What are the limitation periods for a claim under the family provision act and in what circumstances can you seek an extension?

Family provision legislation enables a court to override a will or intestate[1] distribution in favour of eligible applicants on specified grounds.[2] These matters often arise when a person has not been adequately provided for in the will of a family member. In order for a claim to be successful, the court’s must convinced that the will fails to adequately make provision for the proper maintenance and support of eligible applicants.[3] Western Australia uses a ‘proper maintenance, support, education or advancement in life’[4] approach to determine an applicant’s family provision claim.

Western Australia has statutory time limits for bringing a claim under family provision. An application can be made within 6 months from the date on which the Supreme Court issues a Grant of Probate of the Will.[5] 

Certain circumstances justify an extension of time and hence a restriction regarding the final distribution of the deceased’s estate. Seeking an extension is ‘no triviality’,[6] and the Court must be satisfied that there would be injustice if the applicant was not given leave to file out of time.[7]

The principles applicable to applications for extension of time under the Act[8] were established by the Court in Clayton v Aust[9] and are summarised as follows:[10]

  • The discretion of the Court is unrestricted but must be exercised judicially in accordance with what is just.
  • The onus lies on the applicant to establish sufficient grounds for the Court to take the matter out of the general six-month time period and exercise its discretion to extend time.
  • The Court must consider the reason for the delay and how promptly the applicant acted after finding out about the Act. The Court also must consider the nature, extent and reason for the delay.
  • Whether negotiations commenced within the six-month time limit (i.e. is part of the time delay accounted to attempts to settle the matter out of court?).
  • Had the estate been distributed before a claim was made? If so, the beneficiaries are more likely to be prejudiced by the granting of leave.
  • Was the delay the fault of the applicant’s solicitors? If so, leave will not be refused because a claim for damages against solicitors is unlikely to fully compensate the applicant and hence disadvantage the applicant.
  • If leave is refused, will the applicant have redress against anyone else?
  • Does the applicant have an arguable case on the merits?

[1] Where a person dies without having in force a valid will.

[2] Rosalind Croucher and Prue Vines, Succession: Family, Properties and Death: Text and Cases (LexisNexis, 4th ed, 2013) 578.

[3] Above n 2, 585-586.

[4] Family Provision Act 1972 (WA) s 6(1).

[5] Above n 4, s 7(2)(a).

[6] Andre v Perpetual Trustees WA Ltd [2009] WASCA 14, 10 [39].

[7] Above n 4, s 7(2)(b).

[8] Family Provision Act 1972 (WA).

[9] Clayton v Aust (1993) 9 WAR 364.

[10] John Hockley, Wills Probate and Administration WA (LexisNexis, 2019) 610.

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