Family Provision Act Claims – When Executors are left “Holding The Baby”

You have been appointed executor, the testator has died and now there’s a Family Provision Act 1972 (WA) (Family Provision Act) claim on foot and the other beneficiaries want nothing to do with the application so you’re left “holding the baby”. What do you do?

Unfortunately the answer is not always straightforward as the executor’s role is essentially to “defend the will”, so often executors need advice too. The recent decision of Acting Master Gething in Browne v Matthew Jaime Bassett-Scarfe as executor of the will of the late Dawn Lorraine Phillips [2015] WASC 422 demonstrates an executor’s ability to seek the court’s direction under s 92 of the Trustees Act 1962 (WA) (Trustees Act) when in doubt as to the appropriate course of action.

In this case, Mr Bassett-Scarfe, in his capacity as executor, had to make a decision on whether or not he was going to oppose Joseph Browne’s Family Provision Act claim. Mr Browne was the de facto partner of the late Ms Phillips. She died on 10 October 2013 and by her will dated 8 March 2012, left Mr Browne 10% of her residuary estate which equated to approximately $34,000.

Mr Browne commenced his claim for further provision from Ms Phillips’ estate and all 20 other beneficiaries (none of which received in excess of 10% of the estate) were named as defendants. Only Mr Bassett-Scarfe entered an appearance, 5 defendants filed a notice to abide by the court’s decision and the others, while they did not wish to file an appearance, expressed a desire for Mr Browne’s application to be opposed.

The matter did not settle at mediation and so Mr Bassett-Scarfe sought the court’s direction (as he was entitled to) under s 92 of the Trustees Act. An executor has a duty to do one of two things when there is a Family Provision Act claim on foot – either compromise (settle) a claim or contest it, and seek to maintain the terms of the deceased’s will.

Mr Bassett-Scarfe’s question to the court was simple: Is it appropriate that the executor oppose Mr Browne’s claim?

Ordinarily in such applications, the executor should firstly obtain a legal opinion. While there was no evidence of this before the court, the Acting Master was satisfied on the basis that Mr Bassett-Scarfe was a legal practitioner and had put into evidence a copy of his letter to Mr Browne’s lawyer which contained a “…well-reasoned argument as to why he would be justified in continuing to oppose the application” (see [19]). The Acting Master also commented that obtaining an opinion of independent counsel would have been a waste of estate funds given it was a small estate.

In considering the likely legal costs to be incurred relative to the size of the estate and the consequence to the estate funds if a less “cost effective” beneficiary defended the claim, the court held that Mr Bassett-Scarfe was justified in continuing to oppose Mr Browne’s action and would be justified in engaging independent counsel going forward. He was also entitled to the costs of his application.


Provided Mr Bassett-Scarfe follows the direction of the court, he will be protected from any claim by a beneficiary arising from the action. In saying that, the Acting Master did not preclude Mr Bassett-Scarfe from settling the matter if both he and independent counsel were of the view that an offer of settlement was reasonable and fair.

If you are an executor of a will that is being contested in any way, contact lawyer Ann Spencer on (08) 9321 3755.

The information published on this website 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.