Wheatley v Wheatley

Case [2018] WASCA 34

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 Respondent

GWENYTH 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

Craig v Craig [2015] WASC 109

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

  1. 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.

  2. The appellant (who, for present purposes, will be referred to as the…

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Wheatley v Wheatley [2018] WASCA 34
Case
[2018] WASCA 34
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CaseChat Overview and Summary

The case of Wheatley v Wheatley involved the son's application to extend the time to bring an application for family provision from the estate of his late father under the Family Provision Act 1972 (WA). The son filed the application in the primary proceedings on 19 February 2016, more than seven years after the time for bringing proceedings had expired. The father, who died on 8 May 2008, left his entire estate to his wife, the widow, and did not make any provision for the son or his sister. The son argued that he had 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 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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 son) filed the application in the primary proceedings on 19 February 2016. The father died on 8 May 2008. By his will he left the whole of the estate to his wife, the first and second respondent (who will be referred to as the widow or the mother).[2] By s 7(2) of the Act, the time for bringing proceedings for provision under the Act expired in April 2009, subject to any extension of time granted. Accordingly, the son required an extension of time of approximately seven years. The learned master dismissed the son's application for an extension of time. For the reasons which follow, the appeal should be allowed, and the time extended.[2] The widow is the first respondent in her capacity as executrix and the second respondent in her personal capacity. The following matters are taken from the master's findings and the evidence before the master. The matters referred to below are, in the broad, not in contest on the affidavit material before the master, save to the extent expressly indicated. The father died on 8 May 2008, leaving an estate worth approximately $7 million. Probate was granted to the widow on 16 October 2008. The widow is the sole beneficiary of the father's estate. The father's will made no provision for the son or his sister, Sian.[3] [3] Primary decision [1]. The son was born on 25 July 1980 and was 27 at the time of his father's death. Throughout his life he was encouraged by his father to pursue the life of a farmer.[4] The farms, at the time of his father's death, comprised 19 lots consisting of approximately 2,400 acres.[5] [4] Primary decision [7].[5] Appellant's affidavit sworn 17 February 2016 (appellant's first affidavit), pars 15 ‑ 17; GB 16. The son's affidavit material included evidence to the following effect, which the master accepted for the purposes of the application. The father had created an expectation that the farms were to become the son's upon the father's death. The father had expressed the desire on a number of occasions for the son to inherit the farms and continue the farming enterprise like his father and grandfather before him. The son said that he made substantial contributions to the farms and farming business. After the father's ability to run the farm was diminished due to injury and poor health, the son gave up his own carpentry business to return to the farms and work the farming business with his father. By returning to the farms he reduced his income and arguably reduced his future income prospects. The son introduced modern farming techniques to his father's farming operation. He expanded the farming operations and generated new income streams for the farming business. He did not receive any financial benefit from the additional income generated and, between 2002 and 2008, he worked for a relatively modest income and received little in the way of financial benefit. He worked long hours and did everything that was necessary to advance the farming enterprise.[6][6] Primary decision [7] ‑ [9].

Ratio Decidendi

Legal Principle Established

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