WHEATLEY v GWENYTH MARY WHEATLEY as executor of the estate of the late GERALD LEOPOLD WHEATLEY

[2018] WASCA 34

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Succession Law
2. › Family provision
3. › Extension of time to bring application
4. › Delay of seven years
5. › Whether justice of the case requires grant of leave
6. › Relevance of applicant's genuine belief in alternative agreement resolving estate dispute
7. › Family Provision Act 1972 (WA), s 7(2)(b)
1. Succession Law
2. › Family provision
3. › Extension of time
4. › Factors relevant to exercise of discretion
5. › Explanation for delay
6. › Financial inability to commence proceedings
7. › Negotiations between parties
8. › Whether estate distributed
9. › Family Provision Act 1972 (WA), s 7(2)(b)
1. Appeal
2. › Appellate intervention
3. › Appeal from discretionary decision
4. › Whether master made error of fact or law
5. › Re-exercise of discretion
6. › House v The King principles
7. › Whether failure to take into account material consideration

Quick Take

In applications to extend time under s 7(2)(b) of the Family Provision Act 1972 (WA), the strength of the applicant's case beyond mere arguability is a relevant consideration in the overall exercise of discretion, disapproving Young v Kestel to the extent it suggested otherwise. An applicant's genuine belief in the existence and enforceability of an alternative agreement that would resolve the estate dispute is capable of providing a sound explanation for delay in bringing proceedings under the Act. A finding that borrowed funds were available for litigation funding requires evidence that the funds could lawfully and practically have been applied for that purpose.