JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WHEATLEY -v- GWENYTH MARY WHEATLEY as executor of the estate of the late GERALD LEOPOLD WHEATLEY [2018] WASCA 34
CORAM: MARTIN CJ
BUSS P
MURPHY JA
HEARD: 7 FEBRUARY 2018
DELIVERED : 19 MARCH 2018
FILE NO/S: CACV 76 of 2016
BETWEEN: SCOTT ANTHONY WHEATLEY
Appellant
AND
GWENYTH MARY WHEATLEY as executor of the estate of the late GERALD LEOPOLD WHEATLEY
First RespondentGWENYTH MARY WHEATLEY
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :WHEATLEY -v- WHEATLEY [2016] WASC 248
File No :CIV 1254 of 2016
Catchwords:
Family Provision Act 1972 (WA) - Application for extension of time to bring application - Delay of seven years - Whether open to master to find that there was no satisfactory explanation for delay - Reexercise of discretion
Legislation:
Family Provision Act 1972 (WA), s 6(1), s 7(2), s 8, s 9, s 10
Trustees Act 1962 (WA), s 65
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr M D Cuerden SC
First Respondent : Mr M N Solomon SC & Mr A M Houghton
Second Respondent : Mr M N Solomon SC & Mr A M Houghton
Solicitors:
Appellant: Sparke Helmore
First Respondent : Arns & Associates
Second Respondent : Arns & Associates
Case(s) referred to in judgment(s):
Allmark v Mossensons [2006] WASCA 127
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
Coates v National Trustees, Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494
Coffey v Bennett [1961] VR 264
Easterbrook v Young [1977] HCA 16; (1977) 136 CLR 308
Estate of Barry (Dec); Carcosta v Executive Trustee and Agency Co South Australia (1974) 9 SASR 439
Lewin v Desma Ann Kimpton as executor of the estate of Charles Howard Lewin [2014] WASCA 131
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Neill v Nott [1994] HCA 23; (1994) 121 ALR 148
Re Barrot [1953] VLR 308
Re Guskett [1947] VLR 212
Re Marland [1957] VR 338
Re Nassim (Dec) [1984] VR 51
Re Salmon (Dec) [1981] Ch 167
Re Walker (Dec) [1967] VR 890
Wheatley v Wheatley [2016] WASC 248
Young v Kestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190
JUDGMENT OF THE COURT: The appellant seeks leave to appeal against a decision of Master Sanderson in Wheatley v Wheatley (primary decision).[1] That decision concerned the appellant's application to extend the time to bring an application for family provision from the estate of his late father pursuant to the Family Provision Act 1972 (WA) (Act).
[1] Wheatley v Wheatley [2016] WASC 248.
The appellant (who, for present purposes, will be referred to as the…
Continue reading Wheatley v Wheatley
Sign in free to access the full text
- AGLC
- Wheatley v Wheatley [2018] WASCA 34
- Case
- [2018] WASCA 34
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide were whether the son's application for an extension of time should be granted, and if so, on what terms. The court had to consider whether the delay in filing the application was satisfactory and whether there were any special circumstances that warranted an extension of time. The court also had to consider the relevant factors set out in section 10(2) of the Act, including the degree of need of the applicant, the nature of the property in respect of which the applicant claims provision, and any other matter the court considers relevant.
The court found that the delay in filing the application was not satisfactory, but that there were special circumstances that warranted an extension of time. The court noted that the son had made substantial contributions to the family farm and that his father had created an expectation that the farms were to become his upon the father's death. The court also found that the son had a degree of need, as he had reduced his income and future income prospects by returning to the farms to work with his father. The court concluded that the son's application for an extension of time should be granted, and ordered that the time for bringing proceedings be extended to 28 February 2017.
The final orders of the court were that the appeal be allowed, and that the time for bringing proceedings for family provision be extended to 28 February 2017. The court also ordered that the son bear his own costs of the appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.