YOUNG v KESTEL (As Executor of the Will and Estate of DOUGLAS TATE YOUNG (DEC))

[2003] WASCA 190

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Succession Law
2. › Family provision
3. › Extension of time to apply
4. › Claim by widow
5. › Large and complex estate
6. › Delay of ten and a half months after expiry of statutory period
7. › Whether justice of the case required leave to file out of time
8. › Partial distribution of estate
9. › Whether distributions to beneficiaries precluded extension
10. › Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(2)
1. Succession Law
2. › Family provision
3. › Extension of time to apply
4. › Factors relevant to exercise of discretion
5. › Whether applicant has arguable case
6. › Whether court should evaluate strength of case on extension application
7. › Significance of delay and explanation for delay
8. › Effect of negotiations between parties
1. Succession Law
2. › Family provision
3. › Distributed assets
4. › Whether partial distribution of estate bars extension of time
5. › Statutory protections against inequitable disturbance of distributed assets
6. › Inheritance (Family and Dependants Provision) Act 1972 (WA), s 9
7. › Trustees Act 1962 (WA), s 65(5), (8)
1. Appeal
2. › Appellate review of discretionary decision
3. › Whether errors of fact and law vitiated exercise of discretion
4. › Fresh exercise of discretion by appellate court

Quick Take

When considering an application for extension of time under s 6(2)(b) of the Inheritance (Family and Dependants Provision) Act 1972 (WA), the court must consider the statutory protections in s 9 of the Act and s 65 of the Trustees Act 1962 (WA) which may prevent any order being inequitable as regards distributed assets; partial distribution of the estate does not necessarily preclude an extension of time where those protections apply. The court must also carefully distinguish between assets received from the estate and non-testamentary benefits from trusts and superannuation funds when assessing the adequacy of provision. Where the deceased's financial affairs are complex and the applicant has been unable to obtain sufficient information to make an informed decision about whether to commence proceedings, this may constitute a sufficient explanation for delay.