Western Australian Current Acts Western Australian Current Acts (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 ; or
(b) a
claim to which section 63 applies; or
(c) a
claim by a person to be a beneficiary under the will, or to be entitled on the
intestacy, of the deceased person, or to be beneficially interested under the
trust;
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.
(4) The remedies given
to any person by this section are in addition to all other rights and remedies
(if any) available to that person, and nothing, other than the provisions of
subsection (7) and (8), restricts those other rights and remedies.
(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;
or
(b) in
the case of any other claim, unless the application for that order is made
within the time within which the applicant could have enforced his claim in
respect of the estate, without special leave of the Court, if the assets had
not been distributed;
but, notwithstanding
the foregoing provisions of this subsection, the order may be made, with the
special leave of the Court, on application made within the time within which
the applicant could have enforced his claim, in respect of the estate, with
special leave of the Court, if the assets had not been distributed.
(6) Notwithstanding
anything to the contrary in subsection (5), where a trustee has made a
distribution of any assets forming part of the estate of a deceased person or
subject to a trust, and any person who is entitled to apply for an order under
this section has, within the time specified in that subsection, applied to the
Court for an order on the claim and that person was not aware of the
distribution at the time when he made that application, the Court may hear an
application by that person under this section after the expiration of the
period prescribed by subsection (5), if it is made within 6 months after the
date on which the person first became aware of the distribution, and may make
an order accordingly.
(7) Notwithstanding
any rule of law to the contrary, where a trustee has made a distribution of
any assets forming part of the estate of a deceased person or subject to a
trust —
(a) a
person may exercise the remedies (if any) given to him by this section and all
other rights and remedies available to him (including all rights that he may
have to follow assets and any money or property into which they have been
converted) without first exercising the rights and remedies (if any) available
to him against the trustee in consequence of the making of the distribution;
and
(b) a
person shall not exercise any remedy that may be available to him against the
trustee in consequence of the making of the distribution, until he has
exhausted all other remedies available to him, whether under this section or
in equity or otherwise.
(8) Where a trustee
has made a distribution of any assets forming part of the estate of a deceased
person or subject to a trust, relief (whether under this section or in equity
or otherwise) against any person other than the trustee or in respect of any
interest of any such person in any assets so distributed and in any money or
property into which they have been converted, shall be denied, wholly or in
part, if the person from whom relief is sought received the assets or interest
in good faith and has so altered his position in reliance on his having an
indefeasible interest in the assets or interest, that, in the opinion of the
Court, having regard to all possible implications in respect of the trustee
and other persons, it is inequitable to grant relief or to grant relief in
full.
(9) Without prejudice
to the provisions of subsection (8), an order under this section may provide
that any payment directed to be made by that order shall be made by periodic
payments or by instalments, and the Court may fix the amount or rate thereof
in the order, and may from time to time vary, suspend or discharge the order
for cause shown, as the Court thinks fit.
[Section 65 amended: No. 57 of 1972 s. 3; No. 48
of 2011 s. 16(4) and (5).]