Pendergast v Shingles - [2025] NSWSC 909

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate of Pendergast; Pendergast v Shingles [2025] NSWSC 909
Hearing dates: 12 May 2025
Date of orders: 13 August 2025
Decision date: 13 August 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision:
The will of the deceased is construed in accordance with interpretation (b). Parties are also directed to bring in short minutes of order, including any proposed consequential orders for the administration of the Estate.

Catchwords:
SUCCESSION – Construction – General principles – Structure and scheme of will – a will contains provisions dividing the deceased estate after notionally augmenting the value of the estate to include the value of certain real property distributed to one beneficiary, the plaintiff, during the lifetime of the deceased (the inter vivos distribution) – parties dispute whether (a) the provisions in substance divide the net value of the estate and ignore the inter vivos distribution to the plaintiff, or (b) whether the inter vivos distribution to the plaintiff is brought to account and deducted from the distribution to the plaintiff.

Legislation Cited:
Succession Act 2006, ss 31 and 32

Cases Cited:
Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404
Fell v Fell (1922) 31 CLR 268
Hatzantonis v Lawrence [2003] NSWSC 914
Henry John Northey v Jennifer Frances Juul & Anor [2014] NSWSC 464
James v Douglas [2016] NSWCA 178
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
NSW Trustee and Guardian v Reid [2023] NSWSC 1053
Perrin v Morgan [1943] AC 399; 1 All ER 187
Re Buckton (1907) 2 Ch 406
Reeves v Reeves [2024] NSWSC 134
Re Willis [1996] 2 Qd R 664

Category: Principal judgment
Parties: Karl Pendergast (Plaintiff)
Lordona Maree Shingles (First Defendant)
Errol Vincent Pendergast (Second Defendant)
Representation:
Counsel:
D C Price (Plaintiff)
K Boettcher (Defendants)
Solicitors:
Robinson & McGuiness (Plaintiff)
Blaxland Mawson & Rose (Defendants)

File Number(s): 2024/433469
Publication restriction: No

JUDGMENT

The late Brian Patrick Pendergast (the “deceased”) was a grazier at Hobbs Range, Moonbah, a district which lies just South of Jindabyne in the Snowy Mountains of New South Wales. He died on 19 August 2023 aged 87 leaving a will dated 28 July 2015. The plaintiff, Karl Pendergast, is one of the deceased’s surviving children. The defendants, Lordona Pendergast and Errol Pendergast, are the named executors in the will. Lordona is another of the deceased’s children and Errol is the deceased’s brother.
The deceased was survived by three of his four children, Karl, Lordona, and Jeremy Pendergast. His fourth child, Dean Pendergast predeceased him. Dean was survived by two children and his wife, Tarina Pendergast. Probate of the will was granted to the defendants on 28 May 2024.
By his Summons dated 21 November 2024, the plaintiff, seeks declaratory relief in relation to the proper construction of the will and other consequential orders. Prayers for relief 2 and 4 of the Summons were pressed at the hearing. They sought the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pendergast v Shingles

Details

AGLC: Pendergast v Shingles [2025] NSWSC 909
Case: [2025] NSWSC 909
Decision Date: 13 August 2025

CaseChat Overview and Summary

In the case of Pendergast v Shingles, the deceased left a will that contained provisions intended to divide the estate after notionally augmenting its value to include the worth of certain real property that had been distributed to one beneficiary, the plaintiff, during the deceased's lifetime. The plaintiff argued that the will's provisions effectively divided the net value of the estate, ignoring the inter vivos distribution made to her, while the defendants contended that the will required the inter vivos distribution to be accounted for and deducted from the plaintiff's share. This dispute was brought before the court for resolution.

The central legal issue before the court was the interpretation of the will's provisions. Specifically, the court had to determine whether the will's provisions divided the estate's net value without considering the inter vivos distribution or whether they required the inter vivos distribution to be accounted for and deducted from the plaintiff's share. This interpretation hinged on understanding the structure and scheme of the will and the intentions of the deceased as expressed in the document.

The court examined the language of the will and the surrounding circumstances to ascertain the deceased's intentions. It found that the will's provisions, when read in the context of the overall scheme, suggested that the inter vivos distribution to the plaintiff was to be disregarded in the division of the estate. The court concluded that the will intended to divide the estate's net value without accounting for the inter vivos distribution. Therefore, the plaintiff's argument that the inter vivos distribution should be deducted from her share was not supported by the will's language or the context in which it was written.

The court ordered that the estate be divided according to the will's provisions, without deducting the inter vivos distribution from the plaintiff's share. The court's decision was based on a detailed analysis of the will's language and the intentions of the deceased as inferred from the document and its context. The defendants were directed to administer the estate in accordance with the court's interpretation of the will.

Orders