Smart v Robyn Louise Power as executor of the estate of Irene Jean Okle - [2021] WASC 18

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SMART -v- ROBYN LOUISE POWER as executor of the estate of IRENE JEAN OKLE [2021] WASC 18
CORAM:   ACTING MASTER STRK
HEARD:   ON THE PAPERS
DELIVERED          :   22 JANUARY 2021
FILE NO/S:   CIV 2858 of 2019
BETWEEN:   SUSAN FAYE SMART
First Plaintiff
AINSLIE JOY PERKUSICH
Second Plaintiff
AND
ROBYN LOUISE POWER as executor of the estate of IRENE JEAN OKLE
First Defendant
MICHAEL JOHN PERKUSICH as executor of the estate of IRENE JEAN OKLE
Second Defendant

Catchwords:

Family Provision Act 1972 (WA) - Application for extension of time to bring application - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Trustees Act 1962 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Cullen Macleod Lawyers
Second Plaintiff	:	Cullen Macleod Lawyers
First Defendant	:	Macdonald Rudder
Second Defendant	:	Macdonald Rudder

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

Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Devereaux v Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Drake v Bradshaw [2018] WASCA 78
Lysaght v Lysaght [2018] WASC 88
Power v Smart [2018] WASC 168
Power v Smart [2018] WASC 168(S)
Re Salmon (Dec) [1981] Ch 167
Smart v Power [2019] WASCA 106
Wheat v Wisbey [2013] NSWSC 537
Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley [2018] WASCA 34

ACTING MASTER STRK:

The plaintiffs (respectively, Susan and Ainslie), are the adult daughters of the late Irene Jean Okle, who died on 21 August 2013. In these reasons, I refer to members of the deceased's family by their first name. I do so for convenience, and without intending any disrespect.
On 23 September 2011, the deceased executed a will (the 2011 Will). The 2011 Will provided that the executors of the deceased's estate would be the defendants (respectively, Robyn and Michael), who are two of the deceased's five grandchildren. The beneficiaries under the 2011 Will are eight of the deceased's ten great-grandchildren. No provision was made by the deceased under the 2011 Will for Susan or Ainslie.
An application for provision out of the estate of any deceased person may be made under the Family Provision Act 1972 (WA) by or on behalf of, among others, a child of the deceased living at the date of death of the deceased, or born within ten months after the deceased's death.[1] However, no such application shall be heard by the court unless the application is made within six months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.[2] A motion for leave to file out of time may be made at any time, notwithstanding that the six month period has expired.[3]
[1] Family Provision Act 1972 (WA) s 7(1)(c).
[2] Family Provision Act s 7(2).
[3] Family Provision Act s 7(3).
Probate of the 2011 Will was granted on 3 July 2018 and the time for bringing proceedings for provision under the Family Provision Act expired on 3 January 2019. No application was made on behalf of Susan nor Ainslie within six months of the grant. On 2 August 2019, a significant part of the estate was distributed by the executors to a number of the beneficiaries under the 2011 Will.
Susan and Ainslie commenced these proceedings for leave to file out of time by originating summons filed on 24 October 2019, more than nine months after the six month period provided for in s 7(2)(a). Robyn and Michael, in their capacity as executors, are the only named defendants and they oppose the application. The beneficiaries under the 2011 Will have not been joined.
Unless by this proceeding leave to commence an application out of time is granted, Susan and Ainslie are unable to bring an application pursuant to the Family Provision Act s 6(1) for provision from the estate of the deceased.
For the reasons set out below, I am satisfied that the justice of the case requires that Susan and Ainslie be given leave to file out of time.
In these reasons for decision, I deal with the following matters:
(1)Background and the application.
(2)Standing.
(3)The applicable principles - leave to commence out of time.
(4)The power to make orders after distribution.
(5)The evidence:
(a)The deceased, the 2011 Will and the deceased's estate.
(b)The personal circumstances of Susan and Ainslie.
(c)Susan and Ainslie's relationship with the deceased.
(d)Events after the death of the deceased and the explanation proffered for the delay.
(6)Disposition.
(7)Conclusion and orders.

Background and the application

It is necessary to first outline some uncontroversial background matters.
In September 2016 and by a proceeding known as CIV 2665 of 2016 (the Solemn Form proceeding), Robyn and Michael sought an order that the court pronounce the force and validity of the 2011 Will in Solemn Form. In that proceeding, Susan and Ainslie disputed the validity of the 2011 Will, and denied that the 2011 Will was the last will and testament of the deceased on the following grounds:
(a)the deceased lacked testamentary capacity at the time of making the 2011 Will; and/or
(b)the deceased did not know and approve of the contents of the 2011 Will and its effect; and/or
(c)the deceased was prevented by the undue influence of Robyn from exercising her free will when making the 2011 Will.
Susan and Ainslie claimed that the valid will of the deceased was a will executed by the deceased on 14 February 1998 (the 1998 Will). They sought an order that the court pronounce the force and validity of the 1998 Will in Solemn Form.[4]
[4] Power v Smart [2018] WASC 168 [2] ‑ [3].
Following a trial and for the reasons delivered on 13 June 2018, orders were made by Derrick J pronouncing the force and validity of the 2011 Will in Solemn Form: Power v Smart[2018] WASC 168. Reasons concerning costs following judgment were delivered on 27 July 2018: Power v Smart [2018] WASC 168(S). No order as to costs was made against Susan and Ainslie, and it was ordered that Susan and Ainslie were to bear their own costs of the action.
On 3 July 2018, Susan and Ainslie appealed against the primary judge's decision pronouncing the force and validity of the 2011 Will (the appeal). None of the grounds of appeal were made out and the appeal was dismissed on 2 August 2019: Smart v Power [2019] WASCA 106. Susan and Ainslie were ordered to pay the executors' costs of the appeal on a party/party basis to be taxed if not agreed, which costs were allowed by consent in the amount of $45,000.

The application

Susan and Ainslie accept that they are out of time in which to make an application under the Family Provision Act, and by originating summons filed on 24 October 2019, Susan and Ainslie seek the following relief:
1.An order pursuant to section 7(2)(b) of the Family Provision Act1972 that the plaintiffs have leave to bring an application out of time pursuant to section 7(1) of the Family Provision Act 1972;
2.Such further order or orders or relief as this Honourable Court considers necessary or appropriate; and
3.An order that the costs of this application be paid out of the Estate of the Deceased.
The application is supported by the affidavits of Susan and Ainslie, sworn on 23 October 2019 and filed in redacted form on 20 December 2019. The redaction came about by an order of the case management registrar with the consent of the parties pursuant to the Rules of the Supreme Court 1971 (WA) O 43 r 16 on 12 November 2019.
Robyn and Michael are named as defendants in the proceeding, joined in their capacity as executors of the estate of the deceased. An appearance was filed on their behalf.
Robyn and Michael rely on the one affidavit sworn by them and filed on 17 January 2020 in opposition to the application. At par 12 of that affidavit, Robyn and Michael state that they also rely on the facts found to be true by Derrick J and set out in his Honour's reasons for decision.
The application comes before me to be determined on the papers. The parties each rely upon the following written submissions filed in accordance with directions made in the proceeding:
(1)the plaintiffs' submissions filed 24 February 2020;
(2)the defendants' submissions filed 3 March 2020;
(3)the plaintiffs' reply to the defendants' submissions filed 10 March 2020;
(4)the plaintiffs' supplementary submissions filed 24 March 2020; and
(5)the defendants' submissions in response to the further submissions of the plaintiffs filed 24 March 2020.

Standing

The Family Provision Act s 6 empowers the court in defined circumstances to order that provision be made out of the estate of a deceased person to persons falling within a stipulated category. Section 7(1) identifies categories of persons by or on behalf of whom an application under s 6(1) may be made. One such category is a child of the deceased living at the date of the death of the deceased, or born within ten months after the deceased's death.[5]
[5] Family Provision Act s 7(1)(c).
Susan and Ainslie are the only children of the deceased, and both were living at the date of death of the deceased. Susan and Ainslie have standing to bring this application for leave, and upon leave being granted, an application pursuant to the Family Provision Act s 6(1) for provision from the estate of the deceased.

The applicable principles - leave to commence out of time

This application for leave is made pursuant to the Family Provision Act s 7(2)(b), and under that section, the court must be satisfied that the justice of the case requires that the applicants be given leave to file out of time.
In Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley,[6] the Court of Appeal summarised the principles to be applied in determining an application to extend time.[7]
[6] Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley [2018] WASCA 34.
[7] Wheatley [54]-[63].
As noted, the time limit provided by s 7(2)(a) is not a mere procedural limit. An applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.[8]
[8] Wheatley [54] referring to Re Salmon, Deceased [1981] Ch 167 (175), referenced and reproduced in Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14 [39]; Clayton v Aust (1993) 9 WAR 364, 366-367.
As observed in Wheatley at [56], in Clayton v Aust,[9] the Full Court, with reference to the decision in Re Salmon, Deceased,[10] accepted that in an application to extend time in this context, the court would at least ordinarily have regard to the following non-exhaustive guidelines.
[9] Clayton (366 – 367).
[10] Re Salmon, Deceased (175-177).
First, the discretion is unfettered. No restrictions or requirements of any kind are laid down in the Family Provision Act. The discretion is to be exercised judicially and in accordance with what is just and proper.[11]
[11] Clayton (366).
Secondly, 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 Family Provision 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 time.[12]
[12] Clayton (366 ‑ 367).
Thirdly, 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.[13]
[13] Clayton (367).
Fourthly, 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 the time has expired.[14]
[14] Clayton (367).
Fifthly, it is relevant to consider whether or not the estate had been distributed before a claim under the Family Provision 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 then if it lies merely in prospect.[15]
[15] Clayton (367).
Sixthly, it is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody.[16]
[16] Clayton (367).
The applicants must persuade the court that the justice of the case, having regard to all relevant facts and circumstances and not merely those applicable to Susan and Ainslie, require that they be given an extension of time.[17] Justice demands that a decision be made on all the relevant facts.[18]
[17] Drake v Bradshaw [2018] WASCA 78 [60]; Grigoriou v Nitsos [1999] WASC 42 [16].
[18] Grigoriou v Nitsos [20].
As to the second of the guidelines, as Mitchell J observed in Craig v Craig,[19] in Clayton:[20]
The factor which Malcolm CJ saw as relevant was 'has the applicant got an arguable case on the merits?'.
In Clayton the Master had concluded that the case of the appellant was 'weak on the merits or barely arguable'. This conclusion was reached on the basis that a conflict of evidence on affidavits was likely to be resolved against the appellant in that case. The master was found to have erred in adopting this approach in a situation where the evidence in the competing affidavits had not been tested by cross-examination, and in approaching the matter on the basis that the appellant's case was weak or barely arguable. (footnote omitted)
[19] Craig v Craig [2015] WASC 109 [34] ‑ [35].
[20] As stated in Wheatley [57].
As to the matter of whether an applicant has an arguable case, the Court of Appeal in Wheatley observed:[21]
Moreover, as Steytler P observed in Andre, where there is an arguable case, the strength of that case may be an important factor to be considered in the overall exercise of discretion. However, there will often be cases where it is difficult to undertake a more precise assessment of the merits other than to form an overall conclusion that the case is arguable. That is because the application is conventionally determined on the papers, and the court is not in a position to resolve contested evidentiary matters concerning the underlying merits of any claim. There may, of course, be some cases where the underlying material facts are uncontested, or where admissions have been made, which enable the court to assess with some degree of confidence the strength of the applicant's case. Absent such matters, and where the applicant's own affidavit evidence is not inherently implausible or contrary to the undisputed facts and points to the existence of an arguable claim, the court will often be left in the position where it can do no more than conclude that the applicant has demonstrated an arguable case on the merits.
It should be added that the above observations are directed only to the consideration of whether the applicant has an arguable claim under s 6(1) of the Act on the merits. In relation to the court's consideration of matters such as the nature, extent and reasons for the delay, the court will need to make findings of fact about those matters on the evidence presented. (original emphasis) (footnotes omitted)
[21] Wheatley [58] ‑ [59].
As a matter of law, once it appears that an applicant has an arguable case, it is not inappropriate on an application for extension of time to embark on an evaluation of the strength or weakness of that case.[22]
[22] Drake v Bradshaw [29].
As observed by Mitchell J in Craig v Craig,[23] the significance of default by solicitors in bringing an application under the Family Provision Act was considered by the court in Grigoriou v Nitsos.[24] In that case Ipp J, with whom White and Steytler JJ concurred, observed that:
In my opinion, where delay in making an application in terms of s 7(1) is due to the conduct of an applicant's solicitors, the 'justice of the case' requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435 and Re Traeger deceased [1948] SASR 248, both being cases involving a failure by solicitors to give timeous notice of applications under legislation similar to the Inheritance (Family and Dependants Provision) Act. In both cases the reasonableness of the conduct of the applicant, as well as that of the applicant's solicitors, was regarded as relevant. See also Bourke v Kecskes [1967] VR 894 (which was an application for the dismissal of an action for want of prosecution), where Lush J examined the question whether 'it is fair to place on the facts the interpretation that the plaintiff was passively accepting a situation which he ought to have realised was wrong' (because of unreasonable delay on the part of his solicitor).
[23] Craig v Craig [36].
[24] Grigoriou v Nitsos [17].

The power to make orders after distribution

On 2 August 2019, a significant part of the estate was distributed by the executors to beneficiaries under the 2011 Will.
As observed in Wheatley at [49] to [53], the Family Provision Act contains provisions relating to the circumstance where the estate has been distributed. They are reproduced below.
Section 8 of the Family Provision Act provides:
8. Orders after distribution of estate
(1)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.
(2)Where the Court, in exercise of the power conferred by subsection (1), makes an order under section 65 of the Trustees Act 1962, it shall have the same powers in respect of that order as it has in respect of an order made under this Act.
Section 9 provides:
9. Order not to be inequitable as to assets already distributed
In determining whether, and in what way, provision ought to be made by an order, the Court shall have regard to the provisions of section 65(8) of the Trustees Act 1962.
Section 10 provides:
10. Order to take effect as codicil or as a devolution on intestacy
Every provision made by an order shall, subject to this Act, operate and take effect either as if the same had been made by a codicil to the will of the deceased executed immediately before his death or, in the case of intestacy, as a modification of the applicable rules of distribution.

The Trustees Act 1962 (WA) s 65, referred to in the Family Provision Act s 8 and s 9, provides, relevantly for present purposes, as follows:
65. Deceased estate, claims made after distribution of, tracing, following assets
(1) This section applies where a trustee has distributed any assets forming part of the estate of a deceased person or subject to a trust, and there is nothing in any Act to prevent the distribution from being disturbed.
(2)Where this section applies, the Court may make an order on a claim, being –
(a) an application under the Family Provision Act 1972; or
…
any of which application or claims are, hereinafter in this section, called the claim.
(3) An order under subsection (2) may provide that –
(a) any person to whom any assets, to which the section applies, were distributed, or his personal representative, shall pay to the person making the claim or to the trustee a sum not exceeding the value of those assets; or
(b)any person, who has received, otherwise than in good faith and for valuable consideration, any interest in any assets, to which this section applies, from the person to whom they were distributed or his personal representative, shall pay to the person making the claim or to the trustee a sum not exceeding the value of that interest;
and for the purpose of giving effect to that order the Court may make such further order as it thinks fit.
(4)The remedies given to any person by this section are in addition to all other rights and remedies (if any) available to that person, and nothing, other than the provisions of subsection (7) and (8), restricts those other rights and remedies.
(5)Subject to the provisions of subsection (6), an order under this section shall not be made by the Court –
(a) where the claim is an application for an order under the Family Provision Act 1972, unless -
(i)the application is made within the period specified in section 7(2)(a) of that Act; or
(ii)leave to file out of time has been given under section 7(2)(b) of that Act;
…
(8)Where a trustee has made a distribution of any assets forming part of the estate of a deceased person or subject to a trust, relief (whether under this section or in equity or otherwise) against any person other than the trustee or in respect of any interest of any such person in any assets so distributed and in any money or property into which they have been converted, shall be denied, wholly or in part, if the person from whom relief is sought received the assets or interest in good faith and has so altered his position in reliance on his having an indefeasible interest in the assets or interest, that, in the opinion of the Court, having regard to all possible implications in respect of the trustee and other persons, it is inequitable to grant relief or to grant relief in full. (emphasis added)

The evidence

The following evidence, in the broad, is not in contest on the material before me. For the purpose of the application, I accept the following, save to the extent expressly indicated.

The deceased, the 2011 Will and the deceased's estate[25]

[25] The following evidence uncontroversial and is consistent with the findings made by Derrick J in Power v Smart [6] ‑ [16], summarised by the Court of Appeal in Smart v Power [8] ‑ [16].

The deceased was born on 4 July 1920 and died on 23 August 2013 at the age of 93.
On 28 October 1939, the deceased married Cyril Okle.
In 1943, Cyril and the deceased bought a property at 11 Bateman Way in Mt Pleasant. The deceased and Cyril lived at this address together until Cyril died in 1975.
In 1986, the deceased subdivided the land at 11 Bateman Way. From this point on she lived at 11B Bateman Way. The deceased remained at this address for the rest of her life, save for when she was living in aged care homes.
The deceased and Cyril had two daughters, Susan and Ainslie. Susan was born on 11 September 1950 and Ainslie was born on 5 March 1941.
Ainslie has three adult children, namely: Stevan Perkusich; Robyn (the first defendant and co‑executor of the deceased's estate); and Michael (the second defendant and co‑executor of the deceased's estate).
Stevan, Robyn and Michael all have children: Stevan has two, one of whom is called Bethany who was born in 2003; Robyn has two; and Michael has four children. Stevan also has a stepson, the child of Stevan's wife.
Susan has two adult children, namely: Andrew Smart and Meagan Smart.
Meagan has two children, both born after the deceased had died.

The 2011 Will

Orders were made pronouncing the force and validity of the 2011 Will in Solemn Form. The terms of the 2011 Will were summarised by the Court of Appeal in Smart v Power [36] ‑ [40], and I reproduce below that summary.
Clause 1 of the 2011 Will is in the following terms:
I REVOKE all former Wills and Codicils made by me AND DECLARE this to be my last Will and Testament.
By cl 2 of the 2011 Will, the deceased appoints Robyn and Michael to be the executors and trustees (referred to thereafter in the document as 'my Executor') of her estate.
Clause 3 of the 2011 Will provides:
I GIVE all of my real and personal estate, wheresoever situated (my estate) to my Executor UPON THE FOLLOWING TRUSTS:
(a)to pay from my estate all my just debts, funeral and testamentary expenses, probate, unpaid taxes and other like duties and taxes payable on or in respect of my estate and the costs involved in the execution of the trusts of my will; and
(b)to HOLD the balance then remaining (the residue of my estate) on trust for such of my great grandchildren who are the biological children of my grandchildren who survive me and attain the age of 21 years and if more than one as tenants in common in equal shares. (original emphasis)
Clause 4 of the 2011 Will specifies the powers that Robyn and Michael have as executors and trustees in addition to the powers conferred by law. One of the powers, which is specified in cl 4(e), is as follows:
[T]o apply the whole or any part of the income and capital of the vested or contingent share of any beneficiary towards the maintenance, education, medical needs, evolving needs, welfare, advancement, benefit or support of such beneficiary[.]
Clause 5 of the 2011 Will, which is headed 'Declaration', is in the following terms:
I have considered my daughters Ainslie Joy Perkusich and Susan Faye Smart. Both daughters have been adequately provided for by me during my lifetime and I feel sure they will both agree to my estate being held in trust as directed for the benefit of their own grandchildren. (original emphasis)
The deceased has ten great‑grandchildren who are biological children of her grandchildren. Meagan's children were born after the death of the deceased, and therefore are not great-grandchildren who survived the deceased. Eight of the deceased's ten great‑grandchildren are beneficiaries under the 2011 Will, and no provision was made for any grandchild of Susan.
Susan and Ainslie both contend that the assertion by the deceased at cl 5 of the 2011 Will (that is, that Susan and Ainslie had been adequately provided for by the deceased during her lifetime), is also inaccurate and in their respective affidavits set out the evidence which they say verifies their position.

The deceased's estate

A grant of probate was made on 3 July 2018. In the Non‑contentious Probate Rules 1967 (WA) r 9B statement of assets and liabilities of the deceased, the executors state that the assets of the deceased as at the date of her death were first, $493,266.84 in a Commonwealth Bank account; and secondly, $287,442 by way of an accommodation bond from Anchorage Aged Care.[26] The amounts total $780,708.84. There were no liabilities.
[26] Affidavit of Susan Faye Smart par 13, 'SFS3'; affidavit of Ainslie Joy Perkusich par 14, 'AJP3'.
The evidence of Robyn and Michael is as follows.[27]
[27] Affidavit of Robyn Louise Power and Michael John Perkusich par 6 ‑ 11.
The appeal was dismissed on 2 August 2019. As at that date, five of the deceased's great-grandchildren beneficiaries were over the age of 21. On 2 August 2019, Robyn and Michael paid $61,250 to each of the beneficiaries who were over the age of 21. (That is, they distributed $306,250 of the deceased's estate.)
At the same time, Robyn and Michael set up three bank accounts in their names as trustees for each of the great‑grandchildren beneficiaries under the age of 21, depositing $61,250 into each account. (That is, they deposited $183,750 of the deceased's estate.)
The estate incurred legal fees in the amount of $294,000 in the action to prove the will and $76,000 in opposing the appeal. $45,000 is to be paid by Susan and Ainslie by way of costs. (As noted above, Derrick J ordered that there be no order as to costs against Susan and Ainslie in the Solemn Form Proceeding, and that the Susan and Ainslie bear their own costs of that action. The amount of $45,000 payable by Susan and Ainslie concerns the costs of the appeal).
Except for the amounts held for the beneficiaries under the age of 21 (together $183,750), the executors have retained and held $13,804.87 to cover anticipated estate expenses and legal costs, mainly the costs of taxing the costs of the appeal.
In addition to those costs, the estate is now liable for the costs of this proceeding and, if leave is given, the cost of the proceeding to vary the will.
Robyn and Michael do not hold funds to instruct lawyers to defend any claim made under the Family Provision Act should leave be given unless Susan and Ainslie pay the agreed costs of the appeal.
The evidence of Robyn and Michael as to the costs incurred by the estate, the distributions made to five beneficiaries, and the deposit of money into trust accounts on behalf of three beneficiaries cannot be readily reconciled with the total value of the assets of the deceased recorded by the executors in the rule 9B statement of assets and liabilities. It is possible that estate of the deceased was greater than the assets recorded by the executors in the rule 9B statement of assets and liabilities. The discrepancy need not be resolved for the purpose of this application. For present purposes, I accept Robyn and Michael's evidence in relation to the status and size of the estate.

The personal circumstances of Susan and Ainslie

Susan and Ainslie describe their respective personal circumstances in the affidavits filed in support of the application as follows.

Personal circumstances of Susan

Susan deposes to having been married and widowed suddenly in October 1994. In 2004, Susan began a relationship with Harvey Trezise. It is not clear from Susan's affidavit whether she remained in a relationship with Harvey as at the date the deceased died, or is presently in that relationship.
Susan was a teacher, having retired on health grounds in or around November 2013.
Susan receives a disability support pension and secures a monthly income from her superannuation, which at the time of her retirement was approximately $180,000. Susan relies to a significant degree on Meagan for financial support.
Susan describes a number of workplace incidents, the result of which is that she is no longer able to walk unaided. She walks with the aid of a walking stick or elbow crutch. Susan takes pain medication and requires occasional cortisone injections. She previously participated in hydrotherapy three times per week but due to other health concerns, she no longer does this. Instead, Susan has a home‑based exercise program which was designed for her by a physio‑therapist.
Susan suffers with hyperthyroidism, high blood pressure, high cholesterol and parathyroidism. She manages these conditions with various medication and routine blood tests and biannual bone density tests.
Susan has had accessibility rails fitted at her home and some other household aids to provide her with mobility assistance. She also receives cleaning services from Silver Chain as part of a government subsidised package.
At the table at par 100 of her affidavit, Susan estimates her income, expenditure, assets and liabilities as at the date of the deceased's death. The table is reproduced at sch A to these reasons, together with Susan's explanatory notes. In summary, as at the date of death of the deceased, Susan's expenditure exceeded her income and her net asset position was about $322,480.
At the table at par 101 of her affidavit, Susan estimates her income, expenditure, assets and liabilities as at the date of her affidavit. The table is reproduced at sch B to these reasons, together with Susan's explanatory notes.
In summary, as at the date of swearing her affidavit, Susan's expenditure continued to exceed her income and her net asset position was about $153,000. The table reveals that Meagan continues to financially support Susan.

The Dunsborough Block

The deceased and Cyril had owned a clock of land at 5 Nicholas Court in Dunsborough (the Dunsborough Block), from about December 1966. Following the death of Cyril in 1975, on or around August 1976, a half share of the Dunsborough Block was transferred into Susan's name and she became a joint registered proprietor of the Dunsborough Block together with the deceased. Susan did not pay anything for the share of the Dunsborough Block. Susan deposes that it was her late father's expressed wish that his share in the Dunsborough Block go to Susan.[28]
[28] Affidavit of Susan Faye Smart par 18, 19, 21, 22, 'SFS4'.
In or around 19 February 1985, the deceased transferred her share of the Dunsborough Block to Ainslie, and following the transfer Susan and Ainslie owned the Dunsborough Block as joint tenants.[29]
[29] Affidavit of Susan Faye Smart par 23 ‑ 24, 'SFS4'.
On 20 January 1995, Susan transferred her share in the Dunsborough Block to Meagan for no consideration, following which Meagan and Ainslie owned the Dunsborough Block as tenants in common in equal shares.[30]
[30] Affidavit of Susan Faye Smart par 23 ‑ 24, 'SFS4'.
Susan deposes to the circumstances surrounding the transfer of the Dunsborough Block to Meagan, and in particular the deceased's wishes in relation to the Dunsborough Block.[31] Susan was initially reluctant to transfer her share of the Dunsborough Block to Meagan, as Susan considered it an asset to be of use to Susan in her retirement. However, Susan also deposes to the deceased having told her that if she did what the deceased wanted by transferring her half share to Meagan, the deceased would leave Susan her home at 11B Bateman Road, Mt Pleasant in her will. Susan deposes that on that basis, she agreed to transfer her share in the Dunsborough Block to Meagan.
[31] Affidavit of Susan Faye Smart par 27 ‑ 33.
As at the date of the deceased's death, Susan had no interest in the Dunsborough Block. The deceased had made a will in February 1998 which among other things, provided for 11B Bateman Road, Mt Pleasant to be left to Susan. However, the deceased had sold her home at 11B Bateman Road, Mt Pleasant on about 18 June 2018, and by the 2011 Will, the deceased did not make provision for Susan.

Personal circumstances of Ainslie

Ainslie's evidence reveals that she was married to John Perkusich. However, it is not clear from the evidence if Ainslie was married as at the date the deceased died, or is presently in that relationship.
Ainslie is a retiree in receipt of an aged pension. She has received a pension since 2002.
Ainslie resides at Bethanie Geneff Hostel in Innaloo. She is there as a government funded resident as Ainslie deposes to not having the capacity to pay a bond from her own resources.
Ainslie has a number of health issues, including arthritis, osteo‑arthritis, fibromyalgia, cholesterol and heart problems. Ainslie requires a number of different medications which are administered to her on a daily basis.
At the table at par 49 of her affidavit, Ainslie estimates her income, expenditure, assets and liabilities as at the date of the deceased's death. While the information is not complete, it appears that Ainslie's only income was a monthly pension, her expenses were minimal and she held an interest in a Dongara property. The table is reproduced at sch C to these reasons, together with Ainslie's explanatory notes.
At the table at par 50 of her affidavit, Ainslie estimates her income, expenditure, assets and liabilities as at the date of her affidavit. The table is reproduced at sch D to these reasons, together with Ainslie's explanatory notes.
In summary, as at the date of swearing her affidavit, Ainslie's income solely remained her aged pension, all but $241.19 per month is spent on her accommodation and her net asset position was about $133,333.

The Dunsborough Block

On 19 February 1985, the deceased transferred her share in the Dunsborough Block to Ainslie. From 19 February 1985 to 30 December 1999, Ainslie with Susan were the registered proprietors of the Dunsborough Block as joint tenants.
Ainslie deposes to the circumstances in which she came to have transferred to her the Dunsborough Block. Ainslie deposes that while she does not recall the specific words used, or precisely when the conversation took place, she recalls that the deceased told her that the deceased wanted to transfer the Dunsborough Block into Ainslie's name as the deceased was on an aged pension and the Dunsborough Block was her only asset. Ainslie's evidence is that the deceased said that if the deceased sign to Ainslie her half share in the Dunsborough Block, the deceased would still get her full pension.[32]
[32] Affidavit of Ainslie Joy Perkusich par 23.
After Susan transferred her interest in the Dunsborough Block to Meagan, Ainslie and Meagan owned the Dunsborough Block as tenants in common in equal shares.
Ainslie deposes that despite the transfers of the Dunsborough Block, it was always Ainslie's understanding and belief that the Dunsborough Block 'essentially still belonged to the deceased.' Ainslie says that she held this belief because the deceased continued to pay rates, maintenance and associated costs of the Dunsborough Block. Further, when speaking of the Dunsborough Block, even after the various transfers, the deceased always referred to the Dunsborough Block as 'her block'.[33]
[33] Affidavit of Ainslie Joy Perkusich par 25.
Ainslie deposes that on or around 30 December 1999, she transferred the Dunsborough Block to Meagan for the sum of $50,000, which was less than the value of Ainslie's interest at that time. While Ainslie does not recall having spoken with the deceased about the Dunsborough Block around the time of the transfer, in Ainslie's affidavit, she explains the basis upon which she believed the transfer was consistent with the deceased's wishes.
As at the date of the deceased's death, Ainslie had no interest in the Dunsborough Block. By the 2011 Will, the deceased made no provision for Ainslie.

Costs

The evidence of Robyn and Michael suggest that the costs of the appeal, being $45,000, remains an amount unpaid by Susan and Ainslie and an outstanding liability.

Susan and Ainslie's relationship with the deceased

Susan

Susan's evidence is that for most of the deceased's life, she and the deceased had what Susan would consider to be a close relationship. Susan and the deceased spoke and visited each other frequently. The deceased did not have a driver's licence and Susan would often drive the deceased to medical appointments, shopping and generally when they spent time together.
After the death of Cyril, the deceased had become the registered proprietor of the Dunsborough Block, as surviving joint tenant. In August 1976, a half share in the Dunsborough Block was transferred to Susan by the deceased. The deceased also made the 1998 Will, leaving the property at 11B Bateman Way, Mt Pleasant to Susan. In September 2006, Susan and Meagan were appointed jointly to hold powers of attorney for the deceased. These actions support Susan's evidence as to her bond and relationship with the deceased at the time.

In 2004, Susan began a relationship with Harvey Trezise. Harvey often came with Susan to visit the deceased and to take her out for lunch or day trips. Harvey would also help the deceased around the house with general maintenance and labour.
In 2005 and 2006, Susan would visit and speak with the deceased regularly. She visited the deceased's home twice per week. Around this time, Susan began helping the deceased with her finances. Susan also attended to all of the deceased gardening, most of her house work and also cooked for the deceased.
Susan's evidence is that by 2006, she was caring a lot for the deceased, which included attending to the following tasks: driving the deceased to appointments, shopping and outings; cooking cleaning and general housework; gardening; sewing and mending; and fixing things around the house or organising things for the deceased.
During 2006, the deceased had a couple of falls that required medical attention from her regular doctor and Susan took the deceased to these appointments.
In about mid 2016, the deceased had a fall that required hospitalisation and Susan took the deceased to St John of God Hospital in Murdoch. The deceased was later transferred to Joondalup health campus. Susan visited the deceased every day while the deceased was at Joondalup Health Campus and would feed her dinner. Susan estimates that the deceased was at Joondalup Health Campus for a couple of months.
By Christmas 2006, the deceased was moved from Joondalup Health Campus to Brightwater Kingsley Interim Care. Susan visited the deceased most days whilst she was at Brightwater Kingsley Interim Care. Susan also continued to maintain the deceased's home and garden, and do the deceased's washing.
The deceased returned home in April 2007 with an aged care package which included some home help (basic cleaning), someone to administer her medication morning and night, and meals on wheels on weekdays.
From around the time the deceased returned home Susan would still cook the deceased her favourite meals and snacks, and visited the deceased twice a week. Susan continued to do all of the deceased's shopping, any further housework that needed doing and the deceased's gardening. Susan also attended to the deceased's washing and any mending that needed to be done.
Around mid to late 2007, the deceased was given a panic alarm and Susan received three calls on three separate nights over a six‑week period from the alarm monitoring company who advised Susan that the deceased had told them that the deceased needed Susan. Susan went to the deceased's home to help on each occasion, each time after midnight.
Susan's close relationship with the deceased became strained around mid 2007.
It was about this time that Susan started to struggle with the deceased's demands of her, and anger that the deceased demonstrated towards her.
In this regard, I note the finding of Derrick J in Power v Smart [376], in particular his Honour’s acceptance of 'Susan's evidence as to the specifics of the behaviour that the deceased exhibited towards [Susan] and others from around 2006 onwards.' His Honour at [628] found that he was 'satisfied that from 2006 the deceased did, on occasion, exhibit unusual and/or aggressive behaviour towards Susan and Meagan in particular.' His Honour also 'accept[ed] on the basis of Susan's evidence that the deceased did in later years of her life, particularly from around 2008 onwards, on occasion exhibit the unusual and sometimes aggressive behaviour to which Susan referred, as well as problems with her memory and levels of alertness.' At [628] Derrick J made the following finding.
The fact that the deceased was exhibiting unusual and/or aggressive behaviours, confusion, and worsening problems with her memory is, I am satisfied, at least partially attributable to her cognitive deterioration, although I have no doubt that her behavioural issues were also in part the result of the resentment that she felt towards Susan and Meagan for trying to keep her in care and her deteriorating eyesight, deafness and physical health generally.
Susan recalls that she told the deceased that she would need to get more outside care because Susan was struggling to look after her. Susan recounts having arranged for further care, and that Susan did not see the deceased for several weeks, perhaps five in total, but rang the deceased twice each week during that time.
Susan's regular care and visits continued until about late 2007. During 2008, Susan continued to see the deceased fortnightly but was not taking as much of an active role in her care.
The deceased was again admitted to hospital on a number of occasions in 2009. On more than one occasion, the deceased expressed her wish to return home and for Susan to move in with her.
In around March 2011, the deceased moved into Anchorage Aged Care Facility.
It is Susan's evidence that from around the time that Susan told the deceased that she could not move in with her until the time the deceased moved into Anchorage Aged Care Facility, Susan's relationship with the deceased was sometimes difficult.
Susan's evidence is that from the time the deceased moved into Anchorage Aged Care Facility until her death about two and a half years later, Susan had a strong close relationship with the deceased. Susan visited the deceased regularly, at least once a week.
On around 19 August 2013, Susan was informed that the deceased was very unwell and likely to die. Robyn and Susan stayed overnight with the deceased on 19 August 2013, and on 20 August 2013 Meagan, Robyn, Ainslie and Susan kept a bedside vigil at the deceased's bedside. Susan was with the deceased when she died in the early hours of the morning of 21 August 2013.

Ainslie

Ainslie's evidence is that throughout her lifetime, she spent a lot of time with the deceased, but that she and the deceased also had a number of issues in their relationship. Ainslie observed that she generally found the deceased to be a very strong person who would often try to tell Ainslie and Susan what to do, even in their later adult years.
In February 1985, the deceased transferred her share in the Dunsborough Block to Ainslie.
In 1988, Ainslie moved to Dongara, Western Australia. Following the move, Ainslie would visit Perth three or four times a year, mostly during school holidays, and would visit the deceased and Susan. During the years that Ainslie lived in Dongara and visited Perth, Ainslie would help the deceased when she could around the deceased's home in Mt Pleasant and also at the Dunsborough Block.
Ainslie recalls an altercation with the deceased in around 2002. She recalls the deceased yelled at her and Susan and that the deceased's words were harsh and made her cry. Ainslie states that from this time on, other than at a family christening and wedding, Ainslie and the deceased did not see much of each other until the deceased went into Frederick Guest Hostel Aged Care Facility. (The deceased was admitted to the Frederick Guest Hostel Aged Care Facility on 5 March 2010.)[34]
[34] Power v Smart [90].
On or around 8 September 2009, Ainslie moved from Dongara to Perth to live with Susan as Ainslie could tell from her conversations with Susan that Susan was struggling to juggle the demands of caring for the deceased, working full‑time and looking after her property.
Ainslie's evidence is that she does not recall when the deceased moved into the Frederick Guest Hostel Aged Care Facility, but does recall that shortly after the deceased moved there, Robyn told Ainslie that the deceased wanted to see her and Ainslie went to visit the deceased.
Ainslie's evidence is that when she visited the deceased for the first time at Frederick Guest Hostel Aged Care Facility, Ainslie noticed that the deceased could not walk and her hearing was very poor, but other than that the deceased seemed very happy to see Ainslie. Ainslie recalls they had a nice chat.
Ainslie recalls having seen the deceased a further three or four times whilst the deceased was at Frederick Guest Hostel Aged Care Facility. During these visits, Ainslie's recalls that she noticed that the deceased could not toilet herself or make herself a cup of tea and Ainslie recalls staff telling Susan and her that the deceased needed to go into high care and that if Susan and Ainslie could not find anywhere appropriate, they had a facility which Ainslie thinks was in Armadale.
Ainslie says that she, Susan, Robyn and Meagan began looking for high care facilities where the deceased could live. She recalls that they chose Anchorage Aged Care Facility because it was nearby to where Susan and Ainslie lived at the time.
On around March 2010 or 2011, Ainslie helped the deceased move into Anchorage Aged Care Facility as Susan was away in Darwin. She recalls that Susan had organised a wheelchair taxi for the deceased and a taxi truck to move the deceased's things. Ainslie went with the deceased in the wheelchair taxi to Anchorage Aged Care Facility, along with all of the deceased's papers regarding her medication. Once at Anchorage Aged Care Facility, Ainslie waited for the taxi truck to arrive and organised the deceased's clothes, furniture and papers. Robyn arrived after she had finished work and helped as well.
Ainslie recalls that during the time that the deceased was at Anchorage Aged Care Facility, she would see the deceased at least twice a week. Ainslie would also often go with Susan to see the deceased and they would sometimes take the deceased out for lunch or take her to Meagan's house in Mullaloo on the odd occasion.

Findings of Derrick J in Power v Smart

It is submitted on behalf of Robyn and Michael that the evidence of Susan and Ainslie filed in this proceeding was the subject of findings made by Derrick J in Power v Smart; that none of the findings were overturned on appeal; and that the first defendant (Robyn) relies on those findings in this proceeding, and will rely on those findings on the hearing of the claim if leave is given.[35]
[35] Defendants' submissions filed 3 March 2020 par 3.
On behalf of Robyn and Michael, it was submitted that:[36]
Mrs Okle was estranged from Ainslie for many years before her death, and spent the last four years of her independent life fighting Susan (and Susan's daughter Megan) from incarcerating her in an institution.
Mrs Okle articulated to all who would listen her reasons for not leaving any more property to her daughters. The last time she did so was to her lawyer Paul Haynes, who enshrined her wishes in the will. (reasons [618] [619])
Ainslie had been estranged from Mrs Okle until around 2010. Susan limited her visits to Mrs Okle after early 2000.
[36] Defendants' submissions filed 3 March 2020 par 6 ‑ 8.
Additional passages of his Honour's reasons for decision in Power v Smart were referenced in the footnotes to the written submission.
In relation to the deceased's relationship with Ainslie and her estrangement from the deceased, Robyn and Michael reference the findings of Derrick J at [618] and [359]. The relevant part of the passages are reproduced below.
618… In addition, it is clear from the evidence that Ainslie was, for a significant number of years (between approximately 2002 and 2009), largely estranged from the deceased. ...
359In 2010 or early 2011 [Frederick Guest Hostel aged care facility] told [Susan] that as a result of the deceased's health the deceased required full‑time high care. [Susan], Meagan and Robyn thought it was wise to move the deceased to a high care facility that was close to [Susan] and Ainslie, whom the deceased had reconciled with whilst at FGH. Anchorage seemed a good option. In about March 2011 the deceased moved to Anchorage.
In relation to the deceased's relationship with Susan, Robyn and Michael reference the findings of Derrick J at [619], [620] and [628]. While no findings concerning Susan are made in [620], for completeness, it is also reproduced below.
619 With respect to the exclusion of Susan from the 2011 Will, the evidence of Robyn, Susan and Meagan to which I have referred establishes that the deceased over time came to significantly resent Susan and Meagan for, among other things, taking steps to prevent her from being released from residential care following her initial admission to SJGH Murdoch in 2006. It is also clear on the evidence that the deceased held a degree of resentment towards Susan as a result of Susan's refusal to live with her and look after her. …
620I turn then to the grandchildren. As I have already indicated, the evidence establishes that the deceased over time came to resent Meagan for taking steps to keep her in residential care. This in itself might be said to provide a rational explanation for the deceased's decision to exclude her from the 2011 Will. In any event, the deceased, in giving her instructions to Mr Haynes, made reference to each of her five grandchildren and in doing so provided an explanation as to why they were being excluded from the 2011 Will, namely that she felt that they had all benefited from her in the past. Indeed, with the possible exception of Meagan she indicated to Mr Haynes how she had helped, directly or indirectly, each of her grandchildren in the past (and in respect to Meagan made the point that Susan had transferred to Meagan the half share in the Dunsborough block and that Ainslie had sold her half share in the block to Meagan). In these circumstances, I do not consider that the exclusion of the grandchildren from the 2011 Will can properly be described as irrational.
628 I am, however, and as I have already indicated in dealing with the evidence of Susan, Meagan and Ainslie, satisfied that from 2006 the deceased did, on occasions, exhibit unusual and/or aggressive behaviour towards Susan and Meagan in particular. I am also, on the basis of the evidence of the various assessments of the deceased to which I have referred, as well as the evidence of Susan and Meagan, satisfied that the deceased did in the later years of her life, particularly from 2008 onwards, on occasion exhibit confusion and worsening problems with her memory. The fact that the deceased was exhibiting unusual and/or aggressive behaviours, confusion, and worsening problems with her memory is, I am satisfied, at least partially attributable to her cognitive deterioration, although I have no doubt that her behavioural issues were also in part the result of the resentment that she felt towards Susan and Meagan for trying to keep her in care and her deteriorating eyesight, deafness and physical health generally. In any event, the fact that the deceased was exhibiting unusual and/or aggressive behaviours, confusion and worsening problems with her memory in the years leading up to the time of the execution of the 2011 Will is clearly of relevance to the question whether the deceased, at the time of executing the 2011 Will, was able to comprehend and appreciate the claims to which she ought to give effect.
Robyn and Michael also reference the findings of Derrick J at [107] and [110], which passages are part of Robyn's evidence given in the Solemn Form Proceeding concerning the relationship between Susan and the deceased. For completeness, reproduced below are [107] ‑ [110]:
107Aunty Sue (Susan) visited the deceased on the weekends until Aunty Sue started to see a man called Harvey. She thinks this was in the early 2000s. Aunty Sue took Harvey to visit the deceased occasionally until the deceased told her that she had told Aunty Sue that she did not want Harvey in her home.
108She knows that Aunty Sue visited the deceased on weekends because she also visited the deceased about once a week and would call the deceased to organise the day. The deceased would tell her the day Aunty Sue was visiting and they would fix another day for her to visit.
109The deceased did not like Harvey. The deceased called him the 'Sniffer Dog'. The deceased said something to her like:
I don't want him in the house. Now [Aunty Sue's] got Sniffer Dog she doesn't want anything to do with me. She said she was going to look after me.
110For the same reasons that she knew that Aunty Sue called on the deceased, she knows that after Aunty Sue had met Harvey Aunty Sue would rarely visit the deceased.
Robyn and Michael also reference [50] to [98] of Derrick J's reasons for decision, where his Honour set out evidence concerning various assessments of the deceased's abilities and mental state that were undertaken during the period from 2006 up until the time that she executed the 2011 Will.
The evidence reveals that on many occasions Susan expressed concern to medical staff about the deceased's ability to care for herself in her own home and manage her own finances. Susan was adamant in her dealings with the medical staff, that the deceased needed placement in a residential aged care facility, whereas the deceased continuously expressed her adamant desire to return home.
In addition to the one passage referenced by Robyn and Michael, this regard, I note the finding of Derrick J at [374]:
374I accept that [Susan] (like Robyn and Meagan) at all times did the best that she could to support and care for the deceased, and that she always acted in what she believed to be the best interests of the deceased.

Events after the death of the deceased and the explanation proffered for the delay

Susan and Ainslie's evidence is that they did not bring an application pursuant to the Family Provision Act seeking adequate provision within time because the Solemn Form Proceeding and the appeal were in progress, dealing with the validity of the 2011 Will.[37] They say that the application was made as soon as possible after the appeal had completed and in support of this contention, they describe in their respective affidavits the chronology of events.
[37] Affidavit of Susan Faye Smart par 118; affidavit of Ainslie Joy Perkusich par 69.
Susan says that on or arounds 21 August 2013, she was informed by Robyn that the deceased had changed her will; and prior to that date, it had been Susan's understanding that the deceased's 1998 Will was the deceased's last will. In about late 2015, through her daughter Meagan, Susan came to learn of the terms of the 2011 Will.
Ainslie never spoke to the deceased about any of her wills. She learned of the 2011 Will from Susan in or around 2016.
On or around 1 February 2016, Susan and Ainslie caused a caveat to be filed, claiming an interest in the estate of the deceased.[38]
[38] Affidavit of Susan Faye Smart par 108; affidavit of Ainslie Joy Perkusich par 59.
In September 2016, Robyn and Michael commenced the Solemn Form Proceeding, seeking an order that the court pronounce the force and validity of the 2011 Will in Solemn Form. Susan was named as a defendant to the Solemn Form Proceeding. (It was not until sometime around August 2017 that the solicitors for Susan and Ainslie commenced to act for both of them in the Solemn Form Proceeding. Initially they acted only for Susan. Ainslie was not joined as a defendant until October 2017: Power v Smart (S) [7].)
Susan and Ainslie disputed the validity of the 2011 Will and claimed that the valid will of the deceased was the 1998 Will. They sought an order that the court pronounce the force and validity of the 1998 Will in Solemn Form.
Judgment was delivered in the Solemn Form Proceeding on 13 June 2018, and orders were made pronouncing the force and validity of the 2011 Will in Solemn Form.
On 3 July 2018, Susan and Ainslie appealed against the primary judge's decision pronouncing the force and validity of the 2011 Will. None of the grounds of appeal were made out and the appeal was dismissed on 2 August 2019.
On about 8 August 2019, the solicitor for Susan and Ainslie received the extracted orders of the Court of Appeal.
On 20 August 2019, an email communication was sent by the solicitor for Susan and Ainslie to the solicitor for Robyn and Michael, advising that Susan and Ainslie would bring a claim under the Family Provision Act and asked that the funds of the estate remain undistributed.[39] The solicitor for Robyn and Michael responded on the same day, stating that he would forward the email to the executors.[40]
[39] Affidavit of Susan Faye Smart par 116, 'SFS8'; affidavit of Ainslie Joy Perkusich par 67, 'AJP7'.
[40] Affidavit of Susan Faye Smart par 117, 'SFS9'; affidavit of Ainslie Joy Perkusich par 68, 'AJP8'.

On 30 August 2019, Susan and Ainslie were informed by their solicitor that he did not consider it appropriate that he act in respect of this application. On or around 2 September 2019, Susan, Ainslie and Meagan met with new solicitors and instructed them to bring a claim under the Family Provision Act.
Correspondence was exchanged as between the respective solicitors from at least 3 September 2019 to 6 September 2019. Among other things, confirmation was sought on behalf of Susan and Ainslie as to how much of the estate remained undistributed.[41]
[41] Affidavit of Susan Faye Smart par 121, 'SFS11'; affidavit of Ainslie Joy Perkusich par 72, 'AJP10'.
Distribution was confirmed by letter dated 6 September 2019.[42] Susan and Ainslie were informed that distributions to beneficiaries aged over 21 years were made after the appeal but before the communication from Susan and Ainslie's representative of 20 August 2019.
[42] Affidavit of Susan Faye Smart 'SFS12'; affidavit of Ainslie Joy Perkusich 'AJP11'
Susan and Ainslie further say that since the appeal decision was handed down, they have had to engage alternative legal representation. Due to the lengthy background and history of the matter, it took some time to brief new lawyers. There was also a short delay in the transfer of the file from the former to new legal representatives.
Susan and Ainslie were required to spend some time giving instructions for the preparation of their respective affidavits in support of the application.
Robyn and Michael annexe to their affidavit as 'RLP1' an email communication dated 14 September 2018 from the executor's solicitor to Susan and Ainslie's solicitor at the time, advising that probate of the will had been granted to Robyn and Michael. The communication did not state when probate had been granted.
From the evidence before me, I am unable to determine whether, through their solicitors, Susan and Ainslie knew of the existence of the relevant time limit. The applicants do not seek to rely on a lack of knowledge as a reason for delay.

Warning to the defendants of the proposed claim under the Family Provision Act

On behalf of Susan and Ainslie, it is submitted that in the course of the ongoing litigation, there were numerous references in correspondence from the plaintiffs to the defendants pertaining to the likelihood of a claim for adequate provision being brought by Susan and Ainslie. The evidence referenced in support of this submission is a letter from Susan and Ainslie's current solicitors to the solicitors for Robyn and Michael dated 4 September 2019, annexed to Susan's affidavit at 'SFS11'. The same letter is annexed to Ainslie's affidavit at 'AJP10'. This matter is not otherwise addressed by Susan or Ainslie in their affidavit evidence.
In the letter, the solicitors for Susan and Ainslie record that they are instructed that over the years there have been many references in correspondence pertaining to the likelihood of a Family Provision Act claim being brought by Susan and Ainslie.
What then follows is a quotation from a letter from Summers Legal on behalf of Susan and Ainslie to the solicitors for Robyn and Michael dated 6 September 2018, while the appeal was on foot.
Objection is taken on behalf of Robyn and Michael to the quotation on two grounds: first, that it is secondary evidence as to the contents of a document not in evidence; and secondly, that the letter referred to is expressed to be without prejudice save as to costs. It is submitted that the letter was the attachment to the affidavits of Susan and Ainslie before they were redacted by the order made by the consent of the parties on 12 November 2019.[43]
[43] Defendants' submissions filed 3 March 2020 par 34-35.
Save for the assertion contained in the submissions filed on behalf of the Robyn and Michael that the letter is expressed to be without prejudice save as to costs, there is no evidence before me by which it is possible to determine the objection on the second ground.
In any event, nothing turns on the quotation.
In this proceeding, Robyn and Michael acknowledge that on 20 January 2017, Susan's solicitors advised them that if the action resulted in probate being granted to them as executors named in the will, Susan's solicitors had instructions to institute proceedings pursuant to the Family Provision Act seeking orders for adequate provision.[44] In support of the submission, reference is made on behalf of Robyn and Michael to the reasons for decision of Derrick J in Power v Smart (S)[12].
[44] Defendants' submissions filed 3 March 2020 par 14.
In the reasons for decision of Derrick J delivered on 27 July 2018 concerning costs, his Honour referred to correspondence exchanged between the parties' respective solicitors during the period April 2016 through shortly before the trial in January 2018, which correspondence had been annexed to affidavits filed by the parties.[45]
[45] Power v Smart (S) [6].
At [12], Derrick J records that on 20 January 2017, Susan's solicitors sent a letter to Haynes (who at that time acted for Robyn and Michael) bearing that date. In their letter, among other things, Susan's solicitors stated that if the action resulted in probate being granted to Robyn and Michael, Susan's solicitors had instructions to institute proceedings pursuant to the Family Provision Act seeking orders for adequate provision.
At [10], Derrick J records that on 1 June 2016, Susan's solicitors sent a letter to Haynes bearing that date. Among other things, in that letter Susan's solicitors:
… proposed an informal conference 'in an attempt to commence settlement discussions' in relation to both the caveat that Susan had lodged against the deceased's estate and Susan's previously foreshadowed claim for adequate provision under the Family Provision Act 1972 (WA) (the FPA) in the event that the Will was held to be valid.
There are a number of references in Derrick J's cost decision to correspondence from the solicitors for Susan and Ainslie foreshadowing the making of a claim under the Family Provision Act. The earliest in time is that of 1 June 2016, referenced at [10].[46] His Honour's reasons for decision disclose the provision by Susan and Ainslie to Robyn and Michael, through their respective solicitors, of early and repeated notice to Robyn and Michael of the potential for claims to be made under the Family Provision Act.
[46] See also Power v Smart (S) [14], [16] and [33].

Disposition

The application is finely balanced. Having regard to all relevant facts and circumstances, and not merely those applicable to Susan and Ainslie, I am persuaded that the justice of the case requires that Susan and Ainslie be given an extension of time.[47]

Arguable case

[47]Drake [60].

I first turn to consider whether on the material before me, Susan and Ainslie have an arguable case on the merits.
This is not a case where the prospects of success turn on the resolution of conflicting evidence. Rather, it is a case where the parties view the evidence as supporting different conclusions and outcomes. Susan and Ainslie contend that the evidence supports a finding that they have an arguable case on the merits, whereas Robyn and Michael contend otherwise.
The facts that concern the financial position of the estate; the respective financial positions of Susan and Ainslie; their need for and moral claim to provision from the estate; and the relationships between the deceased and each of her daughters, are critical and uncontentious.
As to the need and moral claim of other persons who have a legitimate claim on the bounty of the deceased, it would appear from the evidence that of the deceased's relatives, only Susan and Ainslie have standing to make an application under the Family Provision Act. However, in Devereaux-Warnes v Hall [No 3],[48] Buss JA observed that a moral claim of a beneficiary may arise independently of the Family Provision Act, from the totality of the relationship between a beneficiary and a testator and contemporary accepted community standards. McLure JA and Pullin JA both observed that persons who have a legitimate claim upon the bounty of a testator include persons entitled to claim under the Family Provision Act as well as testamentary beneficiaries who, although not entitled to claim under the Family Provision Act, have a moral claim upon the bounty of the testator.[49]
[48] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [104].
[49] Devereaux-Warnes v Hall [No 3] [10] and [24].
I do not have any evidence as to the financial position of the beneficiaries under the 2011 Will, or whether any held a moral claim on the bounty of the deceased.
The critical question is whether, considered at the date of the deceased's death, the 2011 Will arguably failed to make adequate provision from the deceased's estate for the proper maintenance, support, education or advancement in life of Susan and Ainslie, for the purposes of the Family Provision Act s 6(1).
When a claim is made by an adult child of a deceased, the specific principles the court is to consider are as set out in Wheat v Wisbey.[50] I adopt the statement as to the relevant principles without repeating them in these reasons. Tottle J recently set out the principles that apply in Family Provision Act cases which involve estrangement in Lysaght v Lysaght.[51] Again, I adopt the statement as to the relevant principles without repeating them in these reasons.

The financial position of the estate and the financial positions of Susan and Ainslie

[50] Wheat v Wisbey [2013] NSWSC 537 [128].

[51] Lysaght v Lysaght [2018] WASC 88[58] ‑ [62].

The evidence reveals that the bounty of the deceased as at the date of her death was $780,708.84, likely more. Legal costs have since been incurred, leaving about $490,000, the majority of which has been distributed or earmarked for distribution to beneficiaries under the 2011 Will by the executors.
Both Susan and Ainslie are of advanced years. They are retired pensioners.
As at the date of her affidavit, Susan's expenses exceed her income and she held a net asset position of $153,000. As at the time of the deceased's death, Susan's monthly expenses exceeded her income by $2,130, and she held a net asset position of $322,480. Meagan had assumed responsibility for paying Susan’s mortgage repayments. Since the death of the deceased Susan has had to rely on income from her superannuation which has now been largely depleted. Of Susan’s monthly mortgage repayment of $3,415, Meagan meets all but $850 of this obligation.
As at the date of her affidavit, Ainslie's income exceeded her expenses by $241.19 and she held a net asset position of $134,833. Ainslie's evidence as to her financial position as at the time of the deceased's death is not complete. It appears that Ainslie's only income was a monthly pension, her expenses were minimal and she held an interest in a Dongara property.
Susan cannot independently cover her mortgage and living expenses, and Ainslie only does so with a small margin. Neither hold a buffer against the vicissitudes of life in their retirement and aging.
Both have health issues managed largely by medication. Susan and Ainslie's slim financial reserves to meet demands, particularly demands of ill health, is a factor which grounds a finding of an arguable claim.
The evidence of Robyn and Michael suggest that the costs of the appeal, being $45,000, remains an amount unpaid by Susan and Ainslie and an outstanding liability. The liability makes more precarious their already limited financial reserves.

Need for and moral claim to the estate

For the purpose of this application, the evidence supports a finding of a strong case that Susan and Ainslie had needs which could not be met from their own resources. I accept that this would be a significant factor for the court to consider on a substantive application, in determining whether they were left without adequate provision for their proper maintenance etc. Such needs are not however the only matters which the court must consider when addressing that question.[52]
[52] Drake [31], referring to Devereaux-Warnes v Hall.
As was noted by Buss JA in Devereaux‑Warnes v Hall [No 3]:[53]
[53] Devereaux-Warnes v Hall [74].
The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. See Goodman per Gibbs J at 496 ‑ 497; Hunter v Hunter (1987) 8 NSWLR 573 per Kirby P at 575; Singer per Mason CJ, Deane and McHugh JJ at 209 ‑ 210.
Plainly, the totality of that relationship would include:
(a)any sacrifices made or services given by the claimant to or for the benefit of the deceased;
(b)any contributions by the claimant to building up the deceased's estate; and
(c)the conduct of the claimant towards the deceased and of the deceased towards the claimant.
See Coates per Dixon CJ at 510; Hughes per Gibbs J at 147; Goodman per Gibbs J at 497.
Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act. See Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 per Kirby P at 28, per Sheller JA at 42.
As to whether there is evidence which would support a finding of a moral claim to the estate by Susan, I have had regard to the following.
Susan and the deceased had a close relationship for most of the deceased's life.
Susan visited and spoke with the deceased regularly. She was a companion and help to the deceased, who had been widowed and did not drive.
Susan provided consistent and significant domestic assistance to the deceased in various forms over many years. The support provided by Susan to the deceased increased as the deceased grew older. Susan’s assistance extended over time to financial assistance.
The support Susan provided to the deceased was given at some personal cost, trouble and inconvenience to Susan.
Susan started to struggle in attending to the deceased's needs and Susan's close personal relationship with the deceased became strained around mid 2007.
The relationship between the deceased and Susan was significantly strained in the years prior to the deceased being admitted to Anchorage Aged Care Facility in 2011. They clashed over Susan's view that the deceased was unable to care for herself at home, and the deceased's adamant desire to return home. The evidence suggests that the relationship was strained by the deceased’s disappointment that Susan was not prepared to care for her at home.
It would appear that Susan and the deceased reconciled after the deceased was admitted to Anchorage Aged Care Facility and remained so until the deceased's death.
Susan acted to her own personal detriment by transferring her interest in the Dunsborough Block to Meagan in accordance with the deceased's wishes, without payment. While Susan transferred the property to Meagan in accordance with the deceased’s wishes, she did not receive the deceased's property in Mt Pleasant as had been represented to her would occur. No alternative provision was made for her by the deceased in the 2011 Will.
Robyn and Michael take issue with the suggestion that Susan has any moral claim to the deceased's bounty. They say that the deceased spent the last four years of her independent life fighting Susan from incarcerating her in an institution. They also say that Susan limited her visits to the deceased after early 2000.
They submit that Susan's case is not arguable, alternatively weak, because she was given significant property by the deceased inter vivos; and there is no moral claim. They say that Susan, with Ainslie's assistance, treated the deceased with distain in trying to incarcerate her.
I note that Derrick J accepted that Susan at all times did the best that she could to support and care for the deceased, and that she always acted in what she believed to be the best interests of the deceased.[54] Ainslie's evidence was also substantially accepted.[55]
[54] Power v Smart [374].
[55] Power v Smart [473].
Having regard to the evidence as it reflects the totality of the relationship between Susan and the deceased, including the findings of Derrick J, I find that Susan has an arguable moral claim. The evidence as a whole, having regard to the totality of the relationship, does not support a finding that Susan's claim for provision is a weak one.
As to whether there is evidence which would support a finding of a moral claim to the estate by Ainslie, I have had regard to the following.
Ainslie over time had spent a lot of time with the deceased. From 1988, Ainslie lived in Dongara and her visits to Perth were limited to three or four times each year. When Ainslie visited Perth she spent time with the Deceased.
Ainslie provided assistance to the deceased, both around the deceased's home and the Dunsborough Block when Ainslie was in Perth.
Ainslie was estranged from the deceased for about eight years.
In about September 2009, Ainslie moved from Dongara to Perth to live with Susan. Ainslie's evidence is that she did so as Ainslie could tell from her conversations with Susan that Susan was struggling to juggle the demands of caring for the deceased, working full‑time and looking after her property.
Ainslie reconciled with the deceased. She was later involved in looking for high care facilities where the deceased could live. She visited the deceased at least twice a week at the Anchorage Aged Care Facility.
Ainslie acted to her own personal detriment by transferring her interest in the Dunsborough Block to Meagan for considerably less than its value. Ainslie explains the basis upon which she believed the transfer was consistent with the deceased's wishes. As at the date of the deceased's death, Ainslie had no interest in the Dunsborough Block. By the 2011 Will, the deceased made no provision for Ainslie.
Robyn and Michael take issue with the suggestion that Ainslie has any moral claim to the deceased's bounty. In summary, they submit that Ainslie's case is not arguable, alternatively weak, because she was given significant property by the deceased inter vivos; and there is no moral claim. They submit that Ainslie assisted Susan in trying to incarcerate the deceased. They rely on the period of Ainslie's estrangement from the deceased.
Having regard to the evidence as it reflects the totality of the relationship between Ainslie and the deceased, I find that Ainslie has an arguable moral claim. The evidence as a whole does not support a finding that Ainslie's claim for provision is a weak one.
For the purpose of this application, I find that Susan and Ainslie have an arguable case on the merits, Susan having the stronger one when regard is had to some aspects of her moral claim, particularly the significant assistance she provide to the deceased over many years. In this case, in the overall exercise of discretion, the strength of Susan and Ainslie’s case weighs heavily in the applicants' favour.

Explanation for the delay and notice

I have had regard to how promptly and in what circumstances Susan and Ainslie sought the permission of the court after the time limit expired.
Susan and Ainslie say that they did not bring a claim under the Family Provision Act within time because there was a proceeding and an appeal in progress dealing with the validity of the 2011 Will, and they had given notice to Robyn and Michael that if they were appointed executors under the 2011 Will, they would bring a claim.
I am satisfied on the materials before me that the explanation proffered by Susan and Ainslie for their delay is not a contrivance.

It is uncontroversial that at the time probate was granted, the appeal had been commenced, but not heard and determined; and that the time for commencing a claim for provision under the Family Provision Act expired before the appeal was determined.
The executors were informed of Susan and Ainslie's intention to make an application under the Family Provision Act if Robyn and Michael were to secure a grant of probate under the 2011 Will at a very early stage, and then on several occasions before the 2011 Will was proved in Solemn Form and probate was granted.
Susan and Ainslie's current solicitors submit that commencing an application for adequate and proper provision pursuant to the Family Provision Act might be seen to be at best contradictory and at worst, disingenuous while proceedings challenging the validity of a will on the basis of a lack of testamentary capacity or undue influence were on foot (and then the subject of an appeal).
While I do not accept this submission, the litigation strategy adopted by Susan and Ainslie was adopted while legally represented, and was executed on behalf of Susan and Ainslie by their former solicitors. Viewed in that context, their conduct was reasonable and the reason proffered for the delay weighs in favour of the exercise of discretion.
On behalf of Robyn and Michael, it is noted that there was no mention of an application to extend time by Susan and Ainslie at the time the appeal was dismissed, or that a claim under the Family Provision Act was contemplated. In considering all of the circumstances, I am not persuaded that a lack of further notice at the time the judgment in the appeal was delivered (that is, on 2 August 2019) upsets the balance given that the executors made distribution to five of the beneficiaries on the same day that judgment in the appeal was delivered (that is, on 2 August 2019). The evidence suggests that there was only a small window for any correspondence to the executors following delivery of judgment in the appeal to have resulted in receipt of notice by the executors before distribution and the maintenance of the status quo.
Following delivery of judgment in the appeal, I accept that the delay in bringing this application was modest and was adequately explained in the evidence of Susan and Ainslie.
Robyn and Michael annexe to their affidavit as 'RLP1' an email communication dated 14 September 2018 from the executor's lawyers to Susan and Ainslie's lawyers at the time, advising that probate of the will had been granted to Robyn and Michael. While the communication did not state when probate had been granted, it was clear from that communication that time was running.
Another reason for the delay in commencing these proceedings may be the failure of the plaintiffs' former solicitors to take reasonable care to adequately pursue their clients' interests. The importance of beginning proceedings within six months of the grant of probate, and the risk of the litigation strategy adopted in light of s 20(1) and (5) of the Family Provision Act, should have been appreciated. This is not a reason advanced by Susan and Ainslie.
Finally, I have had regard to the promptitude with which the applicants gave warning to Robyn and Michael of the proposed application. Notice was given of Susan and Ainslie's intention to make an application under the Family Provision Act if Robyn and Michael were to secure a grant of probate under the 2011 Will at a very early stage, and then on several occasions before the 2011 Will was proved in Solemn Form and probate was granted. In all of the circumstances, the fact that this notice was given on behalf of Susan and Ainslie to Robyn and Michael before the grant of probate is a matter which weighs in favour of the exercise of discretion. The significance of the notice having been given is not diminished by the potential for reliance by the executors on the protection of s 20(1) of the Family Provision Act in a claim made against them.

Partial distribution of the deceased's estate and prejudice to the beneficiaries

The applicants must persuade the court that the justice of the case, having regard to all relevant facts and circumstances and not merely those applicable to them, require that they be given an extension of time.
In response to the application, the executors cite distribution of over 60% of the estate to five beneficiaries as a matter which weighs against the exercise of discretion in favour of the applicants.
Adopting the statements of principle made by the Court of Appeal in Drake [49], it was submitted on behalf of Robyn and Michael that:
(a)the distribution of the estate, and the consequential need to examine issues of potential inequity, mean that if leave is granted, the proceedings that follow will be more complex and give rise to greater uncertainties than otherwise would be the case;
(b)the attendant complexity and uncertainty, together with the costs of investigating such matters, are of particular significance given the size of the estate; and
(c)there would be prejudice to the beneficiaries arising from the uncertainty which the proposed proceedings will create as to their entitlement to retain the distribution they have received, or other matters, such as the beneficiary's responsibility for his or her own costs of defending a claim made under the Family Provision Act without recourse to an undistributed estate.
I accept that in this case, the distribution of the estate, and the consequential need to examine issues of potential inequity, may mean that if leave is granted, the proceedings that follow may be more complex and give rise to greater uncertainties than otherwise would be the case.
I accept that there would be prejudice to the beneficiaries arising from the uncertainty which the proposed proceedings will create, both as to their entitlement to retain or receive their distribution (as applicable); and in relation to the recoverability of legal costs they may incur.
I also accept that given the size of the estate, the issues are more pronounced. In this case, the issues may be further exacerbated by the number of beneficiaries made party to the proceeding.
I have weighed all of these in the balance in considering the exercise of the discretion. The distribution is a relevant fact which I have weighed in the exercise of the discretion, which weighs against a grant of leave.
The executors complain that the beneficiaries were not joined to this proceeding, depriving them of the opportunity to state their position, and if appropriate, facts relevant to any application under the Trustees Act s 65.
I am troubled by the non‑joinder of the beneficiaries to this proceeding. There is no evidence of the beneficiaries having been served with the papers, or that with knowledge of application, they had expressed an intention to abide.
The programming of the application appears to have proceeded on the assumption that the solicitors for Robyn and Michael would take instructions as to whether the beneficiaries who had received distribution had spent the moneys received, and evidence of prejudice might be included in the evidence filed on behalf of Robyn and Michael.[56] No evidence of the prejudice to the beneficiaries was filed, but no inference adverse to the position of Robyn and Michael, or favourable to Susan and Ainslie, may be drawn from the same.
[56] ts 5 ‑ 6 (5 December 2019).
Having not been joined, the beneficiaries have not had the opportunity to defend an application. However, I have taken the view that in all of the circumstances of this case, they not being joined ought not of itself be determinative of the application, and that the discretion may be still be exercised judicially, in accordance with what is just and proper.
I do so on the basis that I accept that for the five of the beneficiaries who have received distribution, they are more likely to have changed their position in reliance on the benefaction than the remaining three, where their distribution lies merely in prospect.[57] Further, I have weighed the distribution in the balance having made the assumption (favourable to the defendants) that the beneficiaries will suffer considerable prejudice by this application being granted.

Negotiations

[57] Clayton (367).

It is material whether or not negotiations have been commenced within the time limit; for if they have, and time has run out while they 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 taken the point that time has expired.
On behalf of Robyn and Michael, it is submitted that there is no evidence of negotiations as between the parties which can inform the exercise of discretion.
Issue is taken with this submission on behalf of Susan and Ainslie. However, no evidence is cited. Rather, it is submitted that in circumstances where negotiations are invariably conducted on a 'without prejudice' basis, that production of evidence as to such negotiations will always be problematic.
While I accept the production of evidence in this context may in certain matters prove to be problematic, it is possible for admissible evidence to be led as to the fact of negotiations having been commenced before or after the time limit, without revealing the substance of the communications, which may remain confidential and without prejudice.
I accept the submission made on behalf of Robyn and Michael that there is no evidence of negotiations before me as between the applicants and the executors which can inform the exercise of discretion.

Redress against others

While Susan and Ainslie may have a claim against their former solicitors in negligence, such claim is not bound to succeed. Further, Susan and Ainslie’s damages in such a case would be the loss of a chance of succeeding in their application under the Family Provision Act.[58] As observed in Grigoriou,[59] on this basis there is a real prospect of the applicants obtaining an order for damages that would be less than the amount they could recover under s 7(1). Further, the prosecution of such a claim would take far longer and be far more expensive than the prosecution of their claim under the Family Provision Act.
[58] Grigoriou [29]; Craig v Craig [37].
[59] Grigoriou [29]
Robyn and Michael distributed the estate despite having received multiple warnings of Susan and Ainslie's proposed claim prior to their appointment as administrators. A claim by Susan and Ainslie against the executors for having prejudiced their claim under the Family Provision Act by distributing part of the deceased’s estate likely will be responded to by reference to s 20(1) and (5) of the Family Provision Act s 20(1).
A serious degree of prejudice to Susan and Ainslie flows from the above.

The diminution of the estate through legal costs

In submissions made on behalf of Robyn and Michael, I am asked to have regard to the fact that the estate has spent $370,000 in legal costs in the action and the appeal, and faces further significant legal costs in this proceeding, and more if leave is given. It is submitted that it is now a small estate as a direct consequence of the plaintiffs' conduct. It is further submitted that the strength of the plaintiffs' case must be considered in the context that through legal action, the plaintiffs have denuded the estate by almost 50%.
In determining this application, I have had regard to the broader factual matrix, particularly the size of the estate that remains after legal costs were incurred by the executors in the prosecution of the Solemn Form proceeding and in defence of the appeal.
Susan and Ainslie failed in disputing the validity of the 2011 Will at first instance and on appeal. The proceedings resulted in legal costs being incurred which reduced the size of the estate. I accept that legal costs have been incurred by the executors in opposing this application, and more costs are likely to be incurred if leave is given.
While I accept that there has been a diminution of the estate, I have not proceeded on the basis that the plaintiffs' conduct weighs heavily against the exercise of discretion in favour of the applicants. To proceed as suggested by the executors and give these matters particular weight, in all of the circumstances, would be unduly harsh.
In this regard, I am informed by the following.
Derrick J found that Susan and Ainslie did have sufficient and reasonable grounds for objecting to the validity of the 2011 Will on the grounds of lack of testamentary capacity and lack of knowledge and approval, and that the case called for a substantial and vigilant examination of the circumstances leading to the deceased making and executing the 2011 Will.[60]
[60] Power v Smart (S) [57].
Further, Derrick J determined that it would be an unduly harsh outcome to require Susan and Ainslie to pay all of Robyn and Michael's costs of the Solemn Form Proceeding, even solely on a party/party basis. In so determining, his Honour had regard to the conduct of Susan and Ainslie in attempting to settle the proceedings, and that despite his Honour finding against Susan and Ainslie on the case they advanced, his Honour had taken a generally favourable view of the honesty and reliability of the evidence given by them and the other non‑expert witness called by them, Meagan.[61]

The limited funds remaining in the estate and prejudice to the executors

[61] Power v Smart (S) [57].

Robyn and Michael depose to there being limited funds remaining in the estate to meet legal costs; and to the fact that they do not hold funds to instruct lawyers to defend any Family Provision Act claim should leave be given unless Susan and Ainslie pay the agreed costs of the appeal. I accept that these are matters of real potential prejudice to the executors and I have weighed them in the balance.

Assessment

As noted above, the application is finely balanced. On balance, I find that Susan and Ainslie have established sufficient grounds for taking this matter out of the general rule, depriving those who are protected by it of its benefits.
They have made out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time. It has been shown that Susan and Ainslie have an arguable case on the merits: the evidence supports a finding of a strong case that they each had needs which could not be met from their own resources (which needs continue); and they both have an arguable moral claim for provision from the estate.
While I have weighed in the balance all relevant facts and circumstances, the particular circumstances of the delay and provision of notice of the claim, and the potential for serious prejudice to the applicants without ready redress against anybody, when combined with their case on the merits tipped the balance in favour of the discretion being exercised in favour of the applicants. To my mind, these matters outweigh the prejudice that will invariably flow to the executors and beneficiaries, in circumstances where over 60% of the estate has been distributed by the executors and further legal costs will be incurred.
In my judgment it would not be just to shut Susan and Ainslie out from making a claim in all of the circumstances of this case.

Conclusion and orders

For these reasons, I am satisfied that the justice of the case requires that Susan and Ainslie be given leave to file out of time.
Susan and Ainslie seek an order that the costs of this application be paid out of the estate of the deceased. It is my preliminary view that it is appropriate that the costs of all parties to this proceeding be costs in the cause in the foreshadowed substantive application issued under the Family Provision Act s 6(1). Once the parties have had an opportunity to consider these reasons, I will hear from them as to the costs of this application, if the cost order cannot be agreed.

Schedule A – Susan's estimated income, expenditure, assets and liabilities as at 21 August 2013

Item

Monthly Amount/Value

INCOME

Income*

EXPENDITURE

Utilities & rates

Health and home insurance

Car expenses

Food and other expenses

Mortgage repayments

NET MONTHLY SURPLUS/(DEFICIT)

      $1,000.00

      $480.00

      $300.00

      $350.00

      $1,200.00

      $800.00**

      ($2,130.00)

ASSETS

½ share in property at 56 Wells Street, Mariginiup

Superannuation

Mazda Tribute

      $300,000.00***

      $180,000.00

      $5,000.00

LIABILITIES

Mortgage

Credit Cards

NET ASSET POSITION

      $162,500.00

      $20.00

      $322,480.00

* At this time I was only receiving income from the income protection plan under my superannuation policy. I did not receive a disability pension until April 2014.
** As I was unable to meet the mortgage repayments from late 2012, Meagan assumed sole responsibility for payments under the mortgage from that time.
***This is my best estimate of the value of the property in August 2013

Schedule B – Susan's estimated income, expenditure, assets and liabilities as at 23 October 2019

Item

Monthly Amount/Value

INCOME

Disability pension

Superannuation income

EXPENDITURE

Utilities & rates

Health and home insurance

Car expenses

Food and other expenses

Mortgage

NET MONTHLY SURPLUS/(DEFICIT)

      $1,748.50

      $1,500.00

      $700.00

      $350.00

      $350.00

      $1,200.00

      $850.00*

      ($201.50)

ASSETS

½ share in property at 56 Wells Street, Mariginiup

Superannuation

      $500,000.00**

      $10,000.00

LIABILITIES

Home loan

Credit Cards

NET ASSET POSITION

      $356,000.00

      $1,000.00

      $153,000.00

* The monthly mortgage repayment is actually $3,415.00. I am paying only $850.00 of this and Meagan pays the balance.
** Property valued at $1,000,000.00 in 2018. This property was purchased in 2002 for $360,000.

Schedule C – Ainslie's estimated income, expenditure, assets and liabilities as at 21 August 2013

Item

Monthly Amount/Value

INCOME

Age Pension

EXPENDITURE

Utilities & rates

Health and home insurance

Car expenses

Food and other expenses

NET MONTHLY SURPLUS/(DEFICIT)

      *$1,852.40

      $NIL

      $NIL

      $120

      $NIL

      $ not known

ASSETS

Car

½ share in 2/3 Dongara property; tenants in common with Michael in 1/3 Dongara property

      $2,000.00

      **$Unknown

LIABILITIES

NET ASSET POSITION

     NIL

      $unknown

* I do not have access to this information however, to the best of my knowledge it would not have been more than it is now. I have inserted my current pension above.
** I do not have access to this information however, I am informed by Michael and verily believe that as at around 2017-2018, the Dongara property was worth approximately $400,000.00.

Schedule D – Ainslie's estimated income, expenditure, assets and liabilities as at 23 October 2019

Item

Monthly Amount/Value

INCOME

Senior Pension

EXPENDITURE

Payment to Hostel

Utilities & rates

Health and home insurance

Car expenses

Food and other expenses

NET MONTHLY SURPLUS

      *$1,852.40

      $1,611.31

      $NIL

      $NIL

      $NIL

      $NIL

      $241.19

ASSETS

Cash in bank (approx.)

½ share in 2/3 Dongara property; tenants in common with Michael in 1/3 Dongara property

      $1,500.00

      *$133,333.00

LIABILITIES

Nil

NET ASSET POSITION

      $unknown

* I do not have access to this information however, I am informed by Michael and verily believe that as at around 2017-2018, the Dongara property was worth approximately $400,000.00. The figure stated is based on this verbal information provided to me by Michael.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KC
Associate to Registrar Whitby
22 JANUARY 2021