Prince v Harry Donald John Prince, the Executor of the Estate of the Late Tanya Prince

[2019] WASC 436

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PRINCE -v- HARRY DONALD JOHN PRINCE, THE EXECUTOR OF THE ESTATE OF THE LATE TANYA PRINCE [2019] WASC 436

CORAM:   MASTER SANDERSON

HEARD:   21 OCTOBER 2019

DELIVERED          :   28 NOVEMBER 2019

FILE NO/S:   CIV 1044 of 2019

BETWEEN:   KASEY SHANE PRINCE

Plaintiff

AND

HARRY DONALD JOHN PRINCE, THE EXECUTOR OF THE ESTATE OF THE LATE TANYA PRINCE

First Defendant

HARRY DONALD JOHN PRINCE AS BENEFICIARY OF THE ESTATE OF THE LATE TANYA PRINCE

Second Defendant

Catchwords:

Family Provision Act - Application for extension of time to bring proceedings - Estate of no, or very little value - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Non-Contentious Probate Rules 1967 (WA)

Result:

Application for extension of time dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr J T London
First Defendant	:	Ms C H Thompson
Second Defendant	:	Ms C H Thompson

Solicitors:

Plaintiff	:	Robertson Hayles Lawyers
First Defendant	:	Fourlion Legal
Second Defendant	:	Fourlion Legal

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

Clayton v Aust (1993) 9 WAR 364

Scott v Hamilton [2014] WASC 365

MASTER SANDERSON:

1. This was the plaintiff's application by originating summons for an extension of time to bring an action under the Family Provision Act 1972 (WA) (the Act). The plaintiff is the son of the late Tanya Prince (deceased) who died on 8 August 2017. He is presently 23 years of age. The deceased is survived by the plaintiff, his younger brother Jake Daniel Prince and her estranged husband, the defendant.

2. Probate of the deceased's will was granted to the first defendant on 28 September 2017.  The first defendant is the plaintiff's father.  To comply with the time limit prescribed in the Act any application for further provision should have been commenced by 28 March 2018.  The plaintiff's application for leave to extend the time period was filed on 11 January 2019.  So, the plaintiff is seeking an extension of time which is 9 ½ months beyond the six month time limit prescribed in the Act.

3. The will of the deceased effectively grants the whole of the deceased's estate to the second defendant.  The plaintiff does not receive any portion of the estate.  The main argument between the parties was as to the value of the estate.  The first defendant in his capacity as executor maintained that the estate was of no value or was perhaps insolvent.  The plaintiff put the value of the estate at around $400,000 but accepted further inquiry would be needed to ascertain its precise value.  Before dealing with this issue I should briefly set out the principles governing an application for an extension of time.  The parties were in agreement as to the applicable principles and were largely in agreement as to the issues to be determined in this particular application.

4. Both parties relied on the Full Court decision of Clayton v Aust (1993) 9 WAR 364. The facts as relevant to the court's discretion are:

   i)the…