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Extension Of Time Limits (WA)

In Western Australia, an eligible applicant can only contest a will in the six months following the issuance of the Letters of Administration or Grant of Probate. While this may seem like a sufficient window to take legal action, there are often reasons why a claimant fails to file within this time limit. In that event, there is a narrow avenue for a claimant to make a Family Provision Claim outside the time limit under exceptional circumstances. This article explains the conditions that might prompt the Supreme Court to allow an extension of time limit with illustration from a recent case study.

Contesting A Will In Western Australia

Someone may choose to dispute a will if they feel that they were unfairly excluded from the will or left with insufficient provision. In Western Australia, a person is able to contest a will if they are an eligible person under the Family Provision Act 1972, who feels that they have been left inadequate provision. The court will assess a claim with a view to the claimant’s financial circumstances, the relationship between the deceased and the claimant compared to other beneficiaries, and the overall size of the estate. The claimant is responsible for establishing that the deceased owed a duty to them and failed to provide for their ongoing welfare.

Time Limits In Western Australia

Time limits differ across Australia, but in Western Australia, it is restricted to six months from the Grant of Probate. It is particularly important to file before the deadline because after the limitation period, an executor is free to begin distribution of the estate to the beneficiaries, and the court is far less likely to grant an extension of the time limit when the assets of the estate have already been passed on to the intended recipients.

Recent common law has established some key precepts that the Supreme Court of WA will consider before granting an extension of time limit to contest a will:

  1. The court has unfettered discretion to allow an extension of the time limit as long as it is just and proper;
  2. The onus is on the plaintiff to prove that there are sufficient grounds for allowing an out of time application, thereby depriving the beneficiaries of the protection afforded by the time limit;
  3. The limitation period is, in fact, a substantive provision and not just a procedural limit;
  4. The court should consider the length of, and reason for, the delay in making the application;
  5. It is significant if the plaintiff negotiated with the estate at any point before or after the Grant of Probate was issued;
  6. It is also significant if the estate was already distributed when the plaintiff notified the executor and when they filed the claim with the court;
  7. The court will take note if the plaintiff would have redress against anybody else if the court refuses an extension of time limit; and
  8. The court should give consideration to whether the case itself is arguable but not undertake a closer look at the merits of the substantive claim.

Case Study

In a recent Western Australia case, Attwell v Attwell [2021], the plaintiff applied for an extension of time to bring proceedings for a Family Provision Claim. This was a new stage in the ongoing dispute over the estate, which had already seen a validity challenge and an abandoned appeal of the court’s ruling.

The testator died while incarcerated, leaving a deceased estate valued between $10 and $13 million dollars. The plaintiff, one of the deceased’s sons, filed a Family Provision Claim eleven months out of time. The defendant, another son, argued that the deceased during his lifetime had made provision for the plaintiff in amounts totalling approximately $5 million dollars, and it was unnecessary to make further provision. The court found that the benefits that the plaintiff received during his life were only relevant in so far as they impacted his current financial circumstances and, as such, his need for financial provision from the estate. The issue for the court, in this case, was whether the will made adequate provision for the plaintiff.

The court found that the delay in application, although “not inconsiderable”, must be viewed in the context of the relationship between the brothers. The executor confirmed that he was aware of the plaintiff’s intention to make a claim well before the end of the expiry period and that the estate had been negotiating with the plaintiff. The executor also affirmed that the estate has not been distributed fully and that it would not cause practical difficulties if the court ruled in the plaintiff’s favour.

The court noted that the plaintiff personally gave no explanation for the delay beyond the brief mention of time commitments, financial constraint and mental health issues relating to the litigation over the will. The court found that, on balance, this explanation did not by itself justify an extension of the time limit. However, taking all other matters into account, the court was satisfied that they should grant leave, based on the:

  • Continued negotiations between parties since the date of Probate Grant;
  • The fact that the estate had not been fully distributed;
  • The fact that the plaintiff had no redress against another party; and
  • The fact that the plaintiff’s position was arguable.

As this case demonstrates, it is possible, but can be difficult, to justify an extension of the time limit to contest a will in Western Australia. Our Western Australia contested wills team can help you draft a persuasive application so that your interests are protected. Please telephone 1300 038 223 or contact our friendly team to discuss your legal claim without delay.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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