Seven Years Too Long: Time Limits for Making a Claim on an Estate


The Supreme Court of Western Australia has recently refused a plaintiff’s application to extend the time in which to bring a claim against his late father’s estate.

In the previous Update Tick Tock, The Clock’s On we referred to the strict 6 month time limit in which to commence a claim on a deceased person’s estate pursuant to the Family Provision Act 1972 (WA) (the Act).

In the case of Wheatley v Wheatley [2016] WASC 248 the plaintiff’s father died in May 2008, and left an estate of approximately $7 million. Probate was granted to the deceased’s wife (the plaintiff’s mother) in October 2008. Under the Act the limitation date to bring a claim against the estate was in April of 2009. In 2016 the plaintiff applied to the Supreme Court and sought an extension of almost 7 years.

Master Sanderson dealt with the application by considering two aspects:

  • the length of the delay; and
  • the strength of the plaintiff’s claim.

Dealing with the second question first, the Master formed the view that the plaintiff’s case was arguable.

The plaintiff was 27 when his father died and claimed that throughout his early life he was encouraged to pursue the life of a farmer. His father created an expectation that the family farms were to become the plaintiff’s when he died. When his father became ill, the plaintiff gave up his own carpentry business to take up full time work on the farms with his father.

This decision reduced the plaintiff’s income and future income prospects. He contributed to the business by expanding the farming operations and claimed to not receive any of the additional income which flowed from this. It was held that the plaintiff’s contribution to the development of the deceased’s estate in the six years prior to this date, made it arguable that a moral duty to the plaintiff arose which the deceased failed to discharge.

The Master then considered the question of delay. The plaintiff explained his delay as follows:

  • he did not know until October 2009 that he could in fact challenge his father’s will;
  • in December 2010 he was told it would cost him a considerable amount of money to commence such proceedings, funds which he did not have available at that time; and
  • in December 2012 the plaintiff believed he had an agreement with the second defendant (his mother) concerning his late father’s estate.

The plaintiff’s mother in her personal capacity (second defendant in the proceedings) brought to the court’s attention that the plaintiff did not produce any evidence as to his financial status in December 2010. It also became apparent that the plaintiff received legal advice in August 2010 and in July 2013 the plaintiff acquired a loan for $300,000, yet he still did not take any action.

The Master dismissed the plaintiff’s application, finding that the plaintiff had failed to provide an adequate explanation for the lengthy delay and the Master having formed the view that when all of the factors were looked at together it was not in the interests of justice to grant the extension sought. The Master also commented that the plaintiff had sought legal advice and made a conscious informed decision not to proceed, which was a strong factor against a grant of leave for an extension of time.

Another factor against the grant of leave, albeit not a large factor, was that the estate was distributed many years ago.

For more information on this Update or any estate litigation matter please contact Associate Ann Spencer on (08) 9321 3755.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.