Supreme Court New South Wales Medium Neutral Citation: Pateman v Pateman (deceased) [2015] NSWSC 2151 Hearing dates: 15 December 2015 Date of orders: 15 December 2015 Decision date: 15 December 2015 Jurisdiction: Equity - Family Provision List Before: Brereton J Decision: Orders appointing representative of deceased defendant made. Catchwords: PROCEDURE – appointment of person to represent defendant in proceedings – where defendant has died – where both defendant's will and plaintiff seek appointment of different persons to represent defendant – function of defendant in family provision proceedings – where plaintiff has no proper interest in identity of person representing defendant – where appropriate representative party is person nominated in defendant's will. Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 7.10 Category: Procedural and other rulings Parties: Graham Noel Pateman (first plaintiff) Stephen James Pateman (second plaintiff) Mark Anthony Pateman (third plaintiff) Marree Ann Pateman (fourth plaintiff) Vicki Lee Pateman (fifth plaintiff) Ricky Pateman (defendant) Peter Mark Saunders (alternate representative for the estate of the late Ronal James Pateman) Representation: Counsel: D W Elliott (first plaintiff) R Keller w R Armitage (second to fifth plaintiffs) M Hadley (alternate representative) Solicitors: Pickering Law (plaintiffs) Conroy Stewart Spagnolo (alternative representative) File Number(s): 2015/271904 Judgment (ex tempore) 1. By notice of motion filed on 4 December 2015, an application is made on behalf of the defendant estate for the appointment of Phillip Scott Down, who is the executor named in the will of the present named defendant, the late Ricky Mark Pateman, to be appointed pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 7.10, to represent the estate of Ronald James Pateman in the proceedings. By motion filed in court today, of which notice was earlier given informally, the first plaintiff Graham Noel Pateman seeks an order that one Peter Mark Saunders be appointed to represent the estate of Ronald James Pateman in these proceedings. 2. The present proceedings are proceedings for family provision orders. The deceased in those proceedings, whose will is the subject of the suit, is Ronald James Pateman. He named two executors in his last will, the first plaintiff Graham Noel Pateman, and the former defendant Ricky Mark Pateman. Graham Noel Pateman and four siblings commenced these proceedings for a family provision order. Because Graham Noel Pateman was a plaintiff, he was properly not joined as a defendant, and the defence of the proceedings was left to the late Ricky Mark Pateman. 3. After the proceedings were instituted, Ricky Mark Pateman died. In circumstances of the demise of the former defendant Ricky Mark Pateman, it is of course necessary that someone be appointed in his place to represent the interests of the estate of Ronald James Pateman in the present proceedings. There is scant evidence as to the terms of the will of Ricky Martin Pateman. The Court has been informed that his beneficiary is a former girlfriend or potentially de facto partner, but that there are likely to be claims against that estate for provision by two children of Ricky Mark Pateman. What is known is that his will appointed Phillip Scott Down, whom I will call the defendant's nominee, as executor. 4. The plaintiff's nominee, as I shall call him, Peter Mark Saunders, is an accountant, formerly the accountant for the deceased, Ronald James Pateman, and indeed was nominated as his executor in an earlier will, but was superseded by a codicil to the last will. 5. The selection of a person to represent the estate in these circumstances is informed by the function of a defendant in family provision proceedings. Fundamentally, the role of the defendant is to uphold the will or to compromise the proceedings if they can be the subject of a proper compromise. The role of the defendant involves representing and defending the beneficial interests under the will. 6. The substance of the family provision claims brought by the plaintiff is to impugn the gift made to Ricky Mark Pateman, by way of reducing it to make greater provision for the plaintiffs. In those circumstances, I have great difficulty in seeing what proper interests the plaintiffs have in the identity of the person who is to be responsible for upholding the will. Although the precise beneficial interests under the former defendant's will are less than clear, it is clear enough that the persons who are to be represented are those who have an interest in the estate of Ricky Mark Pateman and, in the absence of any better evidence, the manifest candidate for that role is the executor named in the will of Ricky Mark Pateman. 7. The Court orders that: 1. pursuant to UCPR, r 7.10, Phillip Scott Down be appointed to represent the estate of Ronald James Pateman (deceased) for the purpose of these proceedings. ********** 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: 22 September 2017