When someone passes away, the law tells us that their property should be distributed in accordance with inheritance laws without delay.
The window for taking legal action that seeks to affect a deceased estate is therefore much smaller than that for bringing other kinds of civil actions. Personal representatives should be able to distribute an estate without the threat of legal proceedings hanging over the estate for longer than is necessary.
The Family Provision Act 1972 ("FPA") is a WA act which allows certain people to bring an application for further provision from the estate of a deceased person. This kind of action must be commenced within six months of a grant of probate or letters of administration in relation to the estate. This is a substantive provision of the FPA, meaning it is critical - it is not merely a procedural time limit.
In looking at an application to bring FPA proceedings out of time, the Court weighs up factors including:
- how promptly the plaintiff has made their application for an extension of time
- what is just and proper in the circumstances
- whether the estate has been distributed
- whether the plaintiff has established sufficient grounds for overlooking the general rule
- whether the plaintiff has had negotiations with the defendant(s)
- whether the refusal would leave the plaintiff without redress
- whether the plaintiff has an arguable case
Recent decisions of the Master of the Supreme Court of WA demonstrate the serious consequences for potential claimants who miss their window:
- O'Brien v Duthie, Van der Schoor & Prince  WASC 227: In this case, two adult children sought and were denied leave to bring FPA proceedings. They made an application for leave in late 2015, more than five years after the grant of probate in the will of their late father. While plaintiffs got legal advice in 2007 and again in 2013, in both instances they decided not to proceed with any claim. The most important factors weighing against a grant of leave were the length of delay (4 ½ years), the fact the delay was not explained adequately, and the fact that the plaintiffs did not have a case that was clearly arguable.
- Drake v Bradshaw  WASC 228: In this case, an adult son sought leave to bring FPA proceedings for provision from the estate of his late mother more than two years after the grant of probate. By this time, the estate had been distributed. While the plaintiff had an arguable case (perhaps even a "strong" case), and the delay was due at least in part to his ignorance of the law, the Master found that it would not be in the interests of justice if the plaintiff were granted leave to issue FPA proceedings.
As demonstrated, it is crucial that people get timely advice. Even a claimant with a strong case can unwittingly find they are unable to bring a claim if they miss their window. Similarly, personal representatives who are on notice of a potential claim need to know when they can safely distribute the estate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.