Supreme Court New South Wales Medium Neutral Citation: Pargeter v Pargeter [2024] NSWSC 675 Hearing dates: 27-28 May 2024 Date of orders: 28 May 2024 Decision date: 31 May 2024 Jurisdiction: Equity Before: Hmelnitsky J Decision: (1) Orders that of the 'lump sum' provision ordered in Order 1(a) of the Short Minutes of Order: (a) The first $100,000 be borne by Richard Pargeter (with his consent); and (b) The balance of $50,000 be borne by the remaining specific legatees (other than Mark Hillman), namely the McGrath Foundation, Heart Research Australia, Breast Cancer Trials, the Smith Family, Julie Hoppett, Jacqueline Friggieri, Victoria Hillman, Franklin Hillman and Lynne Evans, pro rata according to their respective pecuniary legacies as a proportion of $310,000. (2) Orders that the 'portable life estate' provision ordered in Order 1(b) of the Short Minutes of Order be borne by the residuary beneficiaries pro rata according to their interest in the residue, noting the appointment of Alexander Nott as trustee. Catchwords: SUCCESSION – Family provision – Nature of orders – Settlement – Burden of provision – Whether provision to come out of specific legacies or residuary estate Legislation Cited: Family Provision Act 1982 (NSW), s 13 (repealed) Succession Act 2006 (NSW), ss 59, 65 Cases Cited: Cantrell v Williams; Estate of Thomas Brindle [2004] NSWSC 579 Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported) Hoobin v Hoobin [2004] NSWSC 705 Webster v Strang [No 2] [2018] NSWSC 1411 Category: Consequential orders Parties: Trevor Maurice Pargeter (Plaintiff) Richard Le-Monde Pargeter (First Defendant) Lynne Marion Pargeter (Second Defendant) Representation: Counsel: Paul Glissan (Plaintiff) Andrew Stevens (Defendants) John Armfield (Residuary Beneficiaries) Solicitors: Guardian Solicitors (Plaintiff) Lexington Law (Defendants) File Number(s): 2023/180498 JUDGMENT 1. These proceedings were commenced by way of a summons filed 6 June 2023. The plaintiff seeks an order for provision pursuant to s 59 of the Succession Act 2006 (NSW) and costs against the estate of his deceased daughter. 2. The plaintiff is Mr Trevor Maurice Pargeter (Trevor). The deceased, Lesley Caron Nott, was his daughter. The deceased died on 7 June 2022 at the age of 61, leaving a will dated 20 August 2021 (the Will). The defendants are Richard Le-Monde Pargeter (Richard), Trevor's son and the deceased's brother, and Lynne Marion Evans (Lynne), a friend of the deceased. The defendants are the executors of the deceased estate pursuant to a grant of probate dated 15 June 2023. At the time of her death, the deceased was married to Mark Hillman (Mark). 3. The proceedings were listed for final hearing before me commencing 27 May 2024 with an estimate of three days. On the morning of the first day, the parties informed me that they had resolved all matters save for the question of where the burden of provision was to lie. 4. I stood the matter over until 2:00PM on 28 May 2024 for the purpose of hearing submissions on that question. As they had foreshadowed, the residuary beneficiaries of the estate, who are the children of the deceased, sought leave to be heard on the question. The plaintiff did not wish to be heard and did not appear. 5. At the conclusion of the hearing on 28 May, I made orders in accordance with short minutes of order disposing of the substantive issues between the plaintiff and the defendant. I also made orders as to where the burden of provision should lie. 6. These are my reasons for making the orders just referred to. 7. Before I set those orders out and explain why I made them, it is first necessary to note a little more about the background to the dispute and the terms on which it settled. Background 1. The following is a family tree containing the relevant members of the Pargeter family: 2. Trevor Pargeter had two children: the deceased and Richard. Trevor was born on 31 July 1935 and is now 88 years old. In recent years, Trevor has been living in the same property as Richard, being a property which Richard acquired from the deceased. That situation has not been ideal for either of them. An issue in dispute was whether, in what amount, and on what basis Trevor contributed to the purchase of the property prior to it being sold to Richard. 3. The final will and testament of the deceased made a large number of specific legacies and bequests. 4. It made the following gifts to charities: 1. $50,000 to the McGrath Foundation. 2. $30,000 to Heart Research Australia. 3. $30,000 to the Smith Family. 4. $50,000 to Breast Cancer Trials. 1. It left the following specific legacies: 1. $50,000 to the deceased's friend Julie Christine Hoppett. 2. $200,000 to Richard. 3. $25,000 to the deceased's friend Jacqueline Friggieri. 4. $25,000 Mark's daughter Victoria Hillman. 5. $25,000 to Mark's son Franklin James Hillman. 6. $25,000 to Lynne. 7. $100,000, and the remainder of the deceased's personal effects, to Mark. 1. It left the following bequests: 1. The deceased's BMW motor vehicle to the deceased's friend Julie Christine Hoppett. 2. The deceased's mother's jewellery to Richard. 3. The deceased's eternity and engagement rings to Mark. 4. The remainder of the deceased's Jewellery to the deceased's daughter Stevie Le Monde Nott. 1. The rest and residue of the deceased's estate was left in equal shares to: 1. The deceased's daughter Stevie 2. The deceased's son Alexander to be distributed in equal 6ths between him and his five children. 1. Trevor was not provided for, or mentioned, in the deceased's will. 2. The principal proceedings were, broadly, resolved on the basis of provision on the following terms: 1. Payment of $150,000 to the plaintiff absolutely. 2. A further payment of $500,000, such payment to be held by the deceased's son Alexander as trustee, with the intent that the plaintiff will have the benefit of a so-called portable life estate: see Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported). 3. The defendants' costs to be paid out of the estate on the indemnity basis; the plaintiff's costs to be paid out of the estate on the ordinary basis. 1. The total value of the estate is approximately $1,480,000 after costs and certain administrative expenses. 2. The only question left outstanding was the question of who should bear the burden of this provision. The burden of provision 1. Section 65(1)(c) of the Succession Act 2006 provides that an order for provision must specify "the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided." 2. The section confers a wide discretion. In Cantrell v Williams; Estate of Thomas Brindle [2004] NSWSC 579, Young CJ in Eq said of s 13 of the Family Provision Act 1982 that the discretion was "to be exercised according to the rules of reason and justice, with due regard to the whole of the surrounding circumstances"; see also Hoobin v Hoobin [2004] NSWSC 705 per White J. In the latter case, White J had particular regard to "the proper claims on the deceased's bounty" of the competing claimants, including their financial circumstances. I note however that his Honour did not confine his consideration to their financial circumstances. 3. Mr Armfield, who appeared with leave for two of the residuary beneficiaries (including Alexander, who is the father of the other residuary beneficiaries), drew my attention to what was said by Kunc J in Webster v Strang [No 2] [2018] NSWSC 1411 where his Honour emphasised that the question involves an evaluative judgment. 4. In the present case, there are several matters that particularly bear on the question of where the burden of provision should lie. 5. First and foremost, I was informed that Richard was willing for $100,000 of the provision to come directly from his specific legacy under the will. It will be seen from the family tree set out above that this represents a rather selfless act by Richard. He need not have made any such concession. The immediate effect of his concession is that it helps secure a measure of family comity at the conclusion of what has been a long and expensive litigation, the cost of which has ultimately been borne by the young residuary beneficiaries. Plainly he should not be required to bear any further burden of the provision. But I infer that his concession was made as a gesture to the residuary beneficiaries, not the specific cash legatees such as the various charities. 6. Secondly, as just mentioned, the residuary beneficiaries have been required to bear the costs of the litigation which exceeds the costs of the $150,000 cash provision which is to be paid to Trevor. 7. Thirdly, I note the rather elaborate testamentary scheme in this case. It certainly shows that the deceased had very particular views as to who should benefit from her estate. But be that as it may, the bulk of her testamentary bounty was directed towards the residuary beneficiaries even after taking those gifts into account. If the residuary beneficiaries were to bear the entire burden of provision as well as the costs of these proceedings, the balance would start to tip in favour of the specific legatees, which is unlikely to be what the deceased would have wanted. 8. Fourthly, the defendant submitted that the gift to Mark, the deceased's former husband, should not bear any of the burden of the provision for Trevor. Mr Armfield agreed. So do I. 9. Fifthly, there was evidence as to financial need by some of the specific legatees, but not all of them. To the extent there was such evidence, I have taken it into account. 10. It was for these reasons that I made the following orders as to the burden of provision: 1. Orders that of the 'lump sum' provision ordered in Order 1(a) of the Short Minutes of Order: 1. The first $100,000 be borne by Richard Pargeter (with his consent); and 2. The balance of $50,000 be borne by the remaining specific legatees (other than Mark Hillman), namely the McGrath Foundation, Heart Research Australia, Breast Cancer Trials, the Smith Family, Julie Hoppett, Jacqueline Friggieri, Victoria Hillman, Franklin Hillman and Lynne Evans, pro rata according to their respective pecuniary legacies as a proportion of $310,000 1. Orders that the 'portable life estate' provision ordered in Order 1(b) of the Short Minutes of Order be borne by the residuary beneficiaries pro rata according to their interest in the residue, noting the appointment of Alexander Nott as trustee. ********** Amendments 31 May 2024 - Amend photo size 04 June 2024 - Amend typographical error 04 June 2024 - Amend photo size DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2024