GIGLIA -v- GIGLIA [2026] WASC 110 (2 April 2026)

1. I will commence by identifying the parties and the background to the plaintiff's application.
2. The plaintiff's late mother, Mrs Domenica Giglia, left a will dated 19 May 2006 (the 2006 Will).[2] That will named the defendants, Mr Antonino Giglia and Mrs Calogera (Gloria) Giglia, as executors. Antonino is Carmelo's only living brother, with Antonino being the older brother. Antonino and Gloria are husband and wife. The sole beneficiary under the 2006 Will was Antonino. The 2006 Will made no provision for Carmelo and does not mention him.
3. Domenica passed away on 7 September 2023. Probate was granted to Antonino and Gloria on 19 January 2024.
4. The evidence discloses that the main asset of the estate was Domenica's residential property in Westminster. The property was sold in May 2024 for $500,342.55, with the net proceeds of $417,392.14 being distributed to Antonino thereafter, although the precise date of the distribution is unclear on the evidence.[3]
5. The remaining undisputed assets are described as 'costume jewellery' of no value and a property in Sicily which is estimated to be worth approximately $50,000 to $125,000.
6. The statutory six-month period mandated by the FPA for applications pursuant to s 6(1) expired on 19 July 2024. Carmelo filed the present application on 27 May 2025, some 10 months after the six month time period had expired.
7. Carmelo argues that his delay should be excused because he was unaware of his disinheritance until November 2024 and he was not aware of the legal time limits until January 2025. He says that, until November 2024, he believed he was a beneficiary to his mother's will. He contends that his brother, the executor, engaged in unconscionable conduct by not being forthcoming about the probate process and the contents of the 2006 Will. He points to messages he exchanged with his brother during 2024, which culminated in a meeting between the brothers in early November 2024.
8. Carmelo is married with three children. He is 63 years old. He is an unsophisticated man by any measure. His combined net assets with his wife are around $25,000. Their income marginally exceeds expenditure. He works as a storeman and a driver. He holds no qualifications and has variously worked in his life as a kitchen hand, manager, construction worker, and groundsman. His wife, who is originally from Myanmar, which itself appears to have been a source of some tension between Carmelo and his parents, is not presently working. Carmelo and wife were made bankrupts in 2006 but have since been discharged. Carmelo thus asserts significant financial need and argues he has a strong claim for provision from the estate. In contrast, Carmelo emphasises that Antonino is retired, has net assets of around $844,000 with his wife, Gloria, and together they have a net income of around $3,000 per fortnight.[4] That said, Antonino describes his own financial position as 'modest' and says he relies on social security and his superannuation.[5]
9. Carmelo has sworn two affidavits in support of the application, dated 27 May 2025 and 24 November 2025 (the First Carmelo Affidavit and the Second Carmelo Affidavit respectively). The second of these affidavits in effect responds to factual matters raised by Antonino in his affidavits.
10. Antonino opposes the application in his capacity as joint executor and beneficiary. Gloria opposes the application in her capacity as a joint executor.
11. The defendants argue that the application for leave should be denied due to the substantial and unexplained delay. They maintain that Carmelo was informed in writing by the deceased, in 2006 and 2016, that he was excluded from the will.[6] They have pointed to the letters from Domenica explaining her reasons, which centre on the long-standing estrangement with Carmelo.[7] The fact of the estrangement does not appear to be in dispute, although the causes for it are contested.
12. Further, the defendants argue that the estate has largely been administered and distributed, and granting leave would prejudice the beneficiary who has received his entitlement in good faith (namely, Antonino).
13. The affidavit material filed by the defendants addresses the relationships within the family and the wishes of Domenica which led to Carmelo's exclusion as a beneficiary from the 2006 Will. I refer to the two affidavits sworn by Antonino on 27 May 2025 and 22 July 2025, the latter being directed to the assets and liabilities of the estate (respectively the First Antonino Affidavit and the Second Antonino Affidavit).
14. The evidence also addresses the knowledge of Carmelo as to the terms of the 2006 Will and the probate process, and the communications in this regard between Carmelo and Antonino, including various text messages.
15. A core part of the defendants' opposition to the application is the lengthy estrangement between the plaintiff and the deceased prior to her death, and the stated wishes of the deceased (and her husband) which explain why the plaintiff was excluded from the will. The deceased and her husband signed two letters which have been referred to in the evidence, dated 23 November 2003 and 19 May 2006, which directly concern the exclusion of Carmelo from their will. Additionally, the deceased signed one letter on her own, dated 14 January 2016. The three letters were originally written in the Italian language, but have been translated. I did not understand there to be any serious dispute as to the accuracy of the translation.
16. A summary of the events described in the preceding paragraphs is set out in the table provided at Attachment A to these reasons.
17. I will return to the factual material in due course. Ahead of that, I should say something about the legislative framework and the principles which govern applications such as this.

1. The present application has been brought pursuant to s 7(2)(b) of the FPA. The question to be addressed on this application is whether an extension of time should be granted, not whether the 2006 Will should be disturbed. However, as the strength of the plaintiff's underlying claim is a relevant factor for this purpose, it is necessary to address the terms of s 6(1) of the FPA, and the nature of the substantive application, although it is not appropriate to make any final assessment of the substantive application.
2. Section 6(1) provides:
   1. Court's powers to order deceased's estate to provide for s. 7 applicant

(1) If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

1. The regime requires an applicant who seeks to disturb the testamentary wishes of the deceased, or the usual operation of the law relating to intestacy, or the combination thereof, to demonstrate several matters, in order to engage the discretionary power of the court to make an order under s 6(1) of the FPA.
2. First, the applicant must be a person within s 7(1) of the FPA, which includes a person who was married to the deceased immediately before their death, a child of the deceased, and a grandchild of the deceased. I pause to note there is no dispute that the present applicant, being the son of the deceased, plainly has standing to bring the application.
3. Second, it must be shown that the disposition of the deceased's estate as effected by his or her will, or the law relating to intestacy, or the combination of that will and that law, is not such as to make 'adequate provision' from the estate for the 'proper maintenance, support, education or advancement in life' of the applicant.
4. Where the applicant is an adult child of the deceased, it may be accepted that proper maintenance and education are less likely to be significant features of the analysis. More typically, the focus is on 'advancement in life'. The applicant will have the onus of satisfying the court, on the balance of probabilities, of the justification for their claim. The question for the court's consideration on such applications is to be assessed having regard to the facts and circumstances of each individual case, involving as it does a broad evaluative judgment which is not to be constrained by preconceptions and predispositions.[8]
5. To be clear, there is no presumptive testamentary entitlement of an offspring, nor is there an obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other.[9]
6. Third, the application must be brought within six months from the date on which the 'administrator' becomes entitled to administer the estate of the deceased (and the term 'administrator' includes an executor who has obtained probate, by reason of the statutory definition in s 4(1) of the FPA). The legislation affords an applicant who has not complied with this six month limit the opportunity to seek an extension of time, under s 7(2) of the FPA. The court is empowered to extend time by reference to the 'justice of the case'.
7. Section 7 relevantly states:
   1. Who can apply for provision from deceased's estate

(1) ...

(2) No application under subsection (1) shall be heard by the Court unless -

(a) the application is made within 6 months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or

(b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.

(3) A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired.

1. The onus in such extension applications lies on the party seeking the extension of time. Importantly, it is recognised that the six-month limit is a substantive statutory provision, not merely a procedural time requirement. The burden which lies on the applicant is no triviality. It is necessary for an applicant to make out a substantial case for it being just and proper for the court to exercise the statutory discretion to extend the time.
2. The manner in which this court should approach the exercise of the discretion under s 7(2) of the FPA is the subject of well understood principles, which are non-exhaustive. Master Russell set out the principles in her recent decision in Morgan-Roberts v The Public Trustee,[10] drawing on authorities such as Clayton v Aust[11] and Wheatley v Wheatley.[12] It will be necessary to apply these principles in approaching the present application. In summary:

(a) The discretion must of course be exercised judicially and in accordance with what is just and proper, and having regard to all of the material circumstances.

(b) It is material to consider how promptly, and in what circumstances, the applicant has brought the application for an extension, including the length of the delay and the reasons for the delay.

(c) It will be relevant to consider whether there have been any negotiations between the parties during the six month time limit. Further, it is relevant whether or not the estate was distributed before the claim was made or notified.

(d) Additionally, whether a refusal to extend time would leave the applicant without redress against anyone is a further relevant consideration.

1. The parties have identified several issues which they each say are of particular relevance to the determination of this extension of time application. I will address those issues in turn, then proceed to form a final assessment of the matters in totality to assess whether the extension should be granted.
2. In summary, the salient issues identified by the parties are as follows. First, the length of the delay in bringing the application.[13] Second, the plaintiff's explanation for the delay in this case, which is interconnected with the plaintiff's knowledge of his exclusion from the 2006 Will, and the communications between the brothers during 2024.[14] Third, the fact the estate had largely been distributed before the plaintiff's application was filed.[15] Fourth, whether the plaintiff has an arguable case under s 6(1) of the FPA for proper provision to be made in his favour, in respect of which it is necessary to consider the statements and wishes made by Domenica (and her husband) to the effect that Carmelo would be excluded from their wills.[16] I note the defendants accept the substantive claim for relief is at least arguable.[17]
3. These issues give rise to disputed issues of fact on the evidence. It should be stressed that the court is not able to reach final findings of fact on the disputed matters, bearing in mind this proceedings has been conducted on affidavit evidence without cross-examination of the deponents.

1. I consider the length of the delay in this case to be significant, being an additional 10 months following the grant of probate. The length of this delay requires a cogent explanation from the plaintiff in my view.
2. I should say that there are examples of cases in which extensions have been granted where the delay exceeds 10 months, such as in Morgan-Roberts v The Public Trustee. In that case, the delay was 15 months. The Master observed the delay was significant in that case and concluded that the question whether to grant an extension was finely balanced, but the primary point of dispute in that case was the plaintiff's standing (namely, whether the plaintiff and the deceased had been in a de facto relationship). Having found the plaintiff had an arguable case in that regard, and given the absence of discernible prejudice to the defendant to whom the estate had been distributed, the Master considered the interest of justice warranted the extension.

1. I will next turn to consider the explanation for the delay. It seems to me there are three identifiable sub-periods within the 10 month period which require an explanation, namely:

(a) the period between 31 July 2024 and 3 November 2024, when Carmelo and Antonino met;

(b) the period between 3 November 2024 and around January/February 2025, at which point Carmelo obtained legal advice and became aware of the six-month limitation period; and

(c) the period between around February 2025 and 27 May 2025, at which point the present proceedings were commenced.

1. There are a number of factual matters to consider in this regard. On the one hand, the defendants strongly assert that the plaintiff has been well aware for many years of the terms of the 2006 Will, in the sense that he had been excluded as a beneficiary, and well aware of the reasons for his parents' decision to exclude him.
2. Certainly, when considering the length of the delay, it is relevant to consider when Carmelo first became aware of his exclusion from the 2006 Will. Carmelo contends that he first became aware that he was being disinherited in November 2024, having previously understood that his mother had divided her estate between the brothers in her prior will. Carmelo accepts he was given a copy of the letter from his parents dated 23 November 2003, the terms of which are set out below, but he says he only read to the third paragraph and became upset, tearing up the letter.[18] He denies he was given a copy of any letter from his parents in 2006 explaining that he was excluded from their wills, and also denies receiving any similar letter in 2016.[19]
3. As I have noted, this assertion is contradicted by the evidence adduced by the defendants, who contend that Carmelo was aware of the deceased's wishes as long ago as 2006, and perhaps earlier. Counsel for the defendants has pointed to forensic deficiencies in the second affidavit sworn by Carmelo, which was filed in response to Antonino's affidavit material. The evidence from the defendants indicates that, at that time, Carmelo was provided with correspondence from the deceased, which explained the reasons for her decision to exclude Carmelo from the will. There is evidence that Carmelo was again informed of the deceased's wishes in around January 2016.
4. There is thus a disputed issue of fact on the affidavits as to whether the plaintiff was informed of the deceased's intention to exclude him from the will prior to November 2024. At this stage, it cannot be concluded on the affidavits that Carmelo had knowledge of the 2006 Will prior to November 2024.
5. As the defendants point out, even if Carmelo only became aware of his exclusion in November 2024, at the latest, it is evident there was a further delay thereafter, until mid-May 2025, when he decided to bring this application.
6. This further period of delay is explained by Carmelo by reference to the process of locating and instructing solicitors and the time he needed to make the final decision to bring the application. I accept some time was needed by Carmelo to identify a suitable solicitor and to then instruct the solicitors and have the materials prepared. There was also a period during which the respective solicitors exchanged without prejudice correspondence, which Carmelo says was exchanged to 'see if the matter could be resolved'.[20] The evidence in this regard is necessarily sparse given the communications were without prejudice in nature. Overall, these matters account for much of the period of delay after November 2024.
7. As to the period between January 2024, when probate was granted, and November 2024, Carmelo explains the delay by reference to the process by which he exchanged communications with his brother, Antonino. There is evidence from Carmelo that, during the course of these communications, both by telephone calls and by text message, Antonino did not at any point clarify or confirm with Carmelo that he was excluded from the 2006 Will. It appears, at least on Carmelo's account, that he made enquiries of Antonino as to the terms of their mother's will following her funeral in late 2023. Carmelo recalls being told that Antonino would keep him updated about the probate proceedings. Carmelo deposes that Antonino did not want to discuss the issue with him, when they spoke in December 2023.
8. Then in January 2024, Carmelo and Antonino spoke again. Carmelo deposes that:[21]

[10] In January of 2024, I received a text from Antonino, that was meant for Gerry (one of Antonino's sons). In the message Antonino had asked if Gerry had enough moving boxes. I later saw Antonino at a funeral for another family member and was told once again by Antonino words to the effect that that the probate had been filed but still not finished.

[11] In January 2024 I also asked Antonino for a copy of the Will and a statement of my mother's assets and liabilities as Antonino told me words to the effect that my mother owed a lot of money. Antonino also said words to the effect that our mother did not have much money left even though our father had left his superannuation to our mother,

[12] I was not provided a copy of the Will at this time. I did not follow up this request because I thought I was a beneficiary in the Will. Under my mother's previous will her estate had been divided equally between myself and Antonino.

[13] In February, I called Antonino to discuss the issues concerning my mother's will once again. I was told by Antonino words to the effect that he was having some problems and that he would get back to me.

[14] In May, I once again got in touch with Antonio to discuss the proceedings of the will. Antonino said to me words to the effect that he was waiting for the last bit of paperwork and that after he had received the paperwork, it would mean that we could start the process of dividing up our mother's property.

[15] In the middle of July 2024, Antonino told me words to the effect that probate has finally been finished. He also said words to the effect that he was in the process of paying the tax, it would be after he finished with the tax that we would start the paperwork of our mother's will and that the estate could be divided in accordance with the Will.

1. Carmelo deposes that he did not raise any queries at this time as he thought at all times he was a beneficiary under the 2006 Will. Carmelo next deposes that:[22]

[16] In August 2024, I again asked Antonino words to the effect if we could arrange a time to meet with each other to come together and discuss the proceedings of the will. Antonino responded by telling me words to the effect that he was busy and had a lot to do. He also told me words to the effect to wait until he had settled down to arrange a meeting together.

Antonino also told me words to the effect that the tax owed by Domenica's estate had been paid to the ATO.

[17] In November 2024 Antonino finally arranged a meeting for me to see the will. I enquired with Antonino to receive a copy of the will; only for him to tell me words to the effect that he did not need to give me a copy of the document as I was not mentioned in the will.

1. Prior to November 2024, Carmelo deposes that Antonino had never informed him that he was not a beneficiary under the 2006 Will and, although Antonino showed him a copy of the 2006 Will at their meeting and allowed him to read it, Antonino took the copy back. Further, during this meeting, Antonino also informed Carmelo that he had to pay more income tax for their mother's estate.
2. In broad terms, the text messages between the brothers bear out the chronology of events to which Carmelo has deposed. Further, there is no indication in Antonino's messages to Carmelo that Carmelo had been excluded from the 2006 Will. One might reasonably have expected the executor to have made that abundantly clear at an early juncture, given the basis on which Carmelo was making his enquiries.
3. I accept that conduct on the part of an executor or beneficiary may be relied upon to justify an extension of time, particularly if it might be characterised as conduct which is unconscionable in nature. An examination of the conduct of the executor or the beneficiaries is therefore permissible, although more typically the focus in applications such as this is on the conduct of the applicant and whether he or she has acted in a timeous fashion.
4. On the strength of the affidavit material presently before the court, it can be said that there was no clear statement by the joint executor, Antonino, that Carmelo was excluded from the 2006 Will. He had several opportunities to make that position clear to his brother, but did not do so until long after probate had been settled and the principal asset sold, and the proceeds distributed. It is somewhat unusual that, given the regular queries from his brother and his own view that Carmelo had been made aware of his parents' decision to exclude him from the 2006 Will, that Antonino would not have dealt with the issue in a more decisive fashion. It is also of concern that Antonino informed his brother on 19 July 2024 that probate had 'finally' gone through, and yet it is not in dispute that probate had been granted some six months earlier, on 19 January 2024.[23]
5. The court is left, on the affidavit material, with an inference, which I think is reasonable in the circumstances, that Antonino was prepared to delay matters. I would not describe this conduct as unconscionable or improper, but I think at the very least it was unreasonable and it informs the delay which resulted.
6. In my respectful view, the conduct of Antonino as the executor over this period provides a good explanation for Carmelo's delay in considering his position until November 2024, at which point there is no doubt that Carmelo then knew he had been excluded from the 2006 Will, and would need to make an application under the FPA if he wished to have some provision made in his favour from the estate of his late mother.
7. By 24 January 2025, Carmelo was made aware, when he spoke with solicitors, that there was a six-month time limit for any such applications - which had, by that point, already expired. It was plainly important that Carmelo act with some haste from this point if he wished to challenge the 2006 Will. As I have noted above, a good explanation is proffered by Carmelo regarding the lapse of time after January 2025, in the sense that legal advice was being taken by him and solicitors were exchanging correspondence. I also accept that, given Carmelo's poor financial position, the decision on his part to commence litigation, having regard to the likely costs involved and the potential for adverse costs orders, was not one he would take lightly and would require some reflection on his part. I might also say, with no disrespect to Carmelo, that he appears on the material to be relatively unsophisticated and lacked experience in dealing with difficult legal or financial matters, which provides further context to his delays at this point in the chronology.

1. It can be accepted that the estate has been mostly administered and distributed.[24] I accept on the evidence there is little remaining in the estate from which any order for provision could practically or effectively be made.
2. It is generally recognised that the re-opening of a partially distributed estate may occasion prejudice to those family members who have received distributions, in that it may disturb settled expectations and may cause transactions that have already occurred in reliance on the finality of the administration to be unwound
3. There are some further statutory provisions to which reference should be made in this regard, which address the circumstance in which an estate or part of it has been distributed before an application is made under the FPA. In particular, s 8 and s 9 of the FPA, and s 65 of the Trustees Act 1962 (WA) (Trustees Act), permit an order to be made for payment from a person who has received a distribution from an estate, in lieu of an order under the FPA.
4. Section 8 and s 9 of the FPA state as follows:
   1. Orders after distribution of estate

(1) On an application for an order under this Act, the Court may make an order under section 65 of the Trustees Act 1962, in lieu of an order under this Act, in any case where the estate of the deceased, or part thereof, has been distributed among the persons entitled under the will or intestacy.

(2) Where the Court, in exercise of the power conferred by subsection (1), makes an order under section 65 of the Trustees Act 1962, it shall have the same powers in respect of that order as it has in respect of an order made under this Act.

1. Order not to be inequitable as to assets already distributed

In determining whether, and in what way, provision ought to be made by an order, the Court shall have regard to the provisions of section 65(8) of the Trustees Act 1962.

1. Section 65(1) of the Trustees Act provides that the section applies 'where a trustee has distributed any assets forming part of the estate of a deceased person or subject to a trust, and there is nothing in any Act to prevent the distribution from being disturbed'. Where the section applies, the court may make an order on a claim including an application under the FPA: see s 65(2)(a) of the Trustees Act.
2. Section 65(3) of the Trustees Act provides as follows:

(3) An order under subsection (2) may provide that -

(a) any person to whom any assets, to which the section applies, were distributed, or his personal representative, shall pay to the person making the claim or to the trustee a sum not exceeding the value of those assets; or

(b) any person, who has received, otherwise than in good faith and for valuable consideration, any interest in any assets, to which this section applies, from the person to whom they were distributed or his personal representative, shall pay to the person making the claim or to the trustee a sum not exceeding the value of that interest;

and for the purpose of giving effect to that order the Court may make such further order as it thinks fit.

1. Section 65(5) of the Trustees Act

(5) Subject to the provisions of subsection (6), an order under this section shall not be made by the Court -

(a) where the claim is an application for an order under the Family Provision Act 1972 , unless -

(i) the application is made within the period specified in section 7(2)(a) of that Act; or

(ii) leave to file out of time has been given under section 7(2)(b) of that Act;

(b) in the case of any other claim, unless the application for that order is made within the time within which the applicant could have enforced his claim in respect of the estate, without special leave of the Court, if the assets had not been distributed;

but, notwithstanding the foregoing provisions of this subsection, the order may be made, with the special leave of the Court, on application made within the time within which the applicant could have enforced his claim, in respect of the estate, with special leave of the Court, if the assets had not been distributed.

1. It seems to me, on the face of these legislative provisions, that distribution of the estate, whether in whole or in part, is not expressly stated to be a bar to an application for an extension of time under s 7(2) of the FPA. It is, however, a relevant factor.
2. By reason of s 9 of the FPA and s 65(8) of the Trustees Act, the court must deny, wholly or in part, any relief sought where the distribution has already been made and has been received in good faith and the recipient has so altered their position in reliance on having an indefeasible interest in the assets or relevant interest, and the court considers it inequitable to grant relief in full or in part.
3. Sections 65(8) and 65(9) state:

(8) Where a trustee has made a distribution of any assets forming part of the estate of a deceased person or subject to a trust, relief (whether under this section or in equity or otherwise) against any person other than the trustee or in respect of any interest of any such person in any assets so distributed and in any money or property into which they have been converted, shall be denied, wholly or in part, if the person from whom relief is sought received the assets or interest in good faith and has so altered his position in reliance on his having an indefeasible interest in the assets or interest, that, in the opinion of the Court, having regard to all possible implications in respect of the trustee and other persons, it is inequitable to grant relief or to grant relief in full.

(9) Without prejudice to the provisions of subsection (8), an order under this section may provide that any payment directed to be made by that order shall be made by periodic payments or by instalments, and the Court may fix the amount or rate thereof in the order, and may from time to time vary, suspend or discharge the order for cause shown, as the Court thinks fit.

1. The fact that Domenica's estate has largely been distributed is thus relevant to the analysis in the present case, but I do not regard it as a strong factor here.
2. I say this because the estate has been distributed to one beneficiary, namely Antonino, who was also a joint executor. Further, when Antonino took steps to sell the primary asset of the estate in May 2024, and thereafter distribute the proceeds, he was aware that his brother was interested in the division of proceeds from their mother's estate. Carmelo had been making enquiries from early 2024 in this regard. There are therefore some factual questions which arise as to whether Antonino can maintain that the distribution was received by him in good faith and whether he altered his position on the basis that he had an uncontested right to receive the funds from his mother's estate.
3. I therefore do not consider that the distribution of the estate in this case is a weighty factor which points against the extension being granted.
4. I should also observe that submissions were made on behalf of the defendants regarding the interaction between s 65 of the Trustees Act and the regime in the FPA. It would appear there is no binding authority which addresses the interaction between these regimes and, in particular, which definitively determines the effect of the chaussette to s 65(5) of the Trustees Act.[25] To the extent to which an issue remains in this regard, I will assume without deciding that it does not stand in the way of the plaintiff's present application.

1. The evidence filed by Carmelo provides a basis for his assertion that his advancement in life has not been adequately provided for by the terms of the 2006 Will. To begin with, the 2006 Will makes no provision in Carmelo's favour at all. His financial position is relatively meagre and his health is poor. Ordinarily, I would assess an applicant such as Carmelo as having a good case for relief under s 6(1) of the FPA. Indeed, the defendants concede there is an arguable case.
2. On the hearing of any substantive application under s 6(1) of the FPA, it must be accepted that respect would be given to a 'capable testator's judgment' as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. Where the testator has committed his or her views to writing, the contents of such a statement are likely to reveal evidence of the subjective attitude or beliefs of the deceased.
3. This is of particular relevance in the present case.
4. The defendants submit, and I accept, that 'due weight' should be given to the content of the deceased's written statements.[26] This is because such statements are said to 'reveal the deceased's attitude or beliefs and may cast light on their relationship with the people that are contesting the Will'. Counsel for the defendant has drawn the court's attention to the decision of Hallen J in Plummer & Anor v Montgomery, in this regard.[27]
5. I have earlier referred to the letters written by Domenica and her husband. The first of the letters is dated 23 November 2003, which was written some years before the 2006 Will was executed. It is addressed to the plaintiff, signed off 'With all our love' by 'Mum and dad', and begins as follows:

My dear son Charlie please forgive me if I am annoying you, but as I cannot see you in person I want to tell you by correspondence what your father and I have in our hearts, because unfortunately other people made you hate us and forget us. With this letter we do not expect anything and do not ask for anything.

I want you to know that you are always in our hearts and in our thoughts, because a mother and father never forget of their children. We can have 100 children, but each one has a place in our hearts, and we have loved you and we still love you very much.

1. The letter refers to the difficult relationship between Carmelo's parents and his wife, mentions that Carmelo is 'distant' from his parents, expresses strong sentiments of love towards Carmelo and his children, and concludes with a blessing and a statement that Carmelo would always be in his parents' hearts and their arms would always be open for Carmelo and his family.
2. The letter dated 19 May 2006 is not expressly addressed to any party, and is styled as a statement of wishes. It bears the same date as the last will of Domenica. The letter states:

This letter is from myself, Alberto Giglia, together with my wife, and my wife is writing it under my direction because I have a tremor in my hand.

We leave everything we own to our son Antonino Giglia, house and everything in it, car, and money, because he was always there for us and always respected us.

We have removed our son, Carmelo, because for the last three years we have not seen him and if we need anything from him, we do not even know where to find him.

On the 19th of May three years ago, he offended both of us, he said that we did nothing for him, while we have supported him for 35 years without ever asking for a cent in return, paying everything for his wedding, lending him money and never being repaid, respecting him and his wife and son as well as paying for all expenses. In exchange for that what we got from his wife was that she compelled us to keep the peace, to leave our house during the day, and to leave her in our home. In thanks she told us that she hates me and my wife, refusing to let us see the children. We haven't seen them since 27th October 2002 and our son Carmelo has disowned us as parents.

This is our will.

Signed Alberto Giglia

Signed Domenica Giglia

(emphasis added)

1. Finally, there is the letter dated 14 January 2016 from the deceased addressed to the plaintiff. It is a heartful letter which appears to further explain that Domenica and her husband excluded Carmelo from their wills in 2006 because of Carmelo's behaviour. The letter notes that the parents had not seen Carmelo for some eight years prior to that time. Within the letter, Domenica mentioned that she had earlier written to Carmelo 'with heart in hand and was desperate', and that that earlier letter was 'hand delivered to you by your cousin, but once you read it you ripped it up saying that I did not love your wife'. It is not otherwise necessary to recite the terms of that letter in these reasons.
2. As Hallen J explained in Plummer,[28] the fact the testator has expressed such opinions or beliefs may afford the court warrant for examining the totality of the other evidence in order to form an opinion whether that evidence does support the expressed attitudes or beliefs, citing the decision of Barwick CJ in Hughes v National Trustees, Executors & Agency Company of Australasia Ltd.[29]
3. The FPA facilitates the admission of evidence as to a testator's wishes, and the weight to be accorded thereto. I refer to s 21A(2) of the FPA which states that 'evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible'.
4. The statements made by Domenica to which I have referred above fall within the purview of s 21A of the FPA and may be admitted as evidence on any substantive application under s 6(1) which seeks to disturb the exclusion of Carmelo from the 2006 Will.
5. On the present application, I consider the statements made by Domenica are strong indications pointing against the ultimate success of any substantive application by Carmelo to disturb the 2006 Will.
6. To counter these statements, Carmelo has adduced evidence which seeks to explain his relationship with his mother and father, and their attitude to Carmelo's wife.[30] Section 21A(9) and s 21A(10) permit such evidence to be admitted, in order to contradict a testator's statements or to challenge the credibility of the testator. Section 21A(8) further provides that regard must be had to 'all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise' of such statements.

1. Having regard to the matters which I have just set out, it remains to assess how the discretion in s 7(2) should be exercised and whether an extension of time should be granted.
2. I should clarify that the only issue to determine today is the extension of time issue and, in this regard, it must be remembered that the proceeding has been conducted on the basis of affidavit evidence without any application being made by either set of parties to cross-examine any of the deponents. As one might expect, there remain factual controversies on the affidavits which cannot conclusively be resolved by the court in the context of this proceeding.
3. The positions developed by each side, both by counsel today and in the written submissions, demonstrate that the extension of time question is ultimately a finely balanced one.
4. First, I consider the delay of some 10 months is significant and requires a cogent explanation. The plaintiff recognises as much and has filed affidavit material which seeks to provide an explanation and give context to the delay.
5. Second, I consider Carmelo has provided a proper explanation for the majority of the delay, when the communications with his brother are examined. I am particularly concerned at this stage that the executor (and sole beneficiary) refrained from providing a clear statement to his brother at any juncture before November 2024 that he was excluded from the 2006 Will.
6. That said, I recognise there is a disputed factual issue as to whether Carmelo already knew he had been excluded from the 2006 Will. As I have said, I cannot resolve that question on the materials presently before the court. Accepting, for the present application, that Carmelo did not know he had been excluded, and that Carmelo believed he was a beneficiary named in the 2006 Will and did not appreciate that he had been excluded until the November 2024 meeting, the delay on his part until November 2024 is explicable, as is much of the delay thereafter, given the need to locate a suitable lawyer, take legal advice, communicate with his brother's lawyers, and then make the decision to initiate this application.
7. In these circumstances, it is open to conclude that, had Carmelo been informed in a timely and clear manner by his brother that he had been excluded, Carmelo may well have filed within the six month window allowed for by the legislation. The conduct of the joint executor and sole beneficiary, characterised in the manner I have earlier described, weighs heavily in my view in favour of the extension which is sought by Carmelo.
8. Third, there is also some prejudice to Antonino, in the sense the estate has been distributed and he has received funds from the estate which, in the ordinary course, he might expect not to be disturbed once the time period in s 7(2) of the FPA expired. I consider this point carries less weight here given Antonino is the joint executor and given the communications he was having with his brother prior to the distribution of the estate.
9. Fourth, I recognise that there would be considerable prejudice to Carmelo if an extension of time is not granted, as it would effectively deny him any pathway to remedy his grievance.
10. Fifth, it remains the case, in my view, that Carmelo has an arguable case for relief under s 6(1) of the FPA, particularly given his meagre financial position and the reality that the 2006 Will entirely excluded him as a beneficiary. I have given careful thought in this regard to the effect of the statements made by Domenica, which clearly explain her rationale for excluding Carmelo from the 2006 Will. The court would typically give significant respect to those statements. These statements weigh against the force of Carmelo's proposed application under s 6(1), but I recognise Carmelo has put on evidence which seeks to explain and undermine the statements made by his mother.
11. On the material before the court, other than for the statements made by the deceased, Carmelo would have a good case under s 6(1) of the FPA for some relief. As matters stand, when all the available evidence presently before the court is taken into account, it can at least be said he has an arguable case for relief, a point conceded by the defendants for the purposes of this application.
12. I am accordingly of the view, taking all these matters into consideration, and recognising the application is finely balanced, that the application for an extension of time should be granted.

1. At the conclusion of the hearing, after delivering a summary of my reasons, I heard from counsel and then made the orders set out below. As to the costs of the present proceedings, I indicated to counsel that my provisional view was that the costs of the proceeding should be in the cause of any substantive application given the finely balanced nature of the extension of time application, and neither counsel sought to persuade me against such an order.
   1. The plaintiff's application pursuant to s 7(2)(b) of the Family Provision Act 1972 (WA) (the Act) for leave to file an application for provision pursuant to s 6(1) and s 7(1)(a) of the Act out of time is granted, and the plaintiff has leave to file such an application out of time (the Substantive Application).
   2. The Substantive Application must be filed by 4.00pm on Thursday, 23 April 2026.
   3. The parties have leave to refer to and rely upon the affidavits filed in this proceedings for the purposes of the Substantive Application.[31]
   4. The costs of this proceeding be in the cause of the Substantive Application.
   5. The parties have liberty to apply on the question of the costs of this proceeding.[32]

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Domenica executes her final will leaving her entire estate to Antonino - this is the 2006 Will.

Statement of wishes made by Domenica and her husband.

Carmelo raises the subject of Domenica's will with Antonino.

Carmelo asks Antonino about the status of the probate process.

Carmelo asks Antonino about the status of the probate process and asks for a copy of the 2006 Will.

Probate granted to Antonino and Gloria as joint executors.

Carmelo asks Antonino about the status of the probate process.

The principal asset of the estate is sold and settles (being the residential property in Westminster).

Antonino informs Carmelo by text message that probate has concluded in response to a query from Carmelo.

Antonino informs Carmelo by text message that he is waiting for ATO to provide the final return on the estate, and refers to property in Sicily.

Expiry of the six-month deadline for filing an application under s 6(1) of the FPA.

Carmelo asks Antonino if they could arrange a time to meet to discuss the probate process.

10 month delay between 31 July 2024 and 27 May 2025

Carmelo asks Antonino, by text message, for update on the probate process. Antonino responds that there is a delay with the ATO of two months.

Carmelo sends text message to Antonino to delay meeting and asks for copy of the 2006 Will.

Proposed meeting between Carmelo and Antonino is rescheduled by Antonino.

Meeting between Carmelo and Antonino at which Antonino informs Carmelo he is not a beneficiary under the 2006 Will.

Carmelo obtains a copy of the Grant of Probate from the Supreme Court.

Carmelo consults a solicitor and is informed of the six month limitation period under the FPA and becomes aware he will need to seek an extension of time.

Carmelo has his first appointment with his current solicitors.

Carmelo's solicitors exchange without prejudice correspondence with Antonino's solicitors.

Carmelo decides to make the application for an extension of time.

Carmelo files proceedings under s 7(2) of the FPA seeking an extension of time.

[1] Plaintiff's submissions dated 24 November 2025 (PS); and defendant's submissions dated 1 December 2025 (DS).

[2] First Antonino Affidavit [1] and Attachment AAG1.

[3] First Antonino Affidavit Attachment AAG2.

[4] First Carmelo Affidavit [97] - [103]; First Antonino Affidavit [12].

[8] Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 [126] (White J). See PS [50].

[9] Charlwood v Charlwood [2017] NSWSC 1033 [108] (Hallen J); Cooper v Dungan (1976) 50 ALJR 539, 542 (Stephen J). See PS [51].

[10] Morgan-Roberts v The Public Trustee [2026] WASC 65.

[11] Clayton v Aust (1993) 9 WAR 364, 366 - 377 (Malcolm CJ). See also Re Salmon (Dec) [1981] 1 Ch 170, 174 - 175 (Megarry VC).

[12] Wheatley v Wheatley [2018] WASCA 34 [54] - [63] (Martin CJ, Buss P and Murphy JA).

[13] See PS [13]-[22]; DS [22]-[30].

[15] See PS [7]-[9]; DS [11], [31]-[34].

[16] See PS [73]-[77]; DS [40]-[46].

[21] First Carmelo Affidavit [10] - [15].

[22] First Carmelo Affidavit [16] - [17].

[23] First Carmelo Affidavit, pg 30 - 31.

[25] But see the obiter observations of E M Heenan J (with whom McLure J agreed) in Young v Kestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190, further considered by Master Newnes (as his Honour then was) in Pugh v Delgado [2006] WASC 267.

[27] Plummer & Anor v Montgomery [2023] NSWSC 175 [42] - [48] (Hallen J) (Plummer).

[28] Plummer [42] - [48] (Hallen J).

[29] Hughes v National Trustees, Executors & Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 [7] (Barwick CJ).

[30] See, for example, the First Carmelo Affidavit [54] - [66] and [71] - [81].

[31] Recognising, as counsel for the defendants noted, the need for that evidence to be supplemented by the parties.

[32] To guard against the possibility that no substantive proceedings are in fact filed by Carmelo.