Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application for leave to file out of time - Claim by grandchildren - Whether justice of the case requires that leave be given to file out of time - Whether arguable case established on the merits - Whether defendants so prejudiced that application should be refused

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6, s 7(1)(d), s 7(2)(b)

Bath v Perpetual Trustees WA Ltd [2000] WASC 232

Bondelmonte v Blanckensee [1989] WAR 305

Pead v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 99077; 19 February 1999

Re Ruttie (Dec) [1970] 1 WLR 89

1 This is an application by each of the plaintiffs for leave to file out of time an application under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) for provision out of the estate of Dora Alice Mansfield, (deceased). The application is made pursuant to s 7(2)(b) of the Act.

2 The plaintiffs are grandchildren of the deceased and as such are persons entitled to make such a claim pursuant to the Act: s 7(1)(d).

3 The defendants are the executors and trustees of the will of the deceased. They are also entitled to the bulk of the deceased's estate under the will.

4 An application under ss6 and 7 of the Act may be heard by the Court unless the application is made within six months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia, or "the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time": s 7(2)(b).

5 In this case, the deceased died on 11 December 2001. Probate of the will of the deceased was granted to the defendants by this Court on 26 March 2002. No application was made pursuant to the Act within six months of that date. The application for leave that is now before me was filed in this Court on 28 January 2003.

6 Primarily, it is the "justice of the case" that governs the exercise of the discretion set out in s 7(2)(b) of the Act.

7 Factors relevant to the exercise of the discretion are well-settled and were outlined by Malcolm CJ in Clayton v Aust (1993) 9 WAR 364. They have been applied recently by the Full Court of this Court in Young v Kestel [2003] WASCA 190. Sometimes referred to as "guidelines", they include the following:

(1) The discretion is unfettered, but must be exercised judicially and in accordance with what is just and proper;

(2) the plaintiff bears the onus of proof of establishing sufficient grounds to take the case out of the general rule and depriving those who are protected by its benefits;

(3) the time limit is a substantive provision laid down by the Act itself and more than a procedural time imposed by rules of court. The burden on the applicant is no triviality. This means that the plaintiff must make out a substantial case for it being just and proper for the Court to exercise its statutory discretion;

(4) all circumstances must be considered. One significant factor is the length of the delay and the reasons for it and also the promptitude with which, by letter before action or otherwise, the claimant gave warning of the proposed application to the defendants;

(5) it is material whether negotiations have commenced within time, but not concluded once the time limit had elapsed;

(6) it is relevant whether the estate has been distributed at the time the executor becomes on notice of it;

(7) it is also relevant whether any beneficiary has changed his or her position in reliance on a distribution;

(8) it is relevant whether the claimant has an arguable case, but not detailed consideration of the merits of the case is required at the stage of hearing the application for leave to file out of time.

8 It should be emphasised, as did the Chief Justice in Clayton v Aust at 369, that the question whether a person has an arguable case on the merits must be answered against the background of s 6 of the Inheritance Act and the test formulated by Salmond J in In re Allen (Dec); Allen v Manchester [1922] NZLR 218 at 220 - 221, to this effect:

"The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and desserts [sic] of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of the relevant circumstances."

9 As the Chief Justice pointed out in Clayton v Aust at 370, this statement has been consistently followed and applied in Australia and with suitable modification apply equally where the testator is a mother, rather than a father, and in the case of adult children as well as in other cases. It is also relevant to the case of an application under the Act by a grandchild.

10 It is well-understood that, on an Inheritance Act application under s 6, the Court must decide two questions. The first is often labelled the "jurisdictional" question, namely, whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. That question is to be determined as at the date of death of the deceased. If that question is answered in the affirmative, the Court must then exercise its discretion to make such provision as it thinks fit, taking into account the relevant facts as they exist at the time of making the order. It is often said that the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the Judge at the date of hearing. The second question is recognised as involving the exercise of discretion. See generally the discussion in Kitson v Franks [2001] WASCA 134 at [6] - [8] per Malcolm CJ, and at [32] - [38] per Parker J (with whom Kennedy J agreed).

11 In Kitson v Franks, the deceased by her will left her estate equally to her two surviving children. The deceased also had two surviving grandchildren, a grandson and a granddaughter, by a son who had predeceased her. No provision was made in the will for the two grandchildren. The primary Judge found that some provision should have been made for them. On appeal, the Court upheld the order for provision for the granddaughter (in a varied form), but found the grandson failed to satisfy the jurisdictional question.

12 Malcolm CJ, at [10], agreed with observations of Parker J that, in determining whether grandchildren have been left without adequate provision in all of the circumstances for their proper maintenance, support, education or advancement in life, it is necessary to consider the financial position of each of them; the size and nature of the deceased's estate; the totality of the relationship between each of the grandchildren and the deceased; and the relationship between the deceased and other persons who have legitimate claims on her bounty.

13 The Chief Justice also agreed with Parker J that the evidence before the trial Judge showed that the granddaughter was in need of further provision for her proper support, education or advancement in life, if not for her proper maintenance. However, the Chief Justice agreed with Parker J, and contrary to the finding of the primary Judge, that the evidence failed to provide any basis for a finding on the jurisdictional issue that a provision was required to be made for the further education of the grandson. Their Honours considered there was no evidence that, at the date of his grandmother's death, the grandson suffered from any physical or other health problems which would prevent him from continuing his work as a plasterer for the remainder of his working life. Their Honours also concluded there was no basis in the evidence for a finding that, at the date of his grandmother's death, the grandson had been left without proper provision for this maintenance, education or advancement in life.

14 The Court recognised that, where an Inheritance Act application is made by grandchildren, it may often be the case that the grandchildren have a lesser claim on the estate than do the children of the deceased: see Malcolm CJ at [14] and [16] and Parker J at [55] - [56]. If a grandchild can satisfy the jurisdictional question, any "remoteness" in the relationship between the grandchild and the deceased may also be a factor to be taken into account in determining what would be "adequate" provision for the advancement in life of the grandchild: see Parker J at [71].

15 Parker J , at [66], dealt generally with the question of the factors relevant to an application by grandchildren. He dealt specifically with a submission that grandchildren should rank less favourably than children in a disputed Inheritance Act claim. He also dealt with a related submission that, in the case of applicants who are children of a deceased child of the testator, those grandchildren should, in effect, "stand in the shoes" of their parent and rank with the parent's surviving siblings. His Honour considered that each of these approaches would "distort the statutory scheme". His Honour observed that:

"As the respondents are among those entitled to claim under s 7(1) they have standing. It is not the purpose or effect of s 7(1), however, to make any provision as to the order in which those with standing might rank. If a person has standing and applies for provision out of the estate, it is s 6 which determines whether the application should succeed. This applies the same test to all applicants including children and grandchildren viz whether adequate provision has not been made for the applicant's maintenance, support, education or advancement in life. If so, it is for the court 'at its discretion' to order 'such provision as the Court thinks fit' be made for that purpose.

"Of course, as a matter of fact, in determining what will often be the difficult question whether adequate provision has been made, it may be a relevant factor in a particular case that an applicant is a grandchild rather than a child of the testator. Whether that is so, and if so what that relevance will be will depend, however, more upon the particular circumstances than the actual relationship of grandchild or child. For example an orphaned, young grandchild left without any substantial means of support is likely to be able to satisfy the jurisdictional test whereas an adult child established in a profession may not. On the other hand an adult child with a mental deficiency is more likely to be able to satisfy the jurisdictional test than a healthy adult grandchild. "

17 These observations are relevant to the leave application before me and the question whether any of the plaintiffs can make out an arguable case on the merits. The mere fact that an applicant is a grandchild of a testator is not, of itself, sufficient to justify the granting of leave. More needs to be shown.

18 By her will, the deceased appointed her surviving son and his wife, the defendants, to be the executors of her will. Subject to other provisions of her will, the deceased left her residual estate to the defendants. By another provision of the will, the deceased provided:

"If and when my property at 101 Monument Street, Mosman Park, Western Australia is sold, I wish $1000 (one thousand dollars) to be given to each of my grand-children surviving me at time of my death. Namely, Patricia Wieland [sic], Geoffrey Mansfield, Kevin Mansfield, Donelle Rutherford, Jackie Holden, Elisha Mansfield, and should she survive me I wish to leave $2000 (two thousand dollars) to my daughter in law Coral Brady."

The property at Mosman Park is the main asset of the estate.

19 As may be seen, the first, second, third and fourth claimants are four of the grandchildren nominated expressly by the deceased in her will. Each of them is the child of John Richard Mansfield, another son of the deceased, who predeceased his mother. He died on 12 August 1998. I would assume that the Coral Brady referred to in the will was married to him.

20 The application of the plaintiffs is supported by two affidavits of the third plaintiff, Elisha Joan Mansfield, sworn respectively 22 January 2003 and 13 March 2003. None of her siblings have sworn an affidavit in support. She says she is authorised to make the affidavits on behalf of her siblings. In her second affidavit, the third plaintiff says that she makes the affidavit "both from my own knowledge and from information that has been received from my brother and sisters". While objection has been taken to aspects of what she says on behalf of her siblings on the basis the grounds of her belief are not adequately specified, I am prepared to admit them into evidence.

21 In her first affidavit, the third plaintiff says that when her grandmother died, neither she nor the other plaintiffs were aware of any right they might have to make a claim in respect of her estate, believing that only the child of a deceased person is able to make a claim.

22 It appears that Ms Mansfield's belief changed in November 1992 when she took legal advice. She says that she then was advised that she could bring a claim, but that the time for bringing a claim had expired. It seems she, but not her siblings, sought this legal advice. She then says that she discussed the matter with her sisters and brother and they all agreed that they should pursue a claim "as we are all young and are in need of financial assistance".

23 The third plaintiff says she instructed her solicitors to write to the executors of the estate of the deceased to ascertain if the matter could be resolved without the need for litigation, but there was no response to the letter. This happened just prior to Christmas. After the Christmas holiday period, the present proceedings were then commenced. She further says that there is no prejudice to the defendants, as they had already been put on notice as to the application and the only asset of any substance of the estate that she is aware of is the house and land in Mosman Park, which is listed for sale, but in respect of which the proceedings have not been distributed.

24 In her second affidavit, the third plaintiff further says that all of the plaintiffs had a "good relationship and what we would describe as a normal family relationship" with their grandmother. She specifies occasions upon which her grandmother stayed with her and the man who is now her husband and refers to occasions when she would visit her grandmother and assist her with jobs, shopping and other matters which needed to be done at the time. She also states, and I infer on the basis of information provided by her brother, that her brother, Kevin would also visit his grandmother regularly, although he was, for a period of time, in the Royal Australian Air Force and had difficulties keeping in regular physical contact due to his postings around Australia.

25 The third plaintiff further says, and again I infer on the basis of information supplied by her sisters respectively, that both her sisters, Patricia and Jaqueline, live outside Perth, but would regularly visit their grandmother when they came to Perth and maintained a normal relationship with their grandmother. Further, Patricia telephoned her grandmother every Friday for the last 10 years of her life.

26 The third plaintiff says that, after her grandmother became ill, she went to live with the defendants and she would regularly visit them at their house. On an occasion when the defendants wished to "go away she came to stay with myself and my now husband for a weekend".

27 In par 7 of her second affidavit, the third plaintiff sets out the financial circumstances pertaining to each of her brother, Kevin, and her sisters, Patricia and Jaqueline. In pars 8, 9 and 10 of her affidavit, she sets out her own financial circumstances.

28 The financial circumstances of Kevin, the first plaintiff, are said to be as follows. He was born on 30 March 1967 and is a qualified cook. He was, therefore, 34 when his grandmother died. He had a motor vehicle accident on 22 January 2003 and injured his right foot. As a result, he is currently unable to work, but is receiving income replacement insurance payments. He normally earns approximately $1000 per week. His only assets consist of a motor cycle worth approximately $16,000 and a car worth approximately $9000. He has nominal savings. He has one child who does not live with him and he pays child support in the sum of $400 per month.

29 The circumstances of Patricia, the second plaintiff, are that she was born on 17 March 1965. She was, therefore, 36 years of age when her grandmother died. She is single and has a six-year-old child who is dependent upon her. She has a house valued at approximately $170,000 on which she owes $55,000. She has a car worth $3000, savings of approximately $600 and owes $1000 on a Visa card. Her income from part-time work if $384 per fortnight gross and, in addition to this, she receives child support of $280 per fortnight and assistance of $230 per fortnight from Centrelink.

30 The position of Jaqueline, the fourth plaintiff, is that she was born 4 July 1970. She was, therefore, 31 when her grandmother died. She works as a laboratory technician. She has an income of approximately $62,000 per annum. Her assets consist of a half-share in two properties with a total worth of approximately $200,000 and savings of approximately $35,000. She is married and assists in the care of her husband's child who is 15 years of age.

31 Elisha, the third plaintiff, is the youngest of the plaintiffs, having been born on 15 May 1978. She was, therefore, 23 years of age when her grandmother died. She is in full-time employment and earns approximately $33,000 per annum. On 19 January 2003, after her grandmother's death, she was married. Her assets consist of a half-share in a house which is valued at $140,000 on which she and her husband owe $93,000. Her husband earns approximately $500 per week as a nursery manager. She has no savings and her only other asset is a car worth approximately $13,000 on which she owes $5500.

32 While the evidence of the third plaintiff concerning the plaintiffs' circumstances seems to relate to the date she made her second affidavit, I infer the positions described were substantially the same at the time of death of the deceased.

33 The plaintiffs acknowledge that the estate of the deceased consists predominantly of the house and land in Mosman Park. In addition, there is some furniture and a small savings account. A statement of the assets and liabilities filed in connection with the probation application discloses that the value of the estate, estimated for the purposes of probate, exceeds some $400,000. At the time the third plaintiff made her second affidavit, she believed the deceased's home to be on the market with an asking price of $475,000.

34 In relation to the timing of the present application, the third plaintiff says in her second affidavit that neither she nor her siblings were aware that they could bring an application in this matter until they obtained legal advice on 28 November 2002 to that effect. She says that at the appointment at which this legal advice was obtained it was ascertained that an application under the Act could be made. However, she did not have an agreement from her siblings to take such a course at that time. She then obtained that agreement from her siblings and her present solicitors were retained to make the application in December 2002. She says, however, that due to her wedding she and her siblings were not able to finalise the papers until early January 2003. The papers were then served on the defendants.

35 The defendants have made a joint affidavit sworn 8 April 2003 opposing the application. They say that the granting of relief would cause them prejudice in light of all the surrounding circumstances.

36 The defendants say that the deceased made her testamentary intention very clear to everyone, including the plaintiffs, that she intended her grandchildren to benefit equally from her estate and to that end gave each of the six grandchildren $1000 by the will.

37 They say that the deceased made it clear to everyone, including the plaintiffs, that her residence at Mosman Park would be given to them in recognition of all the assistance and support they had provided her during her lifetime.

38 The defendants say that shortly after the death of the deceased on 11 December 2001, all the plaintiffs were advised that according to the will all grandchildren would receive an equal amount of money after the granting of probate and sale of the house, and that all plaintiffs indicated they were happy with the prospect of the cash gift.

39 Indeed, the defendants say that the second plaintiff said to the second-named defendant, Mrs Mansfield, that she was surprised that her grandmother would think of them again as she had already given each grandchild the sum of $500 approximately 18 months earlier and additionally had given her her sewing machine.

40 The defendants also say that at the time the plaintiffs were advised of their grandmother's monetary gift, they also offered them a share in any furniture, appliances, jewellery or sentimental material that comprised the deceased's estate, but despite repeated attempts to organise this, the items remained in the defendants' possession a year later.

41 The defendants say that the sum of $1000 was considered by the deceased to be a very large amount, especially given that she was on an aged pension and very careful with her money.

42 So far as prejudice is concerned, Mr Mansfield says that he has received treatment for bowel cancer and is presently in remission. Mrs Mansfield says that she requires daily medication to regulate her heart and high blood pressure, both of which she understands make her susceptible to heart attacks or strokes if left unmedicated.

43 The defendants say that it was the deceased's intention that they should retire on the inheritance she would leave to them. Prior to her death, the defendants say the deceased had often told them that they should retire and live off the inheritance because, amongst other things, of their ill health.

44 Mr Mansfield says that he has already given notice to his employer that he wished to retire as soon as the property at Mosman Park was sold and he did this before the plaintiffs gave any indication that they were not satisfied with what their grandmother had left them and intended to challenge her will.

45 The defendants say if the plaintiffs' application for an extension of time is allowed, it would cause extreme prejudice to their current financial situation. Mr Mansfield says his employers have made alternative arrangements in light of his announced pending retirement. Specifically, he says he was not included in the most recent essential ongoing educational courses mandatory for an employee in his position. These are held in the Eastern States. As he is considering retirement, the undertaking of this course was considered unnecessary and a waste of company resources. He says because he has not attended this course, the continuation of his employment is jeopardised, particularly at his age of 63. He identifies himself as a sales representative in his affidavit, but otherwise no details of his employer and the nature of his position is provided for the purposes of this application.

46 The defendants say the house in Mosman Park has now been sold for $415,000 and they anticipate the amount of the estate will be approximately $390,000.

47 The defendants also claim prejudice in that they have also made plans to improve their home, which is a 30-year-old building with 25-year-old curtains and 20-year-old floor coverings. They have also made plans to replace their 12-year-old vehicle and take an overseas holiday.

48 They say that they had to be close by to the deceased during the last years of her life. They say that the deceased "intended us to use the money in her estate to take this extended holiday, in light of our continued commitment to both our small business and to the consistent caring for her and (the late Mr Fred Mansfield)". They say they have supported the deceased emotionally and physically since her husband's death in May 1996 and have had constant and consistent contact with her and that she stayed with them regularly. They say the deceased stayed with them every second weekend for some years prior to her death.

49 Prior to then, the defendants say they supported the deceased and Mr Fred Mansfield through his major heart operations and subsequent leukaemia until his death.

50 The defendants say that, by comparison, the plaintiffs' contribution to their grandparents' wellbeing was minimal.

51 Counsel for the plaintiffs says that, on the affidavit material filed on behalf of the plaintiffs, the plaintiffs have shown that each of them is in need and that the deceased had an obligation to satisfy that need, and so there exists an arguable case on the merits under the Act. It is also said the delay in making this application is explicable in the circumstances.

52 On behalf of the defendants, counsel contends that, on the material before the Court, the plaintiffs have failed to discharge the onus of proof in showing a substantial case for an extension of time and that the evidence of the relationship between the plaintiffs and the deceased falls short of establishing a moral claim.

53 Counsel for the defendants also argues that the explanation for the delay put forward by the plaintiffs is inadequate and seeks to rely simply on ignorance of the law as to the time laid down for the making of an application under the Act. On behalf of the respondents it is said that the plaintiffs were on notice as to the provisions of the deceased's will about a year before any claim was made.

54 It is further said on behalf of the defendants that no negotiations were commenced at any time to allow any enlargement of the time for the making of the claim.

55 It is admitted by the defendants that no distribution of the estate has been made. However, the defendants say they have altered their position in reliance on the terms of the will as, in particular, Mr Mansfield, has given notice of his intention to cease his present employment.

Whether plaintiffs have established an arguable case on the merits

56 In Clayton v Aust (supra), the Chief Justice (with whom Rowland and Franklyn JJ agreed) found that the Master of the Court should not have categorised an arguable case as "strong or weak". It was enough that it was arguable. The Chief Justice also found, at 373, that the Master was wrong to resolve a conflict of evidence on the affidavits before him. Any conflict needed to be tested in proceedings on cross-examination.

57 Therefore, it does not matter that the Court considers, for the purposes of this application, that each of the plaintiffs has a weak or strong case if it is accepted that the case on the merits is arguable. However, if there is no arguable case, leave to file out of time should not be granted.

58 In this case, in my view, the affidavit evidence presented on behalf of each of the plaintiffs is, to say the least, minimal. Some information concerning the financial position of each of the plaintiffs has been provided, and has been set out earlier in these reasons. Some broad statements have been made concerning the nature of the relationship that the plaintiffs maintained with their grandmother. It indicates in each case a "normal" relationship. Certainly there is nothing on the evidence before me to suggest that there was an exceptional relationship in any case, such that it raised some particular moral obligation for the deceased to make provision for that plaintiff. Indeed, it might be said that, save in the case of Elisha, the third plaintiff, each of the plaintiffs was, at the time of the death of the deceased, a mature adult of independent means who has made his or her progress through life apparently unaided by the deceased.

59 There is, in my view, little, if anything, in the affidavit material filed on behalf of the plaintiffs, with the exception of Elisha, to suggest why, considering their means, each of them has a moral claim upon their grandmother's bounty. They were each recognised to the extent of a legacy of $1000 in the will. It is also said by the defendants that each of the plaintiffs was earlier recognised by a smaller gift of cash in the lifetime of the deceased. The mere fact that each of the first, second and fourth plaintiffs is a grandchild of the deceased is insufficient to make out an arguable case on the merits. The matter is not advanced any by the mere assertion that each is in "financial need".

60 In my view, it is difficult to distinguish, in terms of principle, the position of the grandson in Kitson v Franks with the position of the first, second and fourth plaintiffs in this case. In short, it is difficult to see why, on the materials before me, even arguably, any provision was required for the maintenance, support, education or advancement in life of these three adult grandchildren. Indeed, I am not satisfied that the first, second and fourth plaintiffs have established an arguable case that they are entitled to involve the jurisdiction of the Court on an application under s 6 of the Act. For that primary reason, their applications for leave to file out of time should be refused.

61 I have, in this analysis, excluded the position of the third plaintiff, Elisha. I consider that, on the material before me, her position arguably is different. She is the youngest of the plaintiffs. At the time of the death of the deceased, she was considerably younger than her siblings, being then of the age of 23. She was not then married. On the affidavit evidence before me, a Court arguably might be able to conclude that, having regard to her age and the fact that she was starting out on adult life, she did not receive adequate provision out of the estate of the deceased for her advancement in life. I would, therefore, not refuse the application of the third plaintiff for leave to file out of time on the ground that she cannot arguably make out a case on an application under the Act.

62 That then leaves the question whether the defendants, as the residual beneficiaries under the will of the deceased, are likely to be so prejudiced by the application of the third plaintiff for leave being allowed that the application should be refused.

63 That the third plaintiff has not commenced an application under the Act within the period of six months specified in s 7(2)(a) has been explained as far as it can be. It seems to me not unreasonable in all of the circumstances that she did not bring this application until the time she did. I accept she was ignorant of the fact that a grandchild may bring an application under the Inheritance Act and that such an application should be brought within six months of the date upon which the administration of the estate arises. The application under the Act should have been made prior to 26 September 2002. However, it is agreed that the defendants were put on notice as to the plaintiffs' claim on or about 28 November 2002. This application was then filed on 22 January 2003. In between these dates there was the Christmas period and the wedding of the third plaintiff.

64 Extensions of time have been granted in a variety of circumstances, including where the applicant was unaware of the right to apply: Coates v National Trustees Executors & Agency Co Ltd & Anor [1956] HCA 23; (1956) 95 CLR 494 at 505. Other circumstances include: where the applicant was aware of her rights, but could not afford to pursue them (Coffey v Bennett [1961] VicRp 41; [1961] VR 264); where the applicant was unaware of the true size of the deceased's estate (Re Nassim (Dec) [1984] VicRp 5; [1984] VR 51 at 56 and 57); where the applicant was unaware or under a misapprehension of the extent of her own interests under the deceased's will ( In re Marland (Dec) [1957] VicRp 48; [1957] VR 338 at 340); where bona fide negotiations to settle the claim for provision had extended beyond the time limit (Amos v Amos [1966] VicRp 61; [1966] VR 442); and where negotiations were commenced after the time limit and where the defendant had not then taken the point that time had expired (Re Salmon (Dec) [1981] Ch 167 at 175).

65 The authorities also show, as in Young v Kestel (supra), that in some circumstances a failure to make an application under the Act in the prescribed time may be explained and justified by a lack of information in the hands of an applicant. A lack of information may support the view that the applicant was not in a position to make a responsible decision about whether or not to institute proceedings under the Act. However, I do not think that this particular consideration is relevant to the application before me. The plaintiffs seem, at all material times, to have been aware of the terms of the will, that they were to receive a small legacy under it and that the bulk of the estate - the house at Mosman Park - would, in effect, go to the defendants.

66 Thus, the real reason for the delay of the third plaintiff in this case seems to have been her ignorance of her entitlement to make a claim under the Inheritance Act and the time limit prescribed by s 7(2)(a) of the Act. However, as soon as she became aware of that in late November 2002, upon receiving legal advice, notice of her intention to take action was provided to the defendants. The present application was made within a reasonable period thereafter.

67 I am satisfied that this is a case where the third plaintiff has an arguable (albeit, in light of the materials before me, a weak) case to make under the Inheritance Act. Her delay in bringing this application is not so great as to preclude it. While the defendants can rightly contend that the plans they have made for the future will be prejudiced by the third plaintiff being permitted to file out of time, the prejudice identified is not such that it should prevent the third plaintiff from having leave so to do.

68 Accordingly, for these reasons, I would grant leave to the third plaintiff to file out of time an application for provision out of the estate of the deceased under the Inheritance Act.

69 However, for the reasons stated above, I do not consider that the first, second and fourth plaintiffs have demonstrated an arguable case on the merits and their applications for leave should be refused.