Time limits to challenging a Will

Scott Wheatley was encouraged by his father, Gerald to be a farmer. Gerald created an expectation that Scott would inherit the family farms and continue the farming enterprise started by his grandfather.

Gerald suffered from poor health toward the end of his life which limited his ability to run the farm, Scott gave up his own carpentry business to return to the farms and work the farming business with his father, arguably reducing his future income prospects.

During this time Scott introduced modern farming techniques to his father’s farming operations, expanded the farming operations and generated new income streams for the farming business working for a relatively modest income and received little in the way of benefits.

Scott argued that he worked long hours and made substantial contributions to advance the farming enterprise.

Scott was 27 years old when Gerald died in May 2008, leaving an estate of approximately $7 million. Probate was granted to Scott’s mother Gwenyth in October 2008.

The Family Provision Act 1972 (WA) has a strict 6 month limitation date to bring a claim against the estate. In 2016 Scott applied to the Supreme Court and sought an extension of almost 7 years.

The Court considered the length of the delay; and the strength of Scott’s claim.

The Court agreed that Scott’s contribution to the development of Gerald’s estate, made it arguable that Gerald owed a moral duty to Scott which he failed to discharge.

Scott explained his delay was based upon the fact that he was unaware that he could challenge Gerald’s will until October 2009; when he made enquiries about challenging the Will in December 2010 he was told it would cost him a considerable amount of money which he did not have at that time; finally Scott believed that he and his mother had come to an agreement about the estate in December 2012.

Gwenyth submitted that Scott did not produce any evidence regarding his financial status in December 2010, and although he received legal advice in August 2010 and had taken out a loan of $300,000.00 he still did not commence proceedings until 2016

The Court dismissed Scott’s application, as he had failed to provide an adequate explanation for the delay and on balance it was not in the interests of justice to grant the extension sought. A strong factor was that Scott had sought legal advice and made a conscious informed decision not to proceed to a lesser extent was the fact that the estate was distributed many years ago.

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