When a court order comes knocking – Reasons to never ignore a Family Provision Act claim
A recent Supreme Court of WA judgment found a defendant was in contempt of court for ignoring orders in relation to a Family Provision Act 1972 (WA) (FPA) claim.
In The Public Trustee as administrator of the Estate of Jean Mary O’Sullivan v O’Sullivan [2025] WASC 108, the court found that the defendant, Mr O’Sullivan, was in contempt of court by resuming possession of property from which he had been evicted under a property seizure and delivery order (PSDO), following a previous successful FPA claim against his deceased mother’s estate by his sister in 2021.
Jean Mary O’Sullivan passed away on 8 April 2015 (Deceased). The Deceased was the registered proprietor of property in Safety Bay (Property). Mr O’Sullivan was granted probate of the Deceased’s estate (Estate) in 2016, and he became the registered proprietor of the Property. It was not until about 2019, that Mr O’Sullivan’s sister obtained a copy of the Deceased’s will and the grant of probate. In 2020, Mr O’Sullivan’s sister commenced an FPA claim.
Ordinarily, there is a strict 6 months’ time limit to commence a FPA claim after the grant of probate. The court will only grant an extension of time in limited circumstances, and it is the party making the application who bears the burden of proof to convince the court to exercise its discretion to extend time. In Mr O’Sullivan’s sister’s case before the court in 2021, the court allowed for an extension of time because, it appears, in addition to Mr O’Sullivan apparently making threats against his sister if she brought a claim against the Estate, at no stage did Mr O’Sullivan in his capacity as executor of the Deceased’s Estate engage with his sister as plaintiff or engage with the court. As such, it was only Mr O’Sullivan’s sister application and her evidence that was before the Court in 2021. As such the court allowed the applicant to be made out of time and made orders in her favour to the effect that the executor of the Deceased’s Estate be replaced with the Public Trustee and after all debts were paid, the residue of the estate was to go to Mr O’Sullivan’s sister.
Following, in 2022, the Public Trustee made an application to the court to exercise its power as executor of the Estate seeking orders for the Property. Notwithstanding numerous letters to Mr O’Sullivan demanding him to vacate the Property, and Mr O’Sullivan failing to abide, on 18 April 2023, the court issued a PSDO to the Sherriff of WA. On 21 April 2023, a Deputy Sherriff attended the Property and gave notice to Ms O’Sullivan that the Sherriff would be attending the Property on 10 May 2023 to take possession of the Property. On 10 May 2023, the PSDO was executed, and Mr O’Sullivan was evicted from the Property and possession was delivered to the Public Trustee. Mr O’Sullivan was informed that if he returned, he would be trespassing.
Alas, 5 months after his eviction, Mr O’Sullivan returned to the Property again. There followed numerous attempts by the Public Trustees lawyers and its agents demanding Mr Sullivan leave the Property. But, Mr O’Sullivan was adamant it was his Property, and he had no intention of leaving. This led the Public Trustee to make the further application to the court that Mr O’Sullivan was in contempt of the court by his failure to obey the PSDO (Contempt).
In considering the Contempt application the court was aware of the fact that Mr O’Sullivan was not represented by a lawyer and was cognisant of adjusting the court process and leniency of the court rules to ensure procedural fairness, but the court was also at pains to point out that it did not mean the other party was deprived of their right to a fair hearing.
The court ultimately found that Mr O’Sullivan was in Contempt for disobeying a judgment and unlawfully resuming possession of the Property that had been seized under the PSDO and failing to deliver vacant possession of the Property to the Public Trustee.
The case is a timely reminder to seek legal advice if:
· you believe you have a family provision claim for not being adequately provided for in a will, or in the proposed distribution of an estate; or
· you receive notice that a family provision claim has been made against an estate, where you are the executor. This is no time to hide but come and knock on our door.
