 2019, Debra recalls that her relationship with her father had deteriorated. I have already mentioned one potential explanation for this change in their relationship. David no longer answered her calls and when he finally did speak to his daughter, he sadly made a comment to Debra to the effect that he did not have a daughter, and that she was 'dead to him'.[24]
[24] Peterson Affidavit [40] - [41].
In November 2019, during a decline in his health, David granted Colin and Helen a power of attorney.[25] David made his last will in December 2019. I have already referred to the material terms of that instrument.
[25] Peterson Affidavit [44(c)].
Debra has asserted that, as a result of illness and alcoholism, her father was not in the proper state of mind when he made his will and when he gave directions as to the manner in which estate would be administered, which were directly in conflict with the representations he had earlier made to her.[26] There is evidence to the effect that David had been diagnosed with a brain growth or tumour at the rear of his skull in around May 2019 and that his cognitive abilities had deteriorated during 2019.[27] There is no medical evidence before me on this application and so I cannot make any findings in this regard. David was hospitalised at the date of his death but the duration he spent in nursing homes and in hospital is not clear on the evidence.[28]
[26] Peterson Affidavit [44(a)].
[27] Peterson Affidavit [44(a)].
[28] Peterson Affidavit [44(a)].
Prior to David's death, and between about 27 and 30 November 2022, Colin says that David made a number of gifts to Colin and his wife out of his estate.[29]
[29] Peterson Affidavit [44(f) – (g)].
David died on 7 January 2023. Colin, in his capacity as the appointed executor under the will,[30] applied for a grant of probate and obtained the grant in March 2023.
[30] Peterson Affidavit [5].
Debra has deposed that she first became aware of the death of her father on 15 November 2023, some 10 months after he had passed away. By that point, the time within which Debra could (without requiring leave) make an application under s 6(1) of the Act had expired. Debra acted quite promptly at this point by instructing solicitors in Western Australia to give notice to Colin of her potential claims. Debra's solicitors gave that notice by email sent on 23 November 2023.[31] The email stated as follows :
We act on behalf of the deceased's daughter Debra Peterson in relation to the abovenamed estate. We are writing to provide Notice of our clients [sic] intention to bring a Family Provision Act claim on the above estate and request:
1.That no distribution occur on the estate until our clients [sic] application has been heard and determined or the time provided under s 20(5) of the family Provision act [sic] expires without application to the Court, whichever is earlier.
2.That you forward a copy of the Deceased's grant of Probate with will annexed;
3.That you forward a copy of the Rule 9B statement showing the deceased's assets and liabilities as at the date of his death;
4.That we are provided with an update as to the estates [sic] management.
[31] Peterson Affidavit, Attachment N.
David's estate had been partially administered by Colin prior to receipt of the above notice from Debra's solicitors. Among other things, Colin had sold the Armadale property referred to in cl 7.2 of the will, and distributed the proceeds to himself and his wife.[32] Colin had also sold the properties referred to in cl 7.3 and cl 7.4 of the will, realising a post settlement and pre-CGT value for the estate from these sales of respectively $658,083 and $319,373.07. The gifts of the properties identified in cl 7.3 and cl 7.4 are for governmental entities. The proceeds from the sales have not yet been distributed and have been retained by the estate.
[32] Peterson Affidavit [45].
Debra has estimated that her father's estate was quite substantial at the time of his death, approaching $1.8 million. As matters stand, approximately $1 million remains undistributed by the estate, including the sum of $997,336.31 held in a Commonwealth Bank term deposit and $46,920.60 held in the trust account of the solicitors appointed by the executor.[33]
[33] Peterson Affidavit [57(l)]; Best Affidavit, Attachment A1.
Colin has also deposed that he has taken steps to recover monies owed to the estate by a company known as Both Barrels Pty Ltd, arising from a long-standing loan made by the trustee of Susan's superannuation fund.[34] The amount owing is material to the estate, being around $111,000.[35] Mr Best has deposed that the debtor company is owned and controlled by the popular comedian and entertainer Kevin 'Bloody' Wilson and his wife.[36] The state of recoverability of the loan is unclear on the evidence, but I will assume for present purposes it is a potential asset of the estate.
[34] Best Affidavit [19].
[35] Best Affidavit [23].
[36] Best Affidavit [19].

F. Disposition

The foregoing factual circumstances demonstrate, at least on the basis of the material presented on affidavit on this application without the benefit of seeing and hearing any witnesses, that any application by Debra pursuant to s 6(1) of the Act might not be straightforward.
There are matters which have a tendency to undermine any such future claim, including the evidence as to the distributions made to Debra by her mother while she was alive, which were substantial. Debra is also a public servant with a degree of security of employment.
There is evidence showing that Debra disclaimed any claim in her mother's estate, although I have explained above this is likely to have been at least partially as a result of the representations made to Debra by her father.
I also recognise that the will expressly records David's negative attitude towards Debra, in cl 11, and so Debra was plainly in his contemplation when he executed the will in December 2019. There was evidently a degree of estrangement between them.
Finally, it is evident that the estate has been partially administered.
Nonetheless, I am of the opinion that the plaintiff's claim is reasonably arguable in terms of the underlying merits of the substantive claim for further provision from the estate.[37] Put another way, it is at least reasonably arguable at this stage that a moral duty may be found to arise, having regard to community expectations, pursuant to which the deceased ought to have provided some benefit to Debra from his estate. The legal principles regarding such claims by adult children can be found in Hallen J's decision in Blendell v Byrne,[38] which were explored by Seaward J in Hill v Jennifer Patricia Murphy as beneficiary of the estate of Alec Kumar Sodhy.[39] Naturally, as Mitchell and Beech JJA emphasised in Lemon v Mead,[40] each case will depend on its circumstances, there being no description of universal application as to what adequate provision for proper maintenance will entail for a parent in respect of an adult child.
[37] Using the language favoured by Keane JA in Hills v Chalk [2008] QCA 549 [31] - [37].
[38] Blendell v Byrne [2019] NSWSC 583 [629].
[39] Hill v Jennifer Patricia Murphy as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482 [124].
[40] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [273].
I have reached this view for the following reasons, when balanced against the matters set out at [41] to [44] above:
(a)First, it is apparent that the value of her father's estate at the time of his death, which was largely comprised of assets accumulated by her late mother, was relatively sizeable.
(b)Second, the will made no financial provision for Debra whatsoever, even though she is the only child of both David and Susan.
(c)Third, the omission by her father to make any provision for Debra in his will is inconsistent with representations Debra alleges were made by her father, to the effect that she would be a substantial beneficiary of his estate. I should observe at this juncture that the affidavit evidence presented by Debra in this regard, particularly as to the representations made by her late father, is neither inherently implausible nor contrary to other undisputed facts. In the context of this application, and in the absence of contrary evidence, and for the purposes of assessing the question of leave, I am able to find that David informed Debra in or around 2019 that she would be a substantial beneficiary of his estate in due course.
(d)Fourth, Debra's personal and financial circumstances are quite modest and she has an evident need for a provision to be made from her father's estate, at least as appears on the affidavit evidence on this application. Debra is a 48 year old public servant as I have noted, living with her partner in New South Wales, and together they have a child aged 11 years. Debra emphasises that she is the only child of David and Susan and has received nothing from either estate (other than the distributions during her mother's life). Debra's personal net asset position is around $360,000, a substantial amount of which is comprised of Debra's superannuation fund.[41] Debra deposes to her financial independence concerns, concerns about her accommodation security, apparent medical conditions which may impact her future earning capacity, she has insufficient savings, and there has been damage to her family residence with a lack of funds to repair that damage.[42] I accept that, when viewed in its entirety, Debra's personal and financial position is such that a claim under the Act by her is at least reasonably arguable in the circumstances.
(e)Fifth, while I recognise that about one third of the estate has already been administered in certain respects and this is a relevant factor which can point against an extension of time being granted,[43] it must be accepted that the assets retained by the estate are substantial. Further, the most significant outgoing from the estate following the grant of probate has been a payment to the executor and his wife (Colin and Helen), in circumstances which at least require a further level of investigation. I do not make any adverse findings in this regard. However, given the identity, role and knowledge of these parties, I consider less weight should be attributed in the present circumstances to the fact that these funds have been distributed from the estate prior to the putative claimant giving notice of a claim under s 6(1) of the Act. I also note that neither of the second or third defendants have filed evidence as to their reliance on the funds distributed to them from the estate, or as to any specific prejudice they would suffer if leave was to be granted to Debra to pursue her claims.
(f)Sixth, it is relevant that David's will gifted substantial assets from the estate to the non-legal State government entity, 'Cancer Centre at Fiona Stanley Hospital' (which is now represented by the fourth defendant following discussions between the executor's solicitors and the State Solicitor's Office),[44] and to another State government organisation, 'Perth's Children's Hospital' (which is now represented by the fifth defendant). The point that is made in this regard by the plaintiff, which I am prepared to accept is at least arguable, is that these entities would not ordinarily benefit from specific bequests in priority to a child of a deceased with a need for financial provision.[45]Under the will as it stands, these governmental organisations, whilst plainly deserving institutions which serve the public good, would receive substantial payments from the estate in circumstances where no provision is otherwise made for the only child of the marriage. I also take into account the fact these entities do not oppose the grant of leave.
(g)Seventh, I accept, as counsel for the plaintiff has emphasised, that whilst there was a high degree of estrangement as between Debra and her father before his death, there is no evidence before me that this was as a result of any improper or disreputable conduct on the part of Debra. I can only infer at this stage, as Debra has deposed, that her father felt ill will towards her once he became aware that her mother had made financial gifts to Debra without disclosing that to David.[46] In the circumstances, these matters do not point against the merits of the claim which Debra proposes to bring.
[41] Plaintiff's submissions [15] and Peterson Affidavit [68].
[42] Peterson Affidavit, [69] – [70].
[43] Wheatley v Wheatley [56] and Clayton v Aust (372).
[44] Plaintiff's submissions [15(b)].
[45] Plaintiff's submissions [15(b) – (c)].
[46] Peterson Affidavit [41].
As to the length of the delay on the part of the plaintiff in giving notice of her proposed claim and in bringing this application for leave, and the overall circumstances surrounding the conduct of the plaintiff, I consider the available evidence points in favour of the grant of leave. My reasons for this are as follows:
(a)First, the length of the delay in this case is around 5 months, being from 29 September 2023 through to 23 February 2024 when the proceedings were filed. In my view, this is not an overly lengthy delay. That being said, the time period in the Act is substantive, and parties and solicitors seeking to bring claims under the Act must ordinarily initiate those claims within the statutory period.
(b)Second, on the available evidence I am able to find that the executor did not take steps to contact Debra following her father's death. This may have been as a result of the direction in the will to that effect, although the details of the conversation between Debra and Colin Best are unclear as to the reasons why he did not contact her. In any event, I can find, on the evidence, that Debra first became aware of the death of her father on 15 November 2023, when she saw details in the newspaper.
(c)Third, I accept that the delay between late September and mid‑November 2023 was therefore reasonable given that Debra was unaware of her father's death until that point in time, and had no particular reason to be on notice that he had passed away.
(d)Fourth, I accept that Debra acted with a degree of haste once she became aware of her father's passing, including instructing solicitors almost immediately and then pursuing avenues to obtain relevant documentation from various parties to assess her position. Debra instructed her solicitors to give formal notice of her claim on 23 November 2023, to which I have earlier referred. From this point, the executor, the second and third defendants (at least) were all aware of the prospect of a claim being advanced by Debra. The overall period which elapsed between mid-November 2023, when Debra became aware of her father's death for the first time, and 23 February 2024 when these proceedings were filed, is not substantial in the overall context of this matter, in my view, and the delay over this period is reasonable in the circumstances. This is not a case in which the applicant for leave has 'slept on her claim', to use the phrase mentioned in some of the authorities.[47]
(e)Fifth, the final point to note is that I accept proper notice has been given to the executor and to the beneficiaries identified in David's will. None of those persons have appeared today to oppose the application for leave and, indeed, as earlier noted, these parties have all filed notices of intention to abide by the decision of the Court and there is no evidence of specific prejudice that would be suffered by any of the defendants if leave was to be granted. The absence of any opposition is a factor which points in favour of the grant of leave, although I do not suggest it is a strong factor.
[47] Clayton v Aust (372).

G. Conclusion and orders

Accordingly, I am of the view that this is an appropriate case in which the Court should grant leave pursuant to s 7(2)(b) of the Act to permit the plaintiff to bring an application under s 6(1) of the Act. That is, I am satisfied that the justice of the case requires that the plaintiff be given leave to file her proceeding out of time. To deny the plaintiff leave would likely leave her without redress against any party, which would not be a just outcome in all the circumstances, in my respectful view.
I should observe, for the sake of completeness, that counsel for the plaintiff also proposed an order that would permit the plaintiff to rely on the affidavits sworn by Ms Peterson and Mr Best in any future proceedings. I must say I see good sense in that approach, in order to minimise the costs arising from future proceedings, but having not heard from Mr Best's solicitors on that issue, I have indicated to counsel I would refrain from making that order today. I propose that it be the subject of conferral between the parties in the context of any future substantive proceedings, together with the broader question whether the plaintiff has leave to rely on all the materials filed in the present proceeding in any future proceedings.
Finally, in the interests of judicial efficiency having regard to my knowledge of the dispute, I will make administrative arrangements within the Court to the effect that any future substantive proceedings brought by the plaintiff be listed before me.
I will hear from counsel as to the appropriate orders which should now be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TL
Associate to the Honourable Justice Lundberg
25 JULY 2024