NSWNSWSC

Keighran v Bishop

[2025] NSWSC 1553

Supreme Court of NSW|2025-12-19|Before: Brereton J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-12-19

Before

Brereton J

Catchwords

SUCCESSION – family provision – where the plaintiff is the
deceased’s spouse – where the defendant is the
deceased’s
daughter and executrix – where the plaintiff seeks a family provision

Source

Original judgment source is linked above.

Catchwords

SUCCESSION – family provision – where the plaintiff is thedeceased’s spouse – where the defendant is thedeceased’sdaughter and executrix – where the plaintiff seeks a family provisionorder for her maintenance, educationor advancement in life – where thedeceased’s will left everything to his children – whether todesignate propertyas notional estate – where notional estate orders notgranted – where the plaintiff is entitled to a family provisionorder

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Keighran v Bishop [2025] NSWSC 1553

Hearing dates: 27 – 28 October 2025

Date of orders: To be made

Decision date: 19 December 2025

Jurisdiction: Equity – Probate and Family Provision List – Family Provision

Before: Brereton J

Decision: The plaintiff is entitled to a family provision order

Catchwords: SUCCESSION – family provision – where the plaintiff is the deceased’s spouse – where the defendant is the deceased’s daughter and executrix – where the plaintiff seeks a family provision order for her maintenance, education or advancement in life – where the deceased’s will left everything to his children – whether to designate property as notional estate – where notional estate orders not granted – where the plaintiff is entitled to a family provision order

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:

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:

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.

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.

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:
Barbara’s age: she is 54 and does not have a limited life expectancy;
a Crisp order would force Barbara and Michelle into a continuing relationship, perhaps for decades, when there is plainly animosity and resentment between them;
Michelle’s submission was that a Crisp order would provide for Barbara’s accommodation and also ensure the estate will ultimately revert to Allan’s children. But it is not clear how the order would work. Any Crisp order could only attach to Allan’s interest in the property, which is a half-interest. Barbara and the estate remain liable for the outstanding loan secured by the mortgage over the property. The mortgage obligations are being serviced by Barbara. It was not suggested that the estate would service any part of the mortgage into the future. It was not suggested that the estate would pay for any share of other obligations that attach to the land, such as rates or other taxes, insurance etc. It is not clear who would pay for repairs and maintenance. It would be unfair for Barbara to hold what is in effect a life estate but expect her to service the whole of the mortgage and cover all of the costs of maintenance etc. But there was no offer from the estate to make any contribution for those expenses, and it is doubtful if the estate has the financial ability to make any contribution; and
a Crisp order may deny Barbara the independence, self-respect and autonomy she deserves. She would have a much-restricted opportunity, for example, to sell the Berkeley Vale property and use the proceeds to fund her retirement.
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:
some of the Allan’s children are in a financial position that is inferior to that of Barbara’s and are in greater need than she is of financial assistance into the future. Barbara is similar in age to Allan’s children and, compared with some of them, she is financially secure and has better financial and health prospects;
while the circumstances that marred the final months of Allan and Barbara’s married life were exceptional, I accept that their marriage had largely broken down shortly before Allan died; and
the charge will keep Barbara and Michelle in a legal relationship but it is a simple one that should require minimal interaction or connection. If Barbara can pay the $125,000 (as adjusted), she can bring that relationship to an end. In the meantime, she is free to live at the Berkeley Vale property for as long as she wishes.
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.

Keighran v Bishop [2025] NSWSC 1553 | Case summary | Zoe

Keighran v Bishop

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction

The estate and potential notional estate

Summary of conclusion

Costs

Facts

Notional estate

Family provision

Allan and Barbara’s relationship

Financial resources, needs and circumstances

Current circumstances - Barbara

Current circumstances – Michelle

Current circumstances – Bre‑Allan

Current circumstances – Dale

Current circumstances – Shane

Current circumstances – Craig

Conclusion on circumstances

Family provision orders in respect of spouses

Weighing the relevant considerations

Orders

Endnote

Parties

Cases Cited (4)

Cited By (2)