Beware of the limitation date in inheritance claims!

Executor Assist Programme
May 31, 2018
Capped Legal Fees
March 7, 2019

The recent case of DRAKE V BRADSHAW* illustrates that if you have a potential inheritance claim then you need to act quickly in making such a claim because if you don’t, you may miss the boat entirely, even if you have an arguable case for further provision.

In WA, an eligible person (such as a spouse or child) has six months from the date of the grant of Probate to make a claim. This is known as the “6 month time limit”.  If a claim is not made within the 6 month time limit then a person must ask the Court for leave to apply outside of the time limit.

Background

In Drake v. Bradshaw, the Applicant was the son of the deceased and under the Will he stood to receive approximately $18,000. He was outside the time and had to apply for leave to make an application outside of the time limit. When he applied, 1 year and 9 months had passed since the expiry of the 6 month time limit. The deceased’s Will provided for her home, contents and car to be given to one of her daughters (who was also the executor of the Will). The remainder of the estate was to be divided equally between her 3 adult children. After the expiry of the 6 month time limit, and before he had applied for leave, the estate had been distributed.

The Court had to consider whether leave should be granted and in the circumstances of the case the Master identified the relevant factors for consideration were:

  • the reason for the delay in bringing the application;
  • whether the son had an arguable case; and
  • whether the beneficiaries had altered their position due to the failure to act within the timeframe.

By the time the application for leave was made, the daughter, who received the majority of the estate, had already made use of the monies she had received in distribution and the Court held that this was a decisive factor against granting leave.

Key Issues

If you think you may have a basis for an Inheritance Claim, and you don’t make an application within the 6 month time limit then you may end up with an invoice for legal services without the opportunity to apply for further provision from the estate.  If you are a beneficiary under the Will then your share may be significantly reduced by the legal costs you have incurred in making the application for leave. Or worse, if you are not included in the Will at all then you may end up with nothing but a debt in the form of legal fees.

The Court has made it clear that it does not matter how strong your claim is, the test for extending a time limit is merely whether it is arguable.  So you may have very genuine financial need but if the estate has already been fully distributed prior to your application and the beneficiaries have spent their entitlements then this factor may be persuasive to the Court in refusing leave.

So, what should you do if you believe you’re in need of further provision from an estate?

Avon Legal’s Solution

Our cost effective initial consultation for beneficiaries is designed specifically for the beneficiary seeking advice on the strength of their claim for further provision. We offer a detailed 1 hour “Case Merit Assessment” appointment at the rate of $385.00 (inclusive of GST).

We also encourage parties to reach a mediated outcome as early as possible to avoid costly court proceedings. Many people don’t realise that negotiations can commence prior to the grant of Probate.  We offer a fixed fee package to assist beneficiaries in negotiating an outcome:

  • preparation of a sworn statement stating their circumstances and need for further provision; and
  • representation at a half day mediation (either private mediation or court ordered)

If you’re not sure if it is worth investing in the package, then you may wish to consider booking for our Case Merit Assessment consultation to help you decide whether to make a claim at the earliest opportunity.

If you would like to know more about your options, please call us on 08 9274 1977 or email us at admin@avonlegal.com.au.

*[2018] WASCA 78

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