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…

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 Peterson v Best

Details

AGLC: Peterson v Best [2024] WASC 266
Case: [2024] WASC 266
Decision Date: 25 JULY 2024

CaseChat Overview and Summary

The matter of Peterson v Best was heard in the Supreme Court of Western Australia, where the deceased's daughter sought leave to bring an application outside the six-month statutory period as per the Family Provision Act 1972 (WA). The daughter was unaware of her father's death until after the statutory period had expired, resulting in a five-month delay in filing her application. The estate had been partially administered, with some assets already distributed, but significant assets remained undistributed. The executor and named beneficiaries in the will did not oppose the daughter's application for leave.

The primary legal issue before the court was whether the daughter should be granted leave to apply outside the statutory period, considering the unique circumstances of the case. The court had to balance the statutory requirement of the six-month period with the equitable principle that justice should be served. The court considered the daughter's unawareness of her father's death, the executor and beneficiaries' lack of opposition, and the estate's partial administration as factors relevant to the application.

In determining the matter, the court recognised that strict adherence to the statutory period could result in an unjust outcome given the daughter's unawareness of her father's death. The court emphasised the importance of considering the specific circumstances of each case when deciding whether to grant leave. The lack of opposition from the executor and named beneficiaries further supported the daughter's application. The court concluded that justice of the case required granting the daughter leave to bring her application out of time.

The court ordered that the daughter be given leave to bring her application outside the statutory period. This decision recognised the unique circumstances and allowed the daughter to pursue her claim for equitable provision from her father's estate.

Orders