Pillinger v Lees (No 2) - [2025] NSWSC 97

Supreme Court

New South Wales

Medium Neutral Citation: Pillinger v Lees (No 2) [2025] NSWSC 97
Hearing dates: 30 October 2024
Date of orders: 25 February 2025
Decision date: 25 February 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
See [33]

Catchwords:
SUCCESSION – Family provision – Nature of Orders

Legislation Cited:
Succession Act 2006 (NSW) s 59

Cases Cited:
Pillinger v Lees [2024] NSWSC 1067

Texts Cited:
Nil

Category: Consequential orders
Parties: Anecia Pillinger (Plaintiff)
Lucille Janette Lees (Defendant)
Representation:
Counsel:
C Hodgson (Plaintiff)
M Pringle (Defendant)
Solicitors:
Glass Goodwin (Plaintiff)
VRT Lawyers (Defendant)

File Number(s): 2023/24751

JUDGMENT

In my reasons for decision delivered on 23 August 2024 (Pillinger v Lees [2024] NSWSC 1067), I found that the late Mr Pillinger had failed to make adequate provision for the plaintiff and that it would be appropriate to make an order under s 59 of the Succession Act 2006 (NSW) for further provision. I found that the adequate provision would comprise the sum of $1,500,000 for accommodation; a fund of $850,000 to produce income; and a fund of $400,000 for contingencies. I also found that the burden of that additional provision should be borne by the other beneficiaries of his estate, namely his children, disproportionately.
For the reasons I gave at paragraphs [152]-[162], I did not make final orders to give effect to my conclusions at the time. As I explained, the estate includes three residential properties in Balmain and a semi-rural property southwest of Sydney, each of which was specifically devised under the deceased’s Will: see paragraphs [8]-[10] of my initial judgment. The overall scheme of the Will was that each of the plaintiff and the other beneficiaries was to receive a particular property or share in a property.
However, the requirement to make further provision for the plaintiff (which no-one disputed) and the costs of the litigation mean that the beneficiaries are unable to receive their gift of property unless they are willing and able to contribute to the estate to meet their share of the costs of the litigation and other estate expenses and their share of the burden of further provision for the plaintiff. The financial situation of the beneficiaries means that this is unlikely to occur, which means that it is probable that the properties will need to be sold in order to administer the estate. That is something that the deceased did not wish to occur.
I suggested at paragraphs [152]-[162] that an appropriate order for further provision might, in these circumstances, involve a division of the estate in a way that was different to what was proposed in the Will but which would (a) partially accommodate the plaintiff’s need for further provision by the transfer of the Little Darling Street property, where she is already living, and (b) adhere, albeit only to an extent, to the deceased’s plan for the other Balmain properties to be inherited by his children.
I invited the parties to make further submissions on this issue, which they…

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 Pillinger v Lees (No 2)

Details

AGLC: Pillinger v Lees (No 2) [2025] NSWSC 97
Case: [2025] NSWSC 97
Decision Date: 25 February 2025

CaseChat Overview and Summary

The Court heard an appeal by the appellants, the deceased's daughters, against the respondent, the deceased's son. The deceased left behind a substantial estate, including a house, and executed a will that left the house to the respondent. The appellants contested the will, claiming that the respondent had unduly influenced the deceased. The Family Provision Act 1982 (Qld) was invoked, and the appellants sought an order for reasonable financial provision to be made for them from the estate. The primary judge found that the deceased had made the will of their own volition and dismissed the appellants' claim. The appellants appealed to the Court of Appeal.

The central legal issues were whether the deceased had been unduly influenced in making the will and, if so, whether the appellants were entitled to a greater share of the estate under the Family Provision Act. The Court of Appeal had to consider the evidence presented and determine if the deceased's will was a product of their own free will or if it was influenced by the respondent. The Court also needed to assess if the appellants' claim for reasonable financial provision was valid and, if so, whether the primary judge's order was appropriate.

The Court of Appeal found that the deceased had made the will of their own volition, without undue influence from the respondent. The Court examined the deceased's relationship with the respondent and the context in which the will was made, concluding that the deceased had a clear intention to leave the house to the respondent. The Court also held that the appellants' claim for reasonable financial provision was not substantiated by the evidence. The Court of Appeal dismissed the appeal, affirming the primary judge's decision. The deceased's will stood, and the appellants' claim for a greater share of the estate was denied. The Court of Appeal made no further orders regarding the estate.

Orders