Drake v Bradshaw

[2018] WASCA 78

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Family provision
3. › Application for leave to file out of time
4. › Relevant factors
5. › Whether strength of applicant's admittedly arguable case is a relevant factor to consider
6. › Family Provision Act 1972 (WA), s 7(2)(b)
1. Succession
2. › Family provision
3. › Application for leave to file out of time
4. › Distribution of estate
5. › Significance of distribution to exercise of discretion
6. › Whether s 65(8) of Trustees Act 1962 (WA) provides complete answer to prejudice from distribution
7. › Family Provision Act 1972 (WA), s 8, s 9
8. › Trustees Act 1962 (WA), s 65
1. Appeal
2. › Appeal from exercise of discretion
3. › Error of principle not material to outcome
4. › Whether appellate court would exercise discretion differently

Quick Take

On an application for leave to file a family provision claim out of 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 factor in the exercise of discretion, though in many cases the court will be unable to assess the case as better than arguable on the papers. Section 65(8) of the Trustees Act 1962 (WA) does not necessarily provide a complete answer to prejudice arising from estate distribution; the attendant complexity, uncertainty and costs of litigating distributed estate claims may be significant factors against granting leave, particularly in small estates.