Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart

[2009] WASCA 14

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Inheritance
3. › Family provision
4. › Application under Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1)
5. › Whether adequate provision made for proper maintenance, support, education or advancement in life
6. › Two-stage process
7. › Jurisdictional question
8. › Relevance of need and moral claim
1. Succession
2. › Inheritance
3. › Family provision
4. › Extension of time to file application
5. › Whether 'justice of the case' requires leave to file out of time
6. › Relevance of strength of substantive case
7. › Whether arguable case established
8. › Inheritance (Family and Dependants Provision) Act 1972 (WA), s 7(2)(b)

Quick Take

When determining whether 'the justice of the case' requires an extension of time under s 7(2)(b) of the Inheritance (Family and Dependants Provision) Act 1972 (WA), the court may and should consider the strength of the substantive case. If the evidence reveals no arguable case on the merits, the court cannot be satisfied that justice requires leave. In family provision claims, where the applicant cannot demonstrate financial 'need' in any relevant sense, it will be difficult to succeed absent a powerful moral claim such as proven contributions to the deceased's welfare or estate.