STOCKWELL -v- KING [2026] WASC 34 (13 February 2026)

1. Jasmine (in her capacities as the first and fourth defendant) and Jade have each filed a notice of intention to abide informing the court that they do not intend to take part in the application and will accept any order made by the court other than as to costs.
2. No appearance has been filed by Chew or Matthew. I am satisfied they have both been served and are on notice of the application. Chew has informed John's solicitors that she does not intend to file any affidavits or opposition to the application. There has been no contact from Matthew.
3. The deceased died on 6 November 2024 at the age of 72 years, leaving a will dated 25 August 2021 (Will). The Will makes no provision for John. On 3 February 2025, probate was granted to Jasmine, as the executor appointed under the Will (Grant). The Estate is yet to be distributed.
4. The time for bringing an application for provision under the Act without leave of the court expired on 3 August 2025, being six months from the date of the Grant. The application for leave and, if leave is granted, for provision, was filed on 6 August 2025, three days out of time.
5. Although the application for leave was not opposed, I must still be satisfied that it is in the interests of justice to make the orders sought. For the reasons that follow, having considered the evidence filed in support of the application for leave and the submissions made on John's behalf, I was satisfied that leave to bring the application for provision out of time should be granted.

1. In support of the application for leave, John relies on an outline of submissions filed on 6 February 2026 and affidavits of:

(a) Kiran Dheep Kaur sworn and filed on 8 August 2025 (First Kaur Affidavit) and on 11 February 2026 (Second Kaur Affidavit);

(b) John Ernest Edward Stockwell sworn and filed on 18 August 2025 (Stockwell Affidavit); and

(c) Andrew Stephen, process server, sworn on 5 February 2026 and filed on 6 February 2026 (Stephen Affidavit).

1. As noted, the application for leave was not opposed. None of the defendants filed any materials or sought to be heard.

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 Court of Appeal summarised the principles to be applied in determining an application to extend time under s 7(2)(b) of the Act in Wheatley v Wheatley,[1] which I refer to and have applied in determining the application for leave.
2. As observed in Wheatley,[2] the Full Court in Clayton v Aust,[3] 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.[4] The relevant principles may be summarised as follows:
   1. The discretion of the court is unfettered but must be exercised judicially and in accordance with what is just and proper.
   2. The time limit in the Act is a substantive provision and not a mere procedural time limit.
   3. The onus is 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. In considering whether the applicant has discharged this onus, a relevant question is whether the applicant has an arguable case on the merits.[5]
   4. It is material when considering the application how promptly, and in what circumstances, the applicant has brought an application for an extension, including the length of, and reason for, the delay.
   5. It is relevant to consider whether there have been any negotiations with the defendants during the six-month time limit.
   6. Also relevant is whether or not the estate has been distributed before the claim was made or notified.
   7. Whether a refusal to extend time would leave the applicant without redress against anyone is a further relevant consideration.

1. The following uncontested facts, which I find for the purpose of the application for leave to file out of time, are derived from the Stockwell Affidavit.
2. John is now 67 years old.[6] He and the deceased met and began a relationship in 1996 in the United Kingdom, where they both lived at the time. When they met, they were both separated from their spouses and had their own children. The deceased's children, Jade, Jasmine and Matthew, were teenagers when the relationship began. John's children were aged 9 and 11.[7]
3. In about 1998, John and the deceased moved into the deceased's home in Essex in the United Kingdom, where they lived together as a de facto couple.[8]
4. After several visits to Perth, Western Australia over 1998 to 2000, John and the deceased decided to migrate to Perth, which they did in April 2003.[9] Matthew migrated to Australia in 2006, followed by Jasmine in 2009.[10]
5. In September 2003, John and the deceased purchased a home together, located in Mindarie, Western Australia (Mindarie Property), as tenants in common in equal shares.[11]
6. The deceased contributed $200,000 towards the purchase of the home from the proceeds of sale of her home in the United Kingdom.[12] A Deed of Acknowledgement was prepared to reflect the deceased's $200,000 contribution to the purchase of the home.[13] This is recorded as an asset of the Estate in the statement of assets and liabilities.[14] The balance was funded by a home loan, secured by a mortgage on the Mindarie Property. A statement prepared by John records that $70,000 remains outstanding under the mortgage.[15]
7. The deceased worked as a nurse manager during her lifetime.[16] John worked as a carpenter/joiner.[17] John undertook all maintenance to the Mindarie Property over the years, including of various renovations and improvements to the property.[18]
8. John and the deceased maintained a joint bank account, which they each contributed to monthly. This account covered various bills, including the mortgage, rates and taxes and other household expenses. They also shared other expenses.[19]
9. In 2021, the deceased reduced her work commitments resulting in John taking on more of the financial responsibilities.[20]
10. In September 2024, the deceased was diagnosed with cancer and died only six and a half weeks after diagnosis.[21] John cared for the deceased in the final weeks of her life and visited her during her extended stays in hospital.[22]
11. John and the deceased had a close relationship. As is to be expected, the loss of his long-term partner has taken an emotional toll on him. He is 67 years old and does not have family support in Western Australia. As such, he has found it hard to work and has not worked much since the deceased died.[23] At the time of swearing his affidavit, he was applying for a Centrelink pension.[24] He wishes to stay in the home he lived in with the deceased which he continues to pay the mortgage and other expenses for.[25]
12. John sets out his financial position in his affidavit.[26] He also attaches a copy of the statement of assets and liabilities for the Estate, which records estimated total assets of $1,163,023.92 at the date of the deceased's death.[27] This does not include the amount outstanding under the mortgage over the Mindarie Property.

1. As noted, the time for bringing an application for provision under the Act without leave of the court expired on 3 August 2025, being six months from the date of the Grant.[28] The application was brought three days later, on 6 August 2025.
2. This is not a significant delay in the circumstances, which I find are as follows.
3. On 17 June 2025, John instructed his solicitors to provide advice in relation to a claim under the Act.[29]
4. This was four and a half months after the Grant and one and a half months before the time for bringing a claim would expire. This is unremarkable, in the circumstances. Due to a clerical error by his solicitors, the date of expiration of the limitation period was diarised to be 3 September 2025, instead of 3 August 2025.[30]
5. On 19 June 2025, John's solicitors wrote to the executor's solicitors seeking a copy of the Grant, which included a copy of the Will, and the statement of assets and liabilities in relation to the Estate.[31] Those documents were provided to John's solicitors on 25 June 2025.[32]
6. Ms Kaur, John's solicitor, became aware of the clerical error on 5 August 2025.[33] The application was then filed promptly the next day, 6 August 2025, just three days after the time to bring a claim had expired under the Act.[34]
7. As submitted on John's behalf, the delay in bringing the application is short and is explained by a clerical error by John's solicitors.
8. These are matters that weigh in favour of granting an extension of time.

1. There is no evidence of any negotiations. However, it may be inferred from the letter sent by John's solicitor to Jasmine's solicitor on 25 June 2025 that Jasmine (as executor and personally) was put on notice of the claim. The application was made at an early stage putting all of the relevant parties on notice of the claim for provision. The application for leave is not opposed.

The value of the Estate and status of distribution

1. The statement of assets and liabilities estimates that, as at the time of the Grant, the value of the Estate was approximately $1.16 million.[35]
2. The Estate has not been distributed. This is a matter that also weighs in favour of granting leave.

1. On an application of this nature, John need only show an arguable case that is 'fit to go to trial'. No detailed examination of John's case is required. The court should proceed on the basis that John's evidence will be accepted at trial.[36]
2. John is the de facto partner of the deceased and eligible to bring a claim under s 7(1)(a) of the Act.
3. By the Will, the deceased made the following bequests:[37]
   1. A sum of $100,000 to Chew;
   2. Forty percent share of the residue of the Estate to Jade;
   3. Forty percent share of the residue of the Estate to Jasmine; and
   4. Twenty percent share of the residue of the Estate to Matthew.
4. No provision is made in the Will for John.
5. As outlined, John still lives in the Mindarie Property, which he and the deceased shared as their home for 20 years. Over that time, John has maintained and improved the Mindarie Property. He wishes to stay in the home he lived with the deceased which he continues to pay the mortgage and other expenses for.[38]
6. John deposes that he was informed on 11 August 2025 that the deceased's superannuation fund, which does not form part of the Estate, will be apportioned to him as to 71% and the remaining balance distributed between Jade, Jasmine and Matthew. There is some dispute about this.[39] The statement attached to John's affidavit suggests the value of the superannuation fund is $250,000.[40]
7. John's financial position is modest.[41] He is 67 years old, has no family support in Western Australia and, at the date of his affidavit, was in the process of applying for a Centrelink pension.[42]
8. I make no findings at this stage as to the strength of the claim, but I am satisfied John has an arguable case on the merits.

Would refusal to extend time leave the plaintiff without redress?

1. John has played no part in the delay in making his application for provision from the Estate.[43] He has done all that could be expected of him and should not be shut out from bringing a claim because of any potential claim against his solicitors.[44]
2. In the circumstances of this case, as outlined, the interests of justice weigh heavily in favour of granting an extension of time for John to bring a claim for provision.

1. For these reasons, I was satisfied that John should be given leave to bring an application for provision under s 7(1)(a) of the Act out of time and made the following orders in relation to the application for leave, and orders in relation to amendment of the originating process:
   1. Pursuant to s 7(2)(b) of the Family Provision Act 1972 (WA) (Act), the time for the plaintiff to bring an application under s 7(1) of the Act is extended to the date of filing of the originating summons, 6 August 2025, and as amended in accordance with orders 2 and 3 of these orders.
   2. The plaintiff have leave to amend the originating summons to amend the form of the plaintiff's claim for provision pursuant to s 7(1) of the Act (Amended Originating Summons).
   3. By 26 February 2026, the plaintiff is to file and serve the Amended Originating Summons on each of the defendants.
   4. Service of the Amended Originating Summons on the second defendant may be effected by sending it to her by email to [redacted].
   5. The matter be listed for further directions on a date to be fixed after 5 March 2026.
   6. No order as to costs.

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

[1] Wheatley v Wheatley [2018] WASCA 34 (Wheatley) [54] ‑ [63] (Martin CJ, Buss P & Murphy JA).

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

[4] The application in that case 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.

[5] A detailed examination of the applicant's claim is not required. See Wheatley [58]; Clayton (370).

[13] Stockwell Affidavit [2.6], 'JES 2'.

[14] Stockwell Affidavit 'JES 3'; First Kaur Affidavit [8], 'KDK 1'.

[15] Stockwell Affidavit [4.1], 'JES 4'.

[26] See Stockwell Affidavit [3.1] - [3.3].

[27] Stockwell Affidavit [4.1], 'JES 4'.

[28] Family Provision Act 1972 (WA) s 7(2)(a).

[29] Plaintiff's submissions [11]; First Kaur Affidavit [5].

[30] Plaintiff's submissions [13]; First Kaur Affidavit [6].

[31] Plaintiff's submissions [14]; First Kaur Affidavit [7].

[32] Plaintiff's submissions [14]; First Kaur Affidavit [8], 'KDK 1'.

[33] Plaintiff's submissions [15]; First Kaur Affidavit [9].

[34] Plaintiff's submissions [16]; First Kaur Affidavit [11].

[35] First Kaur Affidavit 'KDK 1'; Stockwell Affidavit 'JES 1'.

[36] Clayton (373); Wheatley [58]; Drake v Bradshaw [2017] WASC 288 [7]; Hyde v Palfrey [2017] WASC 65 [10] ‑ [16].

[37] Stockwell Affidavit 'JES 1', page 2, cl 2.

[38] Stockwell Affidavit [2.8], [2.10], [3.2].

[41] Stockwell Affidavit [3.1], 'JES 3'.

[42] Stockwell Affidavit [2.14], [3.3].

[43] The delay in this case is also minimal.

[44] See Grigoriou v Nitsos [1999] WASCA 42 [17], [29] and the authorities referred to.