Keighran v Bishop

These proceedings concern a claim by the plaintiff, Ms Barbara Keighran, for provision for her maintenance, education and advancement in life out of the estate and notional estate of her late husband, Mr Allan Robert Keighran, who died on 29 July 2023, aged 68. The defendant, Ms Michelle Bishop, is the executrix of Allan’s estate. [1] She is his eldest daughter and Barbara’s stepdaughter. Allan’s will, made about 3 weeks before he died, left everything to his 5 children in equal shares and nothing to Barbara.

The main asset of the estate is a half-interest in a property in Berkeley Vale, New South Wales, held as a tenant in common. The property is said to be worth between $850,000 to $950,000 and is subject to a mortgage securing a loan of $250,074.11 (as at 24 July 2025). Allan’s net interest is worth approximately $300,000 to $350,000.

The estate retains approximately $20,000 from a OnePath superannuation policy. Allan also apparently held 180 shares in IAG, said to be worth about $1,400. There is potential notional estate reflecting an amount of approximately $130,000 from Allan’s TWU Super account that has, in large part, been distributed for the benefit of some of Allan’s children.

Barbara seeks a family provision order to give her the benefit of the estate and the potential notional estate.

I have concluded that there should be a family provision order that provides Barbara with Allan’s interest in the Berkeley Vale property, but subject to a charge securing an obligation to pay to Allan’s estate the amount of $125,000 when the property is sold (or sooner at Barbara’s discretion). The $125,000 will be indexed. There will need to be orders concerning costs in due course.

The costs that have been incurred in these proceedings are significant. The plaintiff’s costs up to and including the final hearing were estimated to be $255,000 (including GST and disbursements) and the defendant’s costs were estimated to be $194,040 (including GST and disbursements). It causes a deep sense of disquiet to learn that the legal fees incurred in fighting over an estate approximate the size of the estate.

Allan is survived by his 5 children (Mr Dale Irvine, Mr Shane Keighran, Michelle, Mr Craig Keighran and Ms Bre‑Allan Woodleigh‑Keighran), his wife Barbara and his ex-wife, Ms Marilyn O’Malveney.

Dale and Shane are Marilyn’s children from relationships before her marriage to Allan. Allan adopted Dale and Shane in about 1976. Michelle, Craig and Bre‑Allan are children of Allan and Marilyn. Allan and Marilyn separated on a final basis in or about 1996.

Allan and Barbara married in 2005. They purchased their home in Berkeley Vale together as joint tenants for $580,000 in July 2017.

Allan was diagnosed with prostate cancer in early 2019. He underwent spinal surgery to remove a tumour from his spine in August 2022. He was unable to work after that time.

On 16 December 2022, Allan executed a will, appointing Barbara as sole executrix and giving the whole of his estate to her.

Between December 2022 and March 2023, Allan was admitted to hospital on a number of occasions. Allan was told at the end of this period that his drug trial would not be continuing and that no further treatment was available to him at the hospital.

Allan began living at Bre‑Allan’s home in March 2023. He lived there in order to facilitate the administration of a treatment called Gerson therapy. The therapy involves a specific organic vegetarian diet with nutritional supplements and coffee enemas. The evidence indicates that at least Bre‑Allan and Michelle were strong proponents of the therapy. Although various family members assisted in the administration of the therapy, most of the work fell to Bre‑Allan and her wife, Belinda. The work required to prepare and administer the therapy was time-consuming and placed a significant burden on Bre‑Allan and other family members. I accept that she and other family members genuinely believed that the therapy could prolong and improve the quality of Allan’s life. I also accept that Allan was, generally speaking, a willing subject of the therapy, and harboured some hope that it would provide a cure.

Barbara was not an advocate of the therapy. She was concerned that it would cause Allan greater suffering and offered him false hope. She did some research into the therapy and learned that the view of Cancer Research UK was that there was no scientific evidence to support the use of the therapy as a treatment for cancer and that in some situations the diet could cause severe side effects. However, she did not actively oppose the administration of the therapy over Allan’s wishes.

There was an incident on 20 April 2023 at Bre‑Allan’s home between Barbara, Bre‑Allan and Marilyn, when Barbara attended to visit Allan. The 3 participants gave different versions of the incident. It is unnecessary to make findings about what exactly occurred. It is clear that there were raised voices, insults and some physical interaction. Barbara reported the incident to the police. She requested an Apprehended Violence Order, but no order was made.

Before the incident, Barbara made visits to Allan at Bre‑Allan’s home. There is some dispute about the frequency and duration of the visits but no doubt that they occurred. Barbara stopped making regular visits after the incident. Her evidence was that she feared for her safety. Bre‑Allan and Michelle’s evidence was that Barbara stopped visiting because she did not want to help with the therapy and did not want to be there. There was evidence that Michelle and Bre‑Allan had offered to arrange for Barbara to visit Allan at times when no-one else was present in the house but that, apart from one occasion, Barbara did not accept the offers.

On the day of the incident, Allan rang Barbara and told her that he was sorry it happened and that it looked like a set up. Barbara responded, saying that she would never be able to go back there to care for him, which he acknowledged.

For a few weeks afterwards, Barbara and Allan exchanged text messages and voicemails, on almost a daily basis, that reveal that they continued to have a loving connection. For example, on 23 April 2023, Barbara texted Allan saying: “I love you. I hope you are ok and having a good day Xx”. On 4 May 2023, Allan concluded a message with “… Love you Gnite, & I miss You guys to the moon & back. I will be home soon. Help me, guide me home”. (The “guys” would have been a reference to Barbara and their pets.) This suggests a hope on Allan’s part that one day he could return to live with Barbara as husband and wife.

Barbara gave unchallenged affidavit evidence that after 17 May 2023, “it became increasingly more difficult to talk to Allan on the phone”. Still there were voicemails from Allan to Barbara. For example, on 19 May 2023, he left a voicemail beginning: “Hey, sorry I haven’t rung you…”, and concluding: “I’ll talk to you soon, love you”. On 27 May 2023, Allan concluded a voicemail by saying: “I love you, talk to you soon”. In early June 2023, Barbara texted: “Hope you are ok.” Allan replied: “Feeling good. Thanks”.

Nevertheless, there is evidence pointing to a growing fracture in their relationship, starting in about late May 2023.

Before Allan began living at Bre‑Allan’s home, Barbara and Allan operated joint banking facilities but it was principally Barbara who controlled financial matters. Sometime after he moved into Bre‑Allan’s home (and, based on bank statements, probably in late May 2023), Allan opened an ANZ Pensioner Advantage account in his sole name. There is evidence that Allan felt frustrated and embarrassed about not being able to have easy access to funds while he was living with Bre‑Allan.

Allan made a binding beneficiary nomination with TWU Super in Bre‑Allan’s favour, which took effect from 31 May 2023. Prior to that, Allan had made a binding beneficiary nomination in Barbara’s favour, effective from 21 February 2021.

On 19 June 2023, Barbara sent the following message to Allan:

Various messages then passed between Barbara and Allan. On 22 June 2023, Barbara texted Allan, stating: “We need to go through a solicitor from now on. Don’t contact me directly”. On the following day, Barbara texted Allan again in these terms:

On the same day, 23 June 2023, Allan executed a transfer severing joint tenancy in relation to the Berkeley Vale property, which was to take effect on 27 July 2023.

On 25 June 2023, Barbara texted Allan in the following terms:

Barbara’s evidence is that she was shocked when she learned about the severance, which came from a letter dated 27 June 2023 from the NSW Land Registry Services. Her evidence is that she was unable to talk to Allan about it because (so she believed) his family controlled his telephone.

On 4 July 2023, a letter was sent to Barbara from Madison Marcus, who were solicitors acting on behalf of Allan, regarding a “Family Law Matter”. It stated that Allan was seeking “an amicable and expedient resolution of the division of the matrimonial asset pool”. It also said that Allan considered that “the parties to have separated on 28 May 2023”.

On 6 July 2023, Allan executed a new will appointing Michelle as executrix and trustee of his estate. The will provided that the estate be divided equally amongst Allan’s 5 surviving children as tenants in common in equal shares. It revoked all prior wills and testamentary acts and included the following clause:

On 12 July 2023, a letter was sent from Barbara’s solicitors, Drake & Associates, to Madison Marcus replying to their letter of 4 July 2023. The letter raised concerns that Barbara believed that the alleged separation was “a sham brought about by the actions of her husband’s children and former wife coercing him and overbearing his will”.

On the same day, an amount of $6,255.66 was transferred from Allan’s ANZ Pensioner account to “Belinda Woodleigh‑Keighran”. This amount then appears in the account of Bre‑Allan and Belinda’s daughter (who is a minor), with details stating: “from MRS B A + MRS B L WOODLEIGH‑KEIGHRAN Ref: Save for Pa”. On 12 and 13 July 2023, $355 was transferred back to “MRS B A + MRS B L WOODLEIGH‑KEIGHRAN” in a series of small transactions. It appears that the reference to “MRS B A” is a reference to Belinda and the reference to “MRS B L” is a reference to Bre‑Allan.

Barbara gave unchallenged evidence that on 13 July 2023, she received a telephone call from Allan’s son, Craig, letting her know that Allan was at Wyong hospital and that if she wanted to say goodbye, she should go and see him. She went to the hospital and her unchallenged evidence was that there was a conversation as follows:

On the following day, Barbara received another letter from Madison Marcus, asking her to agree to the immediate severance of the joint tenancy, on the basis that Allan might “only have days to live”.

Later that day, Barbara again visited Allan. She gave unchallenged evidence that they had a conversation as follows:

There was no submission for Barbara that the letter from Madison Marcus had been sent on instructions from anyone other than Allan. At least Michelle was told at some stage that the joint tenancy would not be severed for another 2 weeks and there was a grave concern he would not live that long, but Michelle’s evidence was that “my dad hung on right to the hour”. I am satisfied that Michelle was involved in discussions with Allan’s solicitors but do not conclude that she procured the letter without any instructions from Allan. I am not prepared to conclude that Allan strived to live long enough to make sure that joint tenancy was severed.

On 25 July 2023, $94,441.97 was withdrawn from Allan’s TWU Super account. On 27 July 2023, that amount reached Allan’s ANZ Pensioner account. On that same day, $25,000 was transferred to “B L WOODLEIGHKEIGHRAN” from Allan’s ANZ Pensioner account. Though the moneys are transferred to “B L WOODLEIGHKEIGHRAN” and appear on their face to be transferred to Bre‑Allan, her evidence was that the moneys were initially transferred to an account that she had opened for her daughter. This is consistent with her daughter’s bank records which show her daughter receiving $25,000 “from Allan Keighran”. At this time, Allan was gravely ill.

The joint tenancy of the Berkeley Vale property was severed on 27 July 2023.

On 28 July 2023, a further $25,000 was transferred from Allan’s ANZ Pensioner account to “B L WOODLEIGHKEIGHRAN”. Once again, banking records suggest that this amount was transferred into an account in the name of Bre‑Allan’s daughter, with a reference “Save for Dad”.

Allan died on Saturday, 29 July 2023.

There is some dispute about Allan’s physical and mental state in the weeks and months before he died. He was largely bed-bound, but was well enough to attend his grandson’s 21st birthday celebrations for up to 2 hours in a wheelchair at a restaurant in the Sydney CBD in June 2023. He was taking prescription pain relieving medication and at times was in significant pain. One of his good friends, Mr Robert Spiteri, gave evidence that when he visited Allan in April 2023, and again on 14 July 2023, Allan was essentially unresponsive and “stared into space”. Mr Spiteri said he had difficulties trying to have a telephone conversation with Allan and he gave up trying to do so in about late May 2023. On the other hand, Bre‑Allan and Michelle gave evidence that while Allan had some dark and painful days, there were other days (up to 4 or 5 days before he died) when he rallied and engaged in happy conversation.

At the time of his death, Allan’s ANZ Pensioner account had a balance of $44,867.80. It appears that on the day Allan died (although it is not clear whether it was before or after his death), a transaction was made to transfer $25,000 from Allan’s ANZ Pensioner account to “B L WOODLEIGHKEIGHRAN”. Steps were taken to transfer a further $19,767.80 to “B L WOODLEIGHKEIGHRAN” on 30 July 2023, leaving a balance of $100. These amounts were all paid into Bre‑Allan’s daughter’s account.

A Centrelink payment of $802 was paid into Allan’s ANZ Pensioner account on 2 August 2023. On the same day, $802 was transferred to “B L WOODLEIGHKEIGHRAN”, but paid into her daughter’s account.

On 8 August 2023, TWU Super approved and paid Allan’s terminal illness claim of $33,577.20. It was paid into Allan’s ANZ Pensioner account that day. That same day, $25,000 was transferred to “B L WOODLEIGHKEIGHRAN”. The following day, $8,378.74 was transferred to “B L WOODLEIGHKEIGHRAN”. Once again, these amounts were paid into her daughter’s account.

In the period before and after Allan’s death, a total of approximately $130,000 was transferred from Allan’s ANZ Pensioner account into Bre‑Allan’s daughter’s account, with details recorded as to “B L WOODLEIGHKEIGHRAN”. Bre‑Allan’s evidence was that these transfers took place in accordance with her father’s wishes and as directed by Michelle (the executrix). Some of that money was then applied by Bre‑Allan for various purposes including:

The evidence indicates that there is also an amount held arising from a superannuation policy held with OnePath. It is currently held by Madison Marcus. Some $9,500 was used from that amount to pay fees to Madison Marcus. Michelle claims $1,244 for Court filing fees. About $20,000 remains in the account. This account was disclosed in the application for probate (with a balance of about $26,500). I have not attempted any kind of verification or reconciliation of legal fees or testamentary expenses.

Barbara seeks notional estate orders in respect of the $94,441.97 paid by TWU Super into Allan’s ANZ Pensioner Account on 27 July 2023 and the $33,577.20 paid by TWU Super into the ANZ Pensioner Account on 8 August 2023. It was accepted in submissions for Michelle that these amounts or funds are capable of being designated as notional estate, see Benz v Armstrong [2022] NSWSC 534 at [174]-[176].

Michelle submitted that nearly all of those funds had been transferred to Bre‑Allan and orders cannot be made in respect of property transferred to Bre‑Allan because she is not a party to the proceedings: see John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]-[133]. In Yee v Yee [2017] NSWCA 305 at [196] Gleeson JA observed (McColl and Simpson JJA agreeing): “… it is usual to join the legal owners of the notional estate as defendants, in addition to the joinder of the representative of the deceased’s estate”, the rationale being that “…where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined” (see John Alexander’s Clubs v White City Tennis Club at [131]). It was also submitted by Michelle that no notional estate orders should be made because the people who received the funds are not in a position to pay them back.

Barbara submitted that notional estate orders can be made in respect of the $40,000 that Bre‑Allan transferred to Michelle and that orders may also apply to money held in Allan’s bank account when he died and were wrongly paid out under Michelle’s direction as executrix (being amounts that formed part of Allan’s estate but were not identified as such by Michelle when obtaining probate or distributed in accordance with Allan’s will). In my view, apart from the money paid to Michelle, there is a formal difficulty in securing notional estate orders in this case because the persons who hold the property are not parties to the proceedings. I also note that while it appears that Michelle has directed that money be distributed otherwise than in accordance with Allan’s will, there is no challenge in these proceedings about the administration of the estate.

Barbara, as Allan’s spouse at the time of his death, is an eligible person who may apply to the Court for a family provision order in respect of the estate: Succession Act 2006 (NSW) s 57(1)(a). The claim has been brought within time: Succession Act s 58(2).

The Court may make a family provision order in Barbara’s favour if it is satisfied that, at the time the Court is considering the application, adequate provision for Barbara’s proper maintenance, education or advancement in life has not been made by the will: Succession Act s 59(1)(c). If so satisfied, the Court may make such order for provision out of Allan’s estate as the Court thinks ought to be made for Barbara’s maintenance, education or advancement in life: Succession Act s 59(2). In determining whether to make a family provision order and the nature of such an order, the Court may consider the matters identified in Succession Act s 60(2), appreciating that those matters provide guidance but are not exhaustive: Bohen v Mitchelmore [2024] NSWSC 171 at [20]. The jurisdiction is not exclusively needs-based: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 14 at [123].

The character of the relationship between Barbara and Allan before and at the time of his death is a relevant consideration, see Succession Act s 60(2).

Barbara and Allan were married for about 18 years before he died. I accept that for most of that period, the marriage was happy and committed.

Things changed in the last 4 months of Allan’s life, and particularly in the final 2 months. I have addressed the factual chronology above. Drawing those matters together, my findings are as follows:

It is important to consider the financial resources and financial needs of Barbara (the applicant) and Allan’s children (the beneficiaries under his will) and any disabilities: see Succession Act s 60(2)(b) and (f).

Barbara is 54. She is a hospitality worker earning $4,596 a month, after tax. She completed high school but has no other formal education or qualifications other than those needed to be a hospitality worker.

Barbara has a half-interest in the Berkeley Vale property, said to be worth between $425,000 and $475,000. Her share of the mortgage over the property is $125,037.05, giving her a net interest of about $300,000 to $350,000. She lives alone in the property. Since Allan’s death (and for a time before his death), the mortgage repayments and expenses have been met solely by Barbara. As at 24 September 2025, from the time since Allan died, she has paid $46,334.31 to the joint ANZ home loan account (reducing the principal owing by about $14,000). In that period, she paid approximately $10,000 to cover rates and insurance premiums. She has approximately $230,000 in a HostPlus superannuation account, household furniture estimated to be worth $5,000 and a Toyota RAV4 estimated to be worth $20,000. She has limited savings.

Barbara’s monthly expenses are estimated to be $3,935. This includes monthly mortgage repayments of $1,930, costs associated with owning the Berkeley Vale property such as utility bills and insurance, costs associated with owning a motor vehicle, groceries and medical expenses.

Barbara gave evidence that she takes anti-depressants, suffers high blood pressure and undergoes hormonal treatment. She gave evidence that due to her high blood pressure she cannot “do much exercise or lift heavy things”. This evidence was unchallenged.

Barbara has 3 sisters and her parents are alive. She has no dependants.

Michelle is 50. She is a food truck operator, having had a successful career as a television sports journalist. Her evidence is that she earns a gross income of $55,000 a year (which is significantly lower than the income she received until relatively recently as a journalist). Her husband, Justin, is a construction manager and earns a gross income of $220,000 a year. Together they also earn $99,000 a year in rental income.

Michelle and Justin have 3 children who are financially dependent on them.

Michelle and Justin own 3 properties together. They are worth an estimated $4,900,000. The properties are each subject to a mortgage. The amount outstanding on loans supported by the mortgages total $4,429,599. Michelle and Justin own 2 motor vehicles, together the vehicles are estimated to be worth $35,000; a food van worth $20,000 and a ski boat now said to be worth $5,000. They have $374,796 in a self-managed superfund.

Michelle and Justin’s monthly living expenses total $21,700, including general living expenses, school fees, utilities, mortgage repayments, insurance, motor vehicle expenses and phone/internet. General living expenses include a weekly incurrence of $90 a week for Michelle’s ongoing medical expenses.

Bre‑Allan is 45. She works part-time as a retail assistant/night fill, earning $2,076 a month, after tax. Her wife, Belinda, works casually as a dispatch officer earning $4,192 a month, after tax. Bre‑Allan and Belinda have a joint monthly income of approximately $8,168.80 (including various Centrelink payments).

Together, Bre‑Allan and Belinda own a home worth approximately $797,000. It has a mortgage of $607,125.49 secured against it (as at 24 September 2025). They have 2 motor vehicles, together said to be worth $32,920. They also own a caravan that was purchased after Allan died (using his money) for $40,000. A simple internet search undertaken by Belinda indicates it may now only be worth $30,000. I proceed on the basis that its value is likely to be somewhere between $30,000 and $40,000. Bre‑Allan has $70,000 in a HostPlus superannuation account. Belinda has $177,360.96 in an Aware Super superannuation account.

Bre‑Allan and Belinda have various liabilities, in addition to their mortgage, including various utility bills in arrears, a tax liability, a Centrelink over-payment and personal loans. The personal loans include $20,000 owing to Bre‑Allan’s grandmother and a further $20,000 to Belinda’s mother. These liabilities (excluding the mortgage) total $56,217.95.

Bre‑Allan and Belinda have 3 dependent children. There is medical evidence which suggests each of them has significant needs and require ongoing care. Bre‑Allan’s evidence is that the “expenses place significant strain on our family income” and that the “financial burden is ongoing and is projected to increase due to the continuing care needs of our children”.

Bre‑Allan gave evidence that the family’s expenses total $9,169.10 a month. This amount includes general living expenses, medical expenses, utility bills, mortgage repayments, insurance, motor vehicle expenses and phone/internet bills. Bre‑Allan was tested in cross-examination about the amount her family pays for phone and internet ($346.77 a month), as well as for electricity ($325 a month) but I accept her evidence – the amounts do not strike me as implausible.

Bre‑Allan gave evidence that her family’s net position each month is -$1,000.30.

There is also affidavit evidence that Bre‑Allan is in the process of undergoing further medical investigations into a health concern. There is uncertainty as to her prognosis. She anticipates further medical expenses depending on the outcome of the investigations. There is no evidence as to how much this may be. She was not cross-examined about this and it was not the subject of any submissions.

There is no doubt that Bre‑Allan’s efforts in caring for Allan in his last months required significant amounts of her time and that she suffered a significant emotional toll.

Dale is 55 years. He is employed as a truck driver, earning $5,200 a month. He was cross-examined about the possibility of income from illegitimate sources. He has been a member of the Hells Angels Motorcycle Club and was in prison for firearms offences in the first part of 2023. His evidence is that he has left the club and now lives a “pretty quiet life”. I accept his evidence that his only source of income is from working as a truck driver.

Dale is single and has 7 children. He lives with his brother, Shane, at a property owned by Shane’s sons. He pays $1,733.33 a month in rent.

Dale does not own any real estate. He owns a motor vehicle estimated to be worth $5,000 and a motorcycle estimated to be worth $9,500. He has $8,605.70 in an Australian Retirement Trust superannuation account. He has no liabilities.

Dale’s monthly expenses are estimated to be $4,420.99, which includes rent, general living expenses, utilities, child support, motor vehicle expenses and phone/internet. He has difficulties reading and is receiving medical treatment because “I put a nail through my eye”.

Shane is 53. He is presently unemployed. He had recently commenced casual employment as a labourer. However, his poor health has prevented him from undertaking any consistent work. Shane was diagnosed with Parkinson’s disease in 2018.

Shane previously worked as a council worker. At that time, his gross annual income was $67,877.16. However, due to his deteriorating health, he ceased that employment at the beginning of 2025. He has a pending application for a Centrelink disability pension. His grandmother has been assisting him to pay day to day living expenses.

Shane is separated and has 2 children. Shane previously owned real property. He recently sold the property to his sons as he could not service the mortgage. Shane continues to live at that property and pays $1,733.33 a month in rent. Shane was left with a surplus of $123,530.10 from the sale of the property. Shane has had problems with gambling addiction and this money has all been lost. Shane also received $50,000 as part of a family law property settlement. This money has also been lost through gambling.

A significant side effect of the medication Shane has taken to assist with his Parkinson’s disease, pramipexole, is the development of an impulse control disorder. This has likely contributed to his gambling addiction. The annual cost of Shane’s medical expenses is $5,200.

His annual expenses total $35,300, including rent, medical fees, utilities, health insurance and phone/internet.

Craig’s circumstances are unknown.

Relatively speaking (and excluding Craig), Barbara’s current financial circumstances are superior to those of Allan’s children, with the exception of Michelle.

There are many cases that address the claim of a widow for family provision orders. Barbara relied, in particular, on the statements of principle in Gargano v Coves [2018] NSWSC 985 at [160] and Steinmetz v Shannon at [104]-[109]. In Gargano v Coves, Hallen J observed at [160(a)]:

The cases relied on by Barbara do not lay down any inflexible rules – they provide at most guidelines. It has been said that: “the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims”: Cross v Wasson [2009] NSWSC 378; 2 ASTLR 201 at [98]; see also Bladwell v Davis [2004] NSWCA 170 at [1]-[2], [18]-[19]. The subject is also addressed at some length by J de Groot and B Nickel in Family Provision in Australia 6th ed 2021 at [4.2]-[4.11]. No 2 cases are exactly alike. There is no substitute for a consideration of the facts before the Court and a focus on the statutory language.

Barbara’s position is that orders should be made that give her Allan’s half-share in the Berkeley Vale property, as well as all of the property that she has identified as notional estate. That is, Allan’s children would be deprived of their entitlements under Allan’s will and would be stripped of certain other payments made before and after Allan died.

Michelle’s counsel submitted that it was anticipated that the Court would be moved to make an order for Barbara’s provision, given that she did not receive a property settlement prior to Allan’s death and in circumstances where the main asset is her principal place of residence, which is security for a mortgage being serviced by Barbara. It was submitted that the order could take the form of a Crisp order and referred to the following passage from Wertheim v Perpetual Trustee Company Limited [2021] NSWSC 1229:

It has been held that a Crisp order will usually be an unsatisfactory method of providing a spouse with accommodation, as explained by Hallen J in Sarant v Sarant [2020] NSWSC 1686 at [245]:

A Crisp order will usually result in an ongoing legal and practical connection between the plaintiff and those administering the estate, which may be undesirable when there is acrimony: see Life v Hall [2016] NSWSC 316 at [224]. A Crisp order may not be appropriate if it will deprive the plaintiff of appropriate independence, self-respect and autonomy: In the matter of the Will and Estate of Owen Charles Brown, deceased [2016] VSC 258 at [24].

One of the complexities that can point against a Crisp order concerns liability for outstanding debts on the property, upkeep, rates and insurance. In Prior v Kerrison [2017] NSWSC 1295, Rein J declined to make a Crisp order in circumstances where the plaintiff (de facto wife) would be a tenant of the property for a long period while the defendants (the children) would have the responsibility to pay the rates and insurance or maintenance, but had not been providing funds for those purposes.

The instances in which Crisp orders have been made were identified by Meek J in Tarbes v Taleb [2023] NSWSC 565 at [268] as:

Michelle submitted that an alternative to a Crisp order was a charge over the Berkeley Vale property in favour of the beneficiaries, to crystallise when the property is sold. It was submitted that the amount to be charged should reflect the unencumbered value of Allan’s half-share – put as $325,000.

Barbara and Allan were married when he died. Allan had initiated steps to divide the matrimonial asset pool. He achieved a form of division by severing the joint tenancy over the Berkeley Vale property. That took effect 2 days before he died. Some of his superannuation assets were also withdrawn and distributed before his death. There was otherwise no division of the matrimonial asset pool before he died.

There was a dispute about whether there had been a formal separation between Barbara and Allan before his death. Separation in the context of a marriage has been described by Watson J in In the marriage of Todd (No 2) (1976) 9 ALR 401 as follows at 403:

A separation cannot be assumed to sever a spouse’s testamentary obligation that, prima facie, arises from the bond of matrimony: Kalmar v Kalmar [2006] NSWSC 437 at [50]; Hart v McMinn at [89]. However, as Parker J observed in Alvarez v Matthews [2021] NSWSC 1551 at [79]-[80], separation will still be a factor:

I do not have to come to a conclusion about whether there was a formal separation between Barbara and Allan. What matters are the features of the relationship between them that inform any moral obligation that rested with Allan. I have addressed relevant aspects of their relationship earlier in these reasons. Allan took steps very late in his life that would mean that (subject to these proceedings), Barbara would get nothing instead of everything. He took those steps when he was frail and nearing death, and after residing away from Barbara, initially to facilitate a controversial cancer treatment. There is some unchallenged evidence that he told Barbara shortly before he died that he did not fully understand the steps he had taken to, in effect, disinherit her and would unwind things. But there is no doubt that he took the formal steps to see his assets go to his children and not to Barbara and did not reverse those steps before he died. It is impossible to know and dangerous to speculate about what would have happened between Allan and Barbara if his cancer had gone into remission or he was cured.

In severing the joint tenancy and changing his will to leave nothing to Barbara, Allan failed to make adequate provision for the proper maintenance and advancement in life of Barbara. He and Barbara had a long and, for the most part, happy marriage. It was marred in the last months of his life in exceptional circumstances. I do not consider that those circumstances were such that Allan could properly leave Barbara with no provision. The effect of his will would be that Barbara would, in all likelihood, be forced from the marital home that she and Allan acquired in 2017, and she would have limited financial resources to purchase a new residence.

However, it is important to recognise that there are strong competing claims. Allan’s children, particularly Bre‑Allan, Shane and Dale, have limited financial resources and have had personal and financial struggles in their lives. They are similar in age to Barbara and their likely future needs are not going to be easily met. Bre‑Allan, in particular, but also Michelle, devoted enormous energy in trying to help and support Allan during his final months. Allan’s illness and death took a toll on them. I consider that Allan had a moral obligation to his children, as well as to Barbara.

The small size of Allan’s estate placed limits on his capacity to make provision for Barbara and his children.

I do not accept that a Crisp order attaching (at least initially) to the Berkeley Vale property is appropriate. Various factors militate against it, including:

For these reasons, I do not consider that a Crisp order, which would give Barbara a “portable life estate” over Allan’s interest in the Berkeley Vale property is an appropriate means to make adequate and proper provision for Barbara. The only way to make adequate and proper provision is by Barbara taking the Berkeley Vale property in fee simple.

Barbara also opposes a charge being put over the Berkeley Vale property because of the estate’s modest size. It was submitted that Barbara requires the whole of the estate in order to help provide for her remaining years. Barbara’s claim for the total of approximately $130,000 paid from Allan’s superannuation indicates that she contends that this too is required to help her for her remaining years.

I do not think that orders should be made in Barbara’s favour that give her the whole of Allan’s estate. I conclude that she should have the Berkeley Vale property, but subject to an obligation to pay $125,000 to Allan’s estate when the Berkeley Vale property is sold (unless she chooses to pay the amount at an earlier date). That amount should be adjusted by CPI from the date the orders are made. The obligation will be secured by a charge. If the charge has not crystallised sooner, it will crystallise on Barbara’s death and the amount paid from her estate. Barbara will have responsibility for all outgoings in respect of the Berkeley Vale property, including mortgage payments.

Subject to what may arise in relation to costs, there will be no orders designating any property as notional estate. In my view, Barbara should not have any of the superannuation payments (which total approximately $130,000).

I have come to this conclusion having evaluated all the matters addressed in these reasons, particularly noting:

This means that Barbara will not have any of the approximately $130,000 of superannuation moneys that was paid from Allan’s ANZ Pensioner account (before and after he died) and will have an obligation to pay Michelle (as executrix) $125,000. She will not have a capital sum to help her to fund her remaining years. But I consider that nonetheless the orders I propose are the orders that should be made for her maintenance and advancement in life. Barbara will not be required to obtain access to and pay the money the subject of the charge in order to remain in the Berkeley Vale property. It is a burden that she can sustain without forcing her from the marital home. It will give each of Allan’s children a right to $25,000 (as adjusted) in due course. That may not be for many years, but that is the consequence of giving sufficient provision to Barbara to enable her to remain in the marital home. The estate retains the benefit of the $20,000 that remains in trust and there is no stripping of the other $130,000 that formed part of Allan’s superannuation entitlements.

Allan’s testamentary expenses were paid from his superannuation entitlements. That is where they should lie.

Allan’s net interest in the Berkeley Vale property is worth approximately $300,000 to $350,000. Some of that amount (approximately $7,000) reflects payments made by Barbara to reduce the size of the mortgage. Money in or from his superannuation accounts was approximately $150,000. Some of that money was spent on testamentary expenses and the estate’s legal fees owed to Madison Marcus. The amount distributed for the benefit of the beneficiaries was approximately $100,000 (net of testamentary and legal expenses) and there is $20,000 to be distributed. Taking a midpoint in the value of the Berkeley Vale property, the total value of Allan’s (actual and notional) estate potentially available to the beneficiaries and Barbara was in the order of $450,000. The effect of the proposed orders will mean that a little over half that amount will go to the beneficiary children ($100,000 already received, $20,000 remaining in an account, plus the $125,000 to be received), but Barbara has the considerable benefit of being able to stay in the Berkeley Vale property for as long as she wishes.

During cross-examination, Michelle gave evidence that Allan had said that he wanted to make sure that Barbara had half and that the “kids” would have the other half. It was submitted that what he meant was that Barbara would have the half of the house that was already hers and that Allan’s children would have the half that belonged to Allan (once the joint tenancy was severed). That may be what he meant, and is consistent with what he did. Nevertheless, an instinct of giving half of his estate to his children and half to Barbara (but with provision to enable her to remain in the Berkeley Vale property) is one that, in my view, properly accommodates the competing claims on his estate.

The orders I have proposed have been formulated without any consideration about the costs of these proceedings. No doubt, given the amount of costs that have been incurred, the impact of any costs order will be significant.

The parties are to provide to my Associate proposed short minutes of order that give effect to these reasons and provide for the determination of any outstanding issues as to costs by 4pm on 23 January 2026.