JAZWINSKI -v- JAZWINSKI [2026] WASC 129 (13 April 2026)

(a) two affidavits sworn and filed by him on 29 October 2024, which I will refer to as the First Paul Jazwinski Affidavit and the Second Paul Jazwinski Affidavit;

(b) further affidavits sworn and filed by him on 17 February 2025 (Third Paul Jazwinski Affidavit) and 9 July 2025 (Fourth Paul Jazwinski Affidavit);

(c) an affidavit of his wife, Laura Jane Jazwinski, sworn and filed on 5 March 2025 (Laura Jazwinski Affidavit);

(d) an outline of submissions filed on 29 October 2024; and

(e) a further outline of submissions filed on 9 July 2025.

1. There were some objections to Paul's evidence. Ultimately, his affidavits were read except for:

(a) paragraph 6 and the last sentence of paragraph 30 of the Second Paul Jazwinski Affidavit; and

(b) the last sentence of paragraph 29 of the Fourth Paul Jazwinski Affidavit.

1. In opposition to the Application, Mark relies on his affidavits sworn and filed on 26 March 2025 (First Mark Jazwinski Affidavit) and 11 August 2025 (Second Mark Jazwinski Affidavit) and an outline of submissions filed on 18 August 2025.

1. Sections 7(2) and (3) of the Act provide:

(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 principles to be applied in determining an application to extend time under s 7(2)(b) of the Act are well established and are not in dispute.
2. The Full Court in Clayton v Aust,[2] set out non‑exhaustive guidelines to be applied in considering whether the Court should exercise its discretion to extend the time to bring a family provision application.[3] The statement of the guidelines was summarised by the Court of Appeal in Wheatley v Wheatley[4] as follows:
   1. The discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is to be exercised judicially and in accordance with what is just and proper.
   2. The onus lies on the applicant to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits. The time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by the rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus no triviality. The applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time.
   3. It is material to consider how promptly and in what circumstances the applicant seeks the permission of the court after the time limit has expired. The whole of the circumstances must be looked at including the reasons for delay and the promptitude with which the applicant gave warning to the defendants of the proposed application.
   4. If negotiations have been commenced within the time limit, and time has run out while the negotiations are proceeding, this is likely to encourage the court to extend the time. Negotiations commenced after the time limit might also aid the applicant, at any rate if the defendants have not, in relation to those negotiations, taken the point that time has expired.
   5. It is relevant to consider whether or not the estate had been distributed before a claim under the Act had been made or notified. For most people, there is a real difference between 'the bird in the hand and the bird in the bush'. In addition, of course, the beneficiaries are more likely to have changed their position in reliance on the benefaction if they have actually received it than if it lies merely in prospect.
   6. It is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody.

1. In Andre v Perpetual Trustees,[5] the Court of Appeal stated:
   1. The time limit provided by s 7(2)(a) is there for obvious reasons. There is a public interest in the prompt administration of estates. Six months is ordinarily more than long enough for a potential claimant to decide whether to bring an application for provision under s 6(1) of the Act. After the lapse of that time, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to the will.
2. An applicant is required to demonstrate they have an arguable case that is 'fit to go to trial'. The test has been described as similar to that adopted when considering whether a defendant on a summary judgment application ought to have leave to defend in proceedings for summary judgment.[6]
3. If the Court is satisfied that an applicant has an arguable case, the strength of the case may be an important factor to be considered in the overall exercise of the Court's discretion as to whether leave should be granted.[7] However, it will often be difficult for the Court to undertake a more precise assessment of the merits other than to form an overall conclusion that the case is arguable because the Court is not in a position to resolve contested evidentiary matters concerning the underlying merits of a claim.[8]
4. As stated in Wheatley,[9] where the underlying material facts are uncontested or admissions are made, the Court may be able to assess the strength of an applicant's case with some degree of confidence. However, absent such matters, and where the applicant's own evidence is not inherently implausible or contrary to undisputed facts and points to the existence of an arguable claim, the Court can do no more than conclude the applicant has demonstrated an arguable case on the merits.
5. In the written submissions filed on Paul's behalf, reference was made to Peterson v Best,[10] in which Lundberg J granted leave to bring an application for provision under the Act out of time. The submissions rely on similarities between the facts and circumstances of that case and those in this case. There are also a number of differences between each case, as outlined in Mark's written submissions. It is not necessary that I set them out. There will often be cases that have some common features. Ultimately, each case must be considered based on its own particular facts and circumstances.

1. The following facts, which I accept for the purpose of the Application, are derived from the uncontested evidence in the affidavits filed.

1. The deceased was born in Poland in 1947. He married Paul and Peter's mother, Rosa Marie Krywko in 1976. The deceased and Rosa had two children, Peter who was born in 1978 and Paul who was born in 1980.[11]

Paul's relationship with the deceased and personal circumstances

1. The deceased and Rosa divorced in about 1985. Paul deposes that he lived with his mother and father and his brother, Peter, until he was 5 years old. After their parents' divorce, Peter and Paul lived with their mother. Paul deposes that he spent his childhood without his father and was estranged from him, believing his father did not want any relationship with him. He says he had no contact from his father and that his father did not pay any maintenance or child support.[12]
2. Paul moved out of his mother's home and has not lived with her since 2001. Paul deposes that his relationship with Peter was amicable until 2002 and, other than when they both attended their grandparents' funerals in about 2010 and Paul attended Peter's wedding in 2013, they had not had any contact until Peter contacted him in September 2024 and told him about their father's death.[13]
3. Paul married his wife, Laura, in 2012. They have two children together who, at the time of the Second Paul Jazwinski Affidavit, were aged 8 and 6 years.[14]
4. Paul works full time and deposes to his financial circumstances,[15] which I consider in further detail later in these reasons. He and Laura depose that Laura works part‑time as a nurse and cares for the children. They also refer to Laura having suffered from medical conditions and, in general terms, to her ongoing medical needs and expenses.[16]
5. In the Fourth Paul Jazwinski Affidavit, Paul deposes that his estrangement from the deceased was not due to any action, fault or disreputable conduct on Paul's part, but due to the relationship between his mother and father, and his mother having urged him not to contact his father for the reasons he deposes to.[17] It is not necessary that I repeat them in these reasons.
6. Paul states that he believes his father owed him a moral duty to make financial provision for him as his personal and financial circumstances are modest. He also says he has concerns about his wife's medical condition which may affect her future earning capacity and their family's financial position.[18]

Mark's relationship with the deceased and personal circumstances

1. Mark was born in 1988 and is the son of the deceased and Laudia Tracz, who was born in Germany and moved to Australia when she was 4 years old. The deceased and Laudia lived together and ran an engineering and fabrication business from the property in Welshpool, which forms part of the Estate.[19]
2. Mark lived with his parents between the Welshpool property and another property in Walliston. The deceased and Laudia separated in about 1996, when Mark was 8 years old. Mark lived between his parents' houses and, as he got older, spent more time with his father at the workshop in Welshpool, and worked assisting his father at the workshop.[20]
3. In 2003, Mark left high school in Year 10. He studied at TAFE three and a half days a week and worked at his father's workshop. He was not paid for the work he did in his father's business. Mark deposes that his father often said to him words to the effect that 'you will get it all when I die', which Mark understood to refer to the business and their Welshpool home. He says that, based on this, he undertook responsibility to work in the business and help his father whenever he asked. He sets out in the First Mark Jazwinski Affidavit, his responsibilities and the work he undertook at the workshop, which he continued to do alongside other jobs he was employed in from the age of 19 years.[21]
4. From about 2011 until February 2024, Mark worked full time as a network systems administrator. He continued to help the deceased with jobs at the workshop until shortly before the deceased passed away.[22]
5. Mark deposes that he saw Paul and Peter for the first time in about 2001 at the funeral of his father's mother, but they did not speak to Mark or their father. Mark says that his father did not have contact with Paul and Peter while he was living with him. He says that he first met Peter in 2016, when Peter visited the Welshpool property and that Peter had contact with his father from about 2017 to 2020.[23]
6. Mark began a relationship with his partner, Denise, in 2018 and moved in with her. They have two children together, who were aged 4 and 3 years at the time of the First Mark Jazwinski Affidavit. Mark also has a child from a previous relationship.[24]
7. Mark and Denise spent weekends at the workshop assisting the deceased. From 2022, Mark continued to see the deceased at least once a week and assist him in the workshop. At that time, the deceased was not able to do much work but would direct Mark. By 2023, the deceased's health had deteriorated. Mark, Denise and Peter cared for him, and Mark took time off from his network systems administrator role to work in and maintain the workshop and machinery. The deceased died on 28 July 2023.[25]

1. The Will is in simple terms running to just one page in length. It is hand‑written in Polish and subsequently translated to English. The Will is dated 15 May 2023 and appoints Mark as executor of the Will.[26]
2. It is common ground that the deceased gave the whole of his Estate to Mark and made no provision in the Will for Paul, or anyone else.[27]
3. Mark arranged the deceased's funeral, which took place on 24 August 2023. He included Peter in making the funeral arrangements. Peter had moved in to live with the deceased in April 2023 shortly before he died, following Peter's separation from his former partner.[28]
4. Mark placed a death notice in the West Australian Newspaper, which provided details of the funeral. He had only seen Paul at the funeral they attended in 2001. Mark says that Paul did not have anything to do with the deceased, and he did not have any contact details for him.[29] Probate was granted to Mark on 10 November 2023.[30]
5. As at the date of the deceased's death, the Estate (before distribution) had an estimated net value of $2,781,171, comprised of assets of $3,002,169 and liabilities of $220,998. The assets of the Estate included real property in Redcliffe and Welshpool, cash at bank of $273,000 and otherwise as set out in the statement of assets and liabilities.[31]
6. An updated estimate of the Estate's assets and liabilities (before distribution) following accounting advice in relation to prospective capital gains tax liabilities in relation to the Redcliffe and Welshpool properties estimates the net value of the Estate as $2,065,596.[32]
7. The estimated value of the Redcliffe property is $850,000 with a prospective capital gains tax liability of $329,000. The estimated value of the Welshpool property is $1,825,000 with a prospective capital gains tax liability of $386,575. The estimated value does not account for unascertained tax debts or capital gains tax liability in relation to shares of $8,169.[33]
8. On 18 January 2024, before notice of Paul's claim and of the Application, the Welshpool property was distributed to Mark as sole beneficiary of the Estate,[34] and on 9 October 2024, the Redcliffe property was distributed to Mark.[35] By the time of Application, all remaining assets in the Estate had been distributed, other than an estimated $191 of the cash in bank.[36]

1. As noted, Paul works full time and his wife, Laura, works part‑time as a nurse and cares for the children. Laura's family live in Scotland so they have no local support from immediate family.[37] They each depose to their financial circumstances by reference to a statement of financial circumstances (Financial Statement) included in their respective affidavits.[38]
2. Paul and Laura own their home as joint tenants. Its estimated value at the time of the deceased's death was $1,100,000. Paul and Laura both deposed at the date of their relevant affidavits that there had been no material change to their financial circumstances since that date.[39]
3. At the date of the Third Paul Jazwinski Affidavit, 17 February 2025, there was a mortgage on the property securing a loan of $580,000,[40] which as at 20 January 2025 had an outstanding balance of approximately $574,000.[41] At that time, Paul and Laura had combined savings of about $85,000, including $81,000 in a mortgage offset account. Paul and Laura record in their Financial Statements superannuation of approximately $136,000 and $241,134, respectively.[42]
4. At the date of the deceased's death and the Second Paul Jazwinski Affidavit, Paul's annual income was approximately $104,000 per year, and he worked overtime shifts to increase his salary.[43] At the time of the deceased's death and the Laura Jazwinski Affidavit, Laura's annual gross salary was approximately $81,000.[44] Their total household income was $185,000 per year.
5. Paul has included all of the household expenses in his Financial Statement as an annual amount. They total $114,174.[45] Laura's expenses, which relate to her car and nursing registration and union fees amount to $6,302 per year.[46]
6. Paul and Laura both depose to Laura having suffered from medical conditions. It is not necessary that I set out the detail of Laura's medical conditions in these reasons. Paul and the children are in good health.[47]
7. Paul and Laura both depose, in general terms, to Laura having ongoing medical needs and expenses, which Laura says are paid by Paul and Paul says he is unable to afford to fund going forward.[48] They do not elaborate as to what or how much those expenses are, or as to how much any future medical expenses are estimated to be. However, Paul's statement of financial circumstances refers to Laura's quarterly medical check‑ups and scans totalling $1,200 per year and a global amount of $2,400 per year for 'Chemist/Pharmaceutical', which is stated to include Laura's monthly therapy.[49]

1. Mark's financial position, as deposed to at the date of the First Mark Jazwinski Affidavit, 26 March 2025, as updated in the Second Mark Jazwinski Affidavit is as follows.[50]
2. Mark resigned from his full‑time job in February 2024 to look after the children, as Denise was working full time, and to focus on organising the Redcliffe property and the workshop at the Welshpool property, including clearing out materials in the workshop, rebuilding and renovating the workshop and repairing a unit in the back of the workshop. He did this feeling financially secure because of his inheritance from the Estate.[51]
3. Mark and his family live in a property in High Wycombe, which is owned by Mark's partner, Denise. It is valued at $550,000, and both Mark and Denise are co‑borrowers on the home loan. As at 25 March 2025, Mark and Denise have a combined mortgage of $410,000. They have re‑drawn on the mortgage to cover daily expenses, including expenses for the Welshpool and Redcliffe properties.[52]
4. Mark records that he owns shares valued at $120,000, which he inherited from his mother, and has superannuation of $90,000. Together, Mark and Denise have combined savings of approximately $3,000.[53]
5. Mark's current income source is from share dividends. His total annual income after tax is $2,640 and Denise's is $89,000, resulting in a combined annual income of $91,640. Together, they have yearly expenses of $152,700, amounting to a combined negative net income of $61,060 per annum.[54]
6. Mark deposes that the Redcliffe property has been rented out since November 2024.[55] There is no evidence as to the rental received. Mark deposes to expenses associated with the Welshpool property and the Redcliffe property.[56] However, there is no evidence as to what and how much those expenses are.
7. As recorded in Mark and Denise's combined statement of income and expenses, annexed to the First Mark Jazwinski Affidavit, Mark and Denise's combined income does not cover their daily living expenses and loan payments on their High Wycombe home. Mark has also incurred legal fees in respect of this Application, as executor of the Estate, which have not been able to be reimbursed from the Estate.[57]
8. Mark is presently unemployed, having resigned from his job, as outlined.[58] His intention is to continue his late father's business from the Welshpool property, drawing on his training and knowledge received from the deceased and working with him during his life.[59]

Should leave be granted? The nature, extent and reasons for delay

1. As noted, an application under the Act for provision without leave of the Court must be filed within six months from the date of the grant of probate. Probate of the Will was granted to Mark on 10 November 2023. The Application was filed approximately five and a half months out of time, on 29 October 2024.
2. Paul states that he could not bring a claim under the Act within six months of probate being granted because he was not aware of his father's death until after that time. Paul's evidence in relation to the delay in bringing an application is largely uncontested, from which I make the following findings in relation to the nature, extent and reasons for the delay.
3. Paul was not informed by Mark, Rosa or Peter of the deceased's death when he died.[60] He became aware of his father's death on 12 September 2024 when Peter contacted him whilst he (Paul) was on holiday in Scotland with his family.[61]
4. Following Paul's conversation with Peter while Paul was in Scotland, Peter told him that their father did not have a will, and his Estate would need to be sorted between the three children via the Public Trustee. Peter provided Paul with details of a lawyer who Peter had spoken to for legal assistance, Ian Blatchford.[62]
5. At that time, Paul had no knowledge of the Will. On his return from Scotland on 1 October 2024, he contacted Peter to arrange a face‑to‑face discussion with him to get a better understanding of the deceased's passing and the Estate.[63]
6. Paul contacted Mr Blatchford on 3 October 2024. He was not aware at that time that probate had been granted to Mark as executor of the Estate.[64]
7. Paul met with Peter on 4 October 2024 to look at the locations of the deceased's two properties in Welshpool and Redcliffe.[65]
8. Paul deposes that, on 11 October 2024, Mr Blatchford wrote a letter to Mark and Denise requesting documents and details relating to the Estate. He does not attach a copy of the letter to any of his affidavits. Paul says that he also undertook online property searches to enquire whether there were other properties held under the deceased's name.[66]
9. Paul visited the Landgate office in Perth on 16 October 2024 and found that both of the deceased's properties in Welshpool and Redcliffe had been registered under Mark's name on 18 January 2024 'as Executor of Will of the late Zygmunt Jazwinski'. Paul contacted Mr Blatchford on the same day, 16 October 2024, and provided him with copies of the title searches.[67]
10. Paul was advised by Mr Blatchford on 22 October 2024 to seek separate legal advice to avoid a conflict of interest as he was taking instructions from Peter. He referred Paul to another lawyer, Tim Pepper, who Paul contacted on 22 October 2024. He instructed Mr Pepper to apply for leave to file an application under the Act out of time, on 23 October 2024.[68] The Application was filed six days later, on 29 October 2024.
11. There is no evidence of negotiations as a matter that added to the delay in the Application being made. It is not apparent on the evidence before the Court that any notice of an application for provision was given before the Application was filed.
12. In the Fourth Paul Jazwinski Affidavit, Paul states that he believes his siblings were aware of his existence. He says that Peter showed him a video Mark had compiled of the funeral, which included a photo taken at Peter's wedding showing Peter and Paul. However, they did not inform Paul of their father's death at the time.[69] He only learned of it from Peter in September 2024, as outlined.
13. I do not accept Paul's suggestion that Mark, in his capacity as executor, had any legal obligation to inform Paul of the deceased's passing and that by not informing Paul of their father's death, Mark should be deprived of the protection afforded to him by the time limit prescribed by the Act.
14. Mark was not under any such obligation. Nor was Mark aware of Paul's whereabouts. As far as Mark was concerned, Paul had had no contact with the deceased or been involved in his life in any way. As submitted on Mark's behalf, s 20(2) of the Act expressly provides that, for the purposes of the administration or distribution of an estate, no executor or administrator is under any obligation to inquire as to the existence of any person who could claim under the Act.
15. Ultimately, although there has been a delay in bringing a claim, I am satisfied that, upon learning of his father's death in September 2024, Paul acted quickly upon his return to Australia to obtain legal advice and make this Application. In the circumstances, the delay is not a matter that I consider would prevent leave being granted to file an application for provision under the Act out of time.

1. As at the date of the deceased's death, the Estate (before distribution) had an estimated net value of $2,781,171, comprised of assets of $3,002,169 and liabilities of $220,998 as set out in the statement of assets and liabilities annexed to the First Mark Jazwinski Affidavit.[70]
2. As outlined, an updated estimate of the Estate's assets and liabilities (before distribution) following accounting advice in relation to prospective capital gains tax liabilities in relation to the Redcliffe and Welshpool properties estimates the net value of the Estate of approximately $2 million.[71]
3. As has also been outlined, other than a nominal amount of cash at bank, the whole of the Estate including the Welshpool and Redcliffe properties had been distributed to Mark, as sole beneficiary of the Estate, by the time the Application was filed.
4. The fact that an estate has been finally distributed is a matter that may weigh against granting leave. Although, as submitted on behalf of Paul, and observed in Wheatley,[72] the distribution of an estate is not a legal impediment to a claim under the Act, as provided by s 8 of the Act and s 65 of the Trustees Act 1962 (WA).[73] However, each case must be considered on its own circumstances and merits.
5. Section 8 of the Act provides:
   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. Section 9 of the Act provides:
   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 of the Trustees Act, provides, relevantly:
   1. Deceased estate, claims made after distribution of, tracing, following assets

(1) This 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.

(2) Where this section applies, the Court may make an order on a claim, being -

(a) an application under the Family Provision Act 1972;

any of which application or claims are, hereinafter in this section, called the claim.

(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.

...

(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;

...

(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.

1. In considering s 65 of the Trustees Act in Drake v Bradshaw,[74] the Court of Appeal stated:

[52] It is axiomatic that an order in relation to distributed assets of the estate will not be made if the court is of the opinion that it would be inequitable to do so in light of the matters referred to in s 65 of the Trustees Act. Accordingly, the respondent to an application for an extension of time, at least where there is a large estate, ordinarily could not successfully invoke the prospect of inequity as a basis, in and of itself, for refusing an extension of time.

1. In the Drake Appeal Decision, the Court observed that the distribution of the estate, and the consequential need to examine issues of potential inequity would mean that the litigation would be more complex and give rise to greater uncertainties than would otherwise be the case. It expressed that those matters and the costs of investigating them may be of significance in any assessment of the justice of the case in relation to extending time to bring an application under the Act, particularly where, as in that case, the estate to which the applicant had an arguable claim was relatively small.[75]
2. Prejudice arising from the uncertainty which the proposed proceedings will create as to the beneficiary's entitlement to retain the distribution they have received, and other matters such as bearing costs of defending a claim without recourse to an undistributed estate may also be relevant considerations.[76]
3. Whilst Mark acknowledges that the distribution of the Estate is not an absolute bar to leave being granted, he submits it is a matter that weighs significantly against the grant of an extension of time. It was submitted on his behalf, in effect, that leave should not be granted in the circumstances where, in reliance on his inheritance and the Estate having been distributed to him, Mark has made life changing decisions, changed his position and incurred expenses.
4. Mark's evidence is that, in reliance on receiving the inheritance from his father, he resigned from his full‑time employment in February 2024 to look after the children and focus on dealing with the inherited Estate properties. As a result, he is unemployed and is reliant on the inheritance for his and his family's living expenses and the expenses that have accrued and continue to accrue in respect of the properties he received from the Estate.[77]
5. There is no suggestion that the Estate properties, which have been distributed to Mark, have been sold or encumbered. Mark says that the Redcliffe property is rented out and that he intends to continue his late father's business from the Welshpool property, although he does not elaborate in relation to either.
6. As noted, the distribution of the Estate is not a matter that necessarily precludes a grant of leave to file an application for provision under the Act out of time. However, I accept Mark's submission that, should leave be granted, the fact that the Estate has been distributed would increase the complexity, potential costs and uncertainty of any litigation which, in his capacity as executor he would be obliged to participate in.[78] He would also be unable to exercise his right of indemnity from the assets of the Estate for legal costs in carrying out his duties.
7. Mark also foreshadows a potential constructive trust claim in relation to promises made to him by the deceased in relation to the Welshpool property and business. Given the terms of the Will and that the Estate has been distributed to Mark, it has not been necessary for such claim to be brought. However, if a claim is made against the Estate assets by Paul, it appears there is likely to be a dispute as to whether the Welshpool property and business assets form part of the Estate or were held on constructive trust for Mark. This is an issue that may further complicate any substantive proceedings and increase legal costs.
8. These matters, whether it would be appropriate for an order to be made under s 65 of the Trustees Act, and whether Mark would be entitled to benefit from the relief afforded by s 65(8), are matters that are likely to increase the complexity and uncertainty of the outcome of a claim for provision under the Act. If the value of the Estate was especially modest, these are matters that I consider would weigh against a grant of leave. However, the value of the Estate in this case is approximately $2 million.
9. In the circumstances of this case and on the evidence before the Court for the purpose of the Application, I do not consider that those matters and the fact the Estate has been distributed prevent leave being granted.
10. As to any inequity that may result from an order for provision, that is a matter that should, in my view, be determined in any substantive application in light of all the evidence, if Paul establishes that he has an arguable case and leave is granted.

1. I turn to consider whether Paul has an arguable case - a case that would be fit to go to trial.
2. The legal principles relevant to an application under s 6(1) of the Act are well established. They are set out in Lemon v Mead[79] and Musasghi v Gebremariam,[80] and more recently summarised in Keremestevski v McLoed.[81]
3. In general terms, as Buss P stated in Lemon,[82] s 6(1) of the Act requires the Court to carry out a two‑stage process. This requires consideration of two questions.
4. The first stage, which has been described as the 'jurisdictional question', requires the Court to determine as a question of fact whether, at the time of the deceased's death, a claimant has been left without adequate provision for their proper maintenance, support, education or advancement in life, as applicable.[83]
5. If the Court is satisfied of that first stage and the jurisdictional question is determined in the claimant's favour, the Court may then consider what provision should be made from the deceased's estate for the claimant. That second question involves an exercise of the Court's discretion and is to be determined by reference to the circumstances as they exist at the date of the order.[84]
6. As observed by Smith J in McGeough v Blatchford,[85] unless the answer to the first stage and jurisdictional question is yes, there is no jurisdiction to make an order by considering the second question.
7. The word 'proper' in s 6(1) of the Act connotes something different from the word 'adequate'.[86] 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard of maintenance, support, education or advancement.[87]
8. When determining whether adequate provision has been made for the proper maintenance, support, education or advancement in life of a claimant, what is 'adequate' financial provision is to be assessed by reference to matters such as the size of the estate, the need and moral claim of the claimant, and the need and moral claim of other persons who have a legitimate claim upon the bounty of the deceased.[88]
9. As submitted on Mark's behalf and observed by Solomon J in Boscolo v Australian Unity Trustees Limited,[89] it is well established that if an applicant under the Act cannot demonstrate any need for provision, then a claim otherwise based on the assertion of a moral claim or entitlement cannot succeed. The object of the Act is not to effect equality or some broad notion of fairness. As Solomon J stated, '[t]he statutory power is directed to the redistribution of the gifts flowing from the estate on the basis of a moral duty to fulfil an unsatisfied need'.[90]
10. The principles to be applied when a claim is made by an adult child were summarised by Hallen J in Wheat v Wisbey,[91] and have been adopted in this Court, including by Tottle J in Lysaght v Lysaght,[92] Smith J in McGeough[93] and Solomon J in Boscolo.[94]
11. Attention was also drawn on Mark's behalf, to Pontifical Society for the Propagation of the Faith v Scales,[95] in which Dixon CJ stated:

The 'proper' maintenance and support of a son claiming statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.

1. Time, community views and standards have moved on since 1962, when Pontifical Society v Scales was decided, and a person's sex is no longer a matter that would necessarily bear on the question of proper maintenance and support of an adult child.
2. However, having regard to the principles otherwise referred to in that decision and in subsequent decisions, as summarised in Wheat v Wisbey, there is no suggestion that Paul was in any way dependent on or maintained or supported by the deceased. At the time of the deceased's death, Paul was 45 years old. As has been referred to, Paul and the deceased were estranged since Paul was about 5 years old, around the time of his parents' divorce in 1985. Since that time, Paul has had no contact with the deceased, and they were not involved in each other's lives.
3. It is common ground that no provision is made in the Will for Paul. It was submitted against Paul that he has not demonstrated a 'need' for provision for his proper maintenance, support and advancement in life, or that the deceased had any moral duty to make provision for him. It was submitted that Paul's case is weak because of his lack of financial need and the considerable period of estrangement between Paul and the deceased.
4. While the strength or weakness of a potential claim may be a relevant consideration in the exercise of the overall discretion as to whether leave should be granted, I must first determine whether Paul has an arguable claim.
5. For the reasons that follow, although any claim for provision commenced by Paul would not be straightforward and would have its challenges, I consider that his claim is arguable.
6. At the date of the deceased's death and at the time of their affidavits, Paul and Laura's combined annual income was $185,000, which is sufficient to cover their household expenses with a surplus. They jointly own their family home, which (at the time of their affidavits) had an estimated value of $1,100,000 with a mortgage securing a loan balance of approximately $574,000. They also had savings of $85,000, including an amount of $81,000 in an account offsetting the mortgage interest. They also each have superannuation in amounts of approximately $136,000 and $241,134.
7. Although Paul and Laura enjoy a relatively comfortable overall financial position, adequate provision is not limited to provision for the necessaries of life. It has been held that it may extend to provision over and above a mere sufficiency of means upon which to live, to provision which would enable a potential beneficiary to improve their prospects in life,[96] and for the financial exigencies of life.[97]
8. Paul and Laura refer to Laura's medical conditions, to ongoing and possible future medical expenses, and to a potential reduction in their household income if Laura is unable to work, although the evidence relating to such matters is given at a high level.
9. The mere fact of estrangement between a parent and child should not ordinarily result, on its own, in the child being unable to satisfy the jurisdictional question.[98] However, the fact that Paul had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships during those years, is a relevant consideration.[99]
10. The evidence presently before the Court indicates that the relationship between Paul and his late father was severed when Paul was 5 years old. Since at least that time, the deceased did not provide Paul with financial or emotional support.
11. I accept, for the purpose of the Application, that the estrangement of Paul and his late father was not necessarily Paul's fault but was a result of the nature of the relationship between his parents. Regardless of the cause or fault of the severance of the relationship between Paul and the deceased, it may be that any moral duty of the deceased to make provision for Paul has been extinguished by the long‑standing severance.
12. Paul's estrangement from the deceased is a matter that I consider may undermine Paul's contention that the deceased had a moral obligation to provide for his maintenance, support and advancement in life. However, the reasons for the estrangement, the effect of such, and whether it operates to extinguish or reduce any moral obligation of the deceased to provide for Paul[100] are matters that should be determined, having regard to all the facts and circumstances, in any substantive application.
13. Although it has not been directly suggested in this case that any moral obligation arises because of any poor conduct of the deceased towards Paul, I note for completeness that the Court will not award provision under the Act for any such conduct or for any failed moral duty to be a good and responsible parent of a child.[101]
14. As Palmer J observed in Simon v Permanent Trustee Co Ltd,[102] in respect of corresponding provisions of the New South Wales legislation:

The Act is concerned only with the provision out of the estate of the deceased for the financial needs of those who had a claim on the testator's testamentary recognition. It is not the policy of the Act to console with legacies those who, while in no financial need, feel that the testator did not love them enough or feel that they should have a monetary solace for the loss of a loving relationship.

1. In addition to the matters I have referred to, it is likely that the strength of any claim by Paul is further undermined by the competing moral claim of Mark, as a son of the deceased and the sole beneficiary under the Will, which must also be considered in any application in determining what, if any, provision should be made for Paul.
2. The uncontested evidence adduced by Mark indicates that he and the deceased had a close relationship and that the deceased's wishes that Mark receive his Estate were long‑held, dating back to at least 1998.[103] In the circumstances of this case, and where the deceased and Paul had played no part in each other's lives for many years, it is likely that the deceased's freedom of testamentary disposition would be given significant weight.
3. Although a number of matters have been identified that undermine the strength of Paul's claim, I am satisfied that it is arguable. They are matters which give rise to issues that should be tried and determined on all the evidence, tested by cross‑examination, in any substantive proceeding. They are not matters I consider I can or should determine at this preliminary stage.

Would refusal to extend time leave the applicant without redress?

1. It seems likely that a refusal to extend time within which to make a claim would leave Paul without redress. This is a matter that weighs in favour of leave being granted.

1. For these reasons, I am satisfied that Paul's claim for provision, although it may not be particularly strong, is arguable. It is finely balanced, but in the circumstances of this case, and given the size of the Estate, I find that the justice of the case requires that Paul should have leave to file an application under s 6(1) and s 7(1)(c) of the Act out of time.
2. As such, Paul's application for leave is allowed. Given the time that has passed, any application should be brought promptly.
3. I will hear from the parties as to the final form of orders to be made, including the time within which any application is to be filed, and in relation to the costs of the Application. The parties should confer in relation to those matters and, by 20 April 2026:

(a) if agreement is reached, file a memorandum of consent orders; or

(b) if no agreement is reached, each file a minute of their proposed orders.

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

[1] Family Provision Act 1971 (WA) s 7(2)(a).

[2] Clayton v Aust (1993) 9 WAR 364, 366 ‑ 367, referring to Re Salmon (dec'd) [1981] Ch 167 (Re Salmon), 175 ‑ 177 (McGarry VC).

[3] The application in Clayton v Aust was made under s 7(2)(b) of the Inheritance (Family and Dependants Provision) Act 1972 (WA), the predecessor to the Act and in identical terms to the same section of the Act.

[4] Wheatley v Wheatley [2018] WASCA 34 (Wheatley) [56].

[5] Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14 (Andre v Perpetual Trustees) [38] (Steytler P, Pullin & Buss JJA agreeing).

[6] Clayton v Aust (368), referring to Re Dennis (deceased) [1981] 2 All ER 140, 145.

[7] Wheatley [58], referring to Andre v Perpetual Trustees [42] (Steytler P, Pullin & Buss JJA agreeing).

[8] Wheatley [58], citing Clayton v Aust (364 ‑ 370).

[10] Peterson v Best [2024] WASC 264.

[11] First Paul Jazwinski Affidavit [29], [30]; Second Paul Jazwinski Affidavit [9], [10]; First Mark Jazwinski Affidavit [3], [8].

[12] First Paul Jazwinski Affidavit [29], [31] - [33]; Second Paul Jazwinski Affidavit [9], [11] - [15]; Fourth Paul Jazwinski Affidavit [22] - [24].

[13] First Paul Jazwinski Affidavit [9], [12] - [14], [34], [37]; Second Paul Jazwinski Affidavit [13]; Fourth Paul Jazwinski Affidavit [8] - [9].

[14] Second Paul Jazwinski Affidavit [17] - [18].

[15] Second Paul Jazwinski Affidavit [31] - [36], as updated in the Third Paul Jazwinski Affidavit [1] ‑ [4], 'SA1'.

[16] Second Paul Jazwinski Affidavit [20] - [23]; Fourth Paul Jazwinski Affidavit [27]; Laura Jazwinski Affidavit [6] - [10].

[17] Fourth Paul Jazwinski Affidavit [24] - [25].

[18] Fourth Paul Jazwinski Affidavit [27].

[19] First Mark Jazwinski Affidavit [2] - [3], [10] - [12].

[20] First Mark Jazwinski Affidavit [14] - [17], [22], [34].

[21] First Mark Jazwinski Affidavit [23] - [24], [27] - [28], [30], [32] - [33], [35].

[22] First Mark Jazwinski Affidavit [41], [45].

[23] First Mark Jazwinski Affidavit [19] - [20], [43] - [44].

[24] First Mark Jazwinski Affidavit [38], [46] - [47].

[25] First Mark Jazwinski Affidavit [46], [48], [54] - [59], [61] - [62], [64].

[26] See First Mark Jazwinski Affidavit [4], 'MEJ1'.

[27] Second Paul Jazwinski Affidavit [26] - [28], 'A1'; Fourth Paul Jazwinski Affidavit [28]; First Mark Jazwinski Affidavit [4], [76] - [77], 'MEJ1'.

[28] First Mark Jazwinski Affidavit [50] - [51], [65].

[29] First Mark Jazwinski Affidavit [66] - [67]; Second Mark Jazwinski Affidavit [7], 'MEJ7'.

[30] First Paul Jazwinski Affidavit [6], 'A2'; First Mark Jazwinski Affidavit [4], 'MEJ1'.

[31] First Mark Jazwinski Affidavit [79], 'MEJ8'.

[32] Second Mark Jazwinski Affidavit [3], 'MEJ2'.

[33] Second Mark Jazwinski Affidavit [2] - [3], 'MEJ1', 'MEJ2'.

[34] First Mark Jazwinski Affidavit [76]; Second Mark Jazwinski Affidavit [4.1], 'MEJ3'.

[35] First Mark Jazwinski Affidavit [77]; Second Mark Jazwinski Affidavit [4.2], 'MEJ4'.

[36] First Mark Jazwinski Affidavit [78].

[37] Second Paul Jazwinski Affidavit [22].

[38] See Second Paul Jazwinski Affidavit [34], Financial Statement, page 7; Laura Jazwinski Affidavit [13], Financial Statement, page 5.

[39] Second Paul Jazwinski Affidavit [34], Financial Statement, page 7; Laura Jazwinski Affidavit [13], Financial Statement, page 5.

[40] Third Paul Jazwinski Affidavit [1] - [4], 'SA1'.

[41] See Second Mark Jazwinski Affidavit [5], 'MEJ6'.

[42] Second Paul Jazwinski Affidavit [34], Financial Statement, page 7; Laura Jazwinski Affidavit [13], Financial Statement, page 5.

[43] Second Paul Jazwinski Affidavit [32] - [34].

[44] Laura Jazwinski Affidavit [12], 'A1'.

[45] Second Paul Jazwinski Affidavit, [34] - [35], Financial Statement.

[46] Laura Jazwinski Affidavit [13] - [14], Financial Statement.

[47] Second Paul Jazwinski Affidavit [20] - [21], [24]; Laura Jazwinski Affidavit [6] - [8].

[48] Second Paul Jazwinski Affidavit [23]; Laura Jazwinski Affidavit [10].

[49] Second Paul Jazwinski Affidavit [34], Financial Statement, page 6.

[50] See First Mark Jazwinski Affidavit [85] - [89], 'MEJ11'; Second Mark Jazwinski Affidavit [2] - [4], 'MEJ1' ‑ 'MEJ4'.

[51] First Mark Jazwinski Affidavit [70].

[52] First Mark Jazwinski Affidavit [87] - [89], 'MEJ11', Statement of Assets and Liabilities, page 113.

[53] First Mark Jazwinski Affidavit [87], 'MEJ11', Statement of Assets and Liabilities, page 113.

[54] First Mark Jazwinski Affidavit [87], 'MEJ11', Statement of Income and Expenses, page 114.

[55] First Mark Jazwinski Affidavit [82].

[56] First Mark Jazwinski Affidavit [89].

[57] First Mark Jazwinski Affidavit [78], [87], [89], 'MEJ11', Statement of Income and Expenses, page 114.

[58] First Mark Jazwinski Affidavit [85].

[59] Second Mark Jazwinski Affidavit [6].

[60] First Paul Jazwinski Affidavit [11].

[61] First Paul Jazwinski Affidavit [8] - [9].

[62] First Paul Jazwinski Affidavit [16].

[63] First Paul Jazwinski Affidavit [17] - [18].

[64] First Paul Jazwinski Affidavit [19] - [20].

[65] First Paul Jazwinski Affidavit [21].

[66] First Paul Jazwinski Affidavit [22] - [23].

[67] First Paul Jazwinski Affidavit [24] - [26].

[68] First Paul Jazwinski Affidavit [27] - [28].

[69] Fourth Paul Jazwinski Affidavit [20].

[70] First Mark Jazwinski Affidavit [79], 'MEJ8'.

[71] Second Mark Jazwinski Affidavit [3], 'MEJ2'.

[74] Drake v Bradshaw [2018] WASCA 78 (Drake Appeal Decision) [52].

[75] Drake Appeal Decision [53], [61].

[77] First Mark Jazwinski Affidavit [70], [80] - [81], [85], [89].

[78] Referring to Lathwell v Lathwell [2008] WASCA 256 (S) [9].

[79] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 (Lemon) [46] - [83].

[80] Musasghi v Gebremariam [2022] WASCA 37 [107] ‑ [121].

[81] Keremestevski v McLoed [2024] WASCA 12 (Keremestevski) [44] - [50].

[85] McGeough v Blatchford [2019] WASC 454 (McGeough) [20].

[86] Keremestevski [46], referring to Lemon [60] - [61].

[87] Keremestevski [46], referring to Lemon [65].

[88] See McGeough [22], citing Andre v Perpetual Trustees [53] and the authorities applied in that decision; Waddingham v Burke [2015] WASC 65 [63] ‑ [68] (Mitchell J). See also Keremestevski [49].

[89] Boscolo v Australian Unity Trustees Limited [2023] WASC 391 (Boscolo) [160], citing Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [1].

[91] Wheat v Wisbey [2013] NSWSC 537 [128].

[92] Lysaght v Lysaght [2018] WASC 88 (Lysaght) [55] (Tottle J).

[95] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 (Pontifical Society v Scales), 19.

[96] Lysaght [50], citing Vigolo v Bostin [115] (Callinan & Heydon JJ).

[98] See Lysaght [58], citing to Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 [110] (Ipp JA).

[99] Lysaght [61], citing to Keep v Bourke [2012] NSWCA 64 [30] (Macfarlan JA).

[100] See Boscolo [172] - [173], referring to AB v FGH [2022] WASC 244. See also Lysaght [61], citing to Keep v Bourke [30] and Underwood v Gaudron [2014] NSWSC 1055 [231] (Hallen J).

[101] See Boscolo [168] - [169], citing Re Bull; Bentley v Brennan [2006] VSC 113 [30] (Byrne J).

[102] Simon v Permanent Trustee Co Ltd [2005] NSWSC 223 [43].

[103] See First Mark Jazwinski Affidavit [4], [18], [30], [42], 'MEJ1', 'MEJ2, 'MEJ3'.