Recent procedural reforms in New South Wales have altered the management of probate and family provision proceedings. Practice Note SC Eq 7 requires early case management, oversight by the registrar, and stricter regulation of litigation costs. The Court of Appeal in Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118 confirmed that equitable presumptions relevant to inter vivos transactions do not apply to Will challenges.
The procedural reforms require practitioners to adjust their approach to estate litigation. Early and thorough evidence gathering is now required to support or defend claims. Contested issues should be identified promptly at the initial case management stage. Practitioners must provide clear and realistic cost estimates to ensure proportionality with the estate’s value. Diligent file management and readiness for early directions hearings are necessary to meet the Court’s emphasis on efficiency and cost control.
Practice Note SC Eq 7
The reforms reinforce the Court’s expectation that estate litigation proceed efficiently, proportionately, and on a sound legal basis. Practitioners should ensure careful Will drafting, maintain detailed file notes, assess claims promptly, and provide realistic cost advice. Familiarity with Practice Note SC Eq 7 and recent appellate decisions is now essential.
In practice, file notes after an initial conference should record advice on likely contested issues, estimated legal costs, and proportionality relative to the estate’s value. Written costs disclosures should specify that litigation costs may exceed a stated amount, note the risk of disproportionate costs if the matter proceeds to trial, and confirm that alternatives such as mediation and early settlement have been discussed.
Family Provision claim
Keighran v Bishop [2025] NSWSC 1553 concerned a family provision application by the deceased’s surviving spouse under the Succession Act 2006 (NSW). Mr Allan Robert Keighran, the deceased, was survived by his wife of 18 years, Barbara Lea Keighran (the plaintiff), five adult children (Mr Dale Irvine, Mr Shane Keighran, Michelle, Mr Craig Keighran, and Ms Bre-Allan Woodleigh-Keighran), and his former wife, Ms Marilyn O’Malveney.
Dale and Shane are Marilyn’s children from previous relationships, whom the deceased adopted in approximately 1976. Michelle, Craig, and Bre-Allan are the biological children of the deceased and Marilyn. The deceased and Marilyn separated permanently around 1996. The deceased married the plaintiff in 2005. In July 2017, the deceased and the plaintiff purchased a home in Berkeley Vale as joint tenants for $580,000
The plaintiff sought provision for her maintenance, education and advancement in life out of the estate and notional estate of the deceased, who died on 29 July 2023, aged 68. Michelle Bishop (the defendant) is the executrix of the deceased’s estate. The defendant is the deceased’s eldest daughter and the plaintiff’s stepdaughter. The deceased’s Will, made about 3 weeks before he died, left everything to his 5 children in equal shares and nothing to the plaintiff.
2022 Will
The deceased was diagnosed with prostate cancer in early 2019. The deceased underwent spinal surgery in August 2022 to remove a tumour from his spine and was unable to work after that. On 16 December 2022, the deceased executed a Will, appointing the plaintiff as sole executrix and leaving her the whole of his estate. Between December 2022 and March 2023, the deceased was admitted to hospital on several occasions. At the end of this period, the deceased was told that his drug trial would not continue and that no further treatment was available to him at the hospital.
2023 Will
In the months before his death, the deceased moved into his daughter Bre-Allan’s home for medical care. After a conflict among family members, the plaintiff ceased visiting. Three weeks before his death, the deceased executed a new Will appointing the defendant, Ms Michelle Bishop, as executrix and dividing the estate equally among his five children, with no provision for the plaintiff.
The deceased also severed the joint tenancy in the matrimonial home. After his death on 29 July 2023, the plaintiff commenced proceedings under the Succession Act 2006 (NSW), seeking provision from the estate and notional estate for her maintenance, education, and advancement.
Estate and Notional Estate
The principal estate asset was the deceased’s one-half interest as tenant in common in residential property at Berkeley Vale, New South Wales. The property was valued at $850,000 to $950,000, subject to a mortgage of approximately $250,000. The net value of the deceased’s interest was estimated at $300,000 to $350,000.
Other estate assets included approximately $20,000 from a OnePath superannuation policy and 180 IAG shares valued at about $1,400. The notional estate included approximately $130,000 from the deceased’s TWU Super account, most of which had already been distributed to some of his children.
Brereton J accepted that superannuation proceeds already paid could be designated as notional estate for the plaintiff’s claim. After considering the plaintiff’s needs and the interests of beneficiaries who had received distributions, his Honour declined to order provision from the notional estate.
The deceased’s Illness
The deceased received a diagnosis of prostate cancer in early 2019. After spinal surgery in August 2022 to remove a tumour, he was unable to resume work.
Between December 2022 and March 2023, the deceased was admitted to hospital multiple times. At the end of this period, the deceased was advised that his drug trial participation had ceased and that no further hospital treatment would be provided.
Gerson Therapy
In March 2023, the deceased relocated to his daughter Bre-Allan’s home to commence Gerson therapy. An alternative treatment involved a strict organic vegetarian diet, nutritional supplements, and frequent coffee enemas.
The evidence showed that Bre-Allan and the defendant supported the therapy and, with other family members, devoted significant time to its administration. Brereton J accepted that Bre-Allan and the defendant believed the treatment could prolong the deceased’s life or improve its quality, and that the deceased participated voluntarily in the hope of benefit.
The plaintiff did not share this view, her research found that Cancer Research UK had found no scientific evidence supporting the therapy and had warned of possible adverse effects. Despite the plaintiff’s scepticism, they did not oppose the deceased’s decision.
Altercation
On 20 April 2023, an altercation occurred at Bre-Allan’s home involving the plaintiff, Bre-Allan, and Marilyn during a visit to the deceased. The parties gave differing accounts. Brereton J found it unnecessary to determine the precise events but accepted that the incident involved raised voices, insults, and some physical contact. The plaintiff reported the matter to the police and sought an apprehended violence order. No order was made.
The plaintiff visited the deceased regularly at Bre-Allan’s home. However, following these incidents, these visits largely ceased. The plaintiff stated that she feared for her personal safety. The defendant and Bre-Allan contended that the plaintiff withdrew because she did not wish to participate in the deceased’s treatment or remain at the house.
The Court heard evidence indicating that arrangements were offered to enable the plaintiff to visit when others were absent, but the plaintiff accepted an invitation only once. The plaintiff stated they could not return to care for the deceased at that house, and the deceased acknowledged this.
The litigation resulted in legal costs estimated at $255,000 for the plaintiff and $194,000 for the defendant, inclusive of GST and disbursements. Brereton J observed that these costs were close to the value of the estate. Substantial legal expenses reduce the resources available for distribution to beneficiaries. The case highlights the need for proportionality in legal costs and efficient dispute resolution in estate matters.
Continuing Relationship
Despite the family conflict, the plaintiff and the deceased continued to exchange text and voicemail messages in the following weeks. These communications indicated that their relationship remained intact. The plaintiff frequently expressed concern for the deceased, who responded that he loved and missed her and hoped to return home soon.
The plaintiff’s unchallenged evidence was that after 17 May 2023, it became increasingly difficult to communicate with the deceased by telephone. The deceased continued to leave voicemail messages during May. In early June 2023, he replied to the plaintiff’s enquiry about his wellbeing, stating that he was feeling good. Although these communications indicated the relationship continued, the evidence showed that by late May 2023, it had begun to deteriorate.
Adequate Provision
In Keighran v Bishop [2025] NSWSC 1553, Brereton J found that the deceased had not made adequate provision for the plaintiff and ordered that the plaintiff receive the deceased’s interest in the Berkeley Vale property, subject to a charge requiring repayment of $125,000, indexed for inflation, to the estate upon sale or earlier if elected. Brereton J reserved the issue of costs for later determination.
The orders proposed have been formulated without any consideration of 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 Brereton J’s Associate with proposed short minutes of order that give effect to these reasons and provide for the determination of any outstanding issues as to costs by 4 pm on 23 January 2026.
Costs
Keighran v Bishop (No 2) [2026] NSWSC 748 considered costs following a successful family provision claim under the Succession Act 2006 (NSW). The judgment highlights the recurring issue of disproportionate legal costs in estate litigation, where the expense of proceedings approached the value of the estate.
The plaintiff obtained a family provision order after being excluded from the deceased’s Will, which left the estate to his five children. The principal asset in dispute was the deceased’s interest in the former matrimonial home at Berkeley Vale, valued at $300,000 to $350,000 after allowing for the mortgage. The Court awarded the plaintiff the deceased’s interest in the property, subject to an obligation to pay the estate an indexed amount of $125,000 upon sale.
Following judgment, the parties disputed liability for costs. Brereton J emphasised that:
- Legal costs of approximately $255,000 for the plaintiff and $194,000 for the defendant were grossly disproportionate to the modest estate.
- Family provision litigation should ordinarily settle well before trial.
Parties should make realistic Offers of Compromise or Calderbank offers to obtain costs protection.
Offers of Compromise
Practitioners can assist clients by
- outlining the strengths and weaknesses of the case,
- substantiating offers with cogent evidence, and
- ensuring that proposed figures reflect risks and likely outcomes.
Effective offers should set out
- the basis for the offer,
- specify what is being offered or sought, and
- clearly reference costs.
A realistic offer is one that a reasonable person, properly informed about the facts and law, might regard as a sensible resolution in light of likely outcomes, proportionality, and cost risk.
Detailed offers, supported by evidence and responsive to the other party’s position, are more likely to achieve cost protection if the matter proceeds to hearing.
Settlement Offer
In Keighran v Bishop [2025] NSWSC 1553 neither party’s settlement offer ultimately provided cost protection because the judgment fell between their respective offers. Brereton J observed (at [6]):
“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.”
Although successful, the plaintiff recovered less than sought, while the executor’s offer was also less favourable than the outcome. Accordingly, neither party gained any advantage from their settlement offers.
It is often said that costs in family provision cases generally depend on the
“the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.”
Singer v Berghouse [1993] HCA 35; 114 ALR 521 at 522 (Gaudron J).
The Court of Appeal has observed that the “overall justice of the case” is not remote from costs following the event. Jvancich v Kennedy (No 2) [2004] NSWCA 397 at [11] (Giles JA; Handley and McColl JJA agreeing).
Nevertheless, family provision cases call for additional ” liberality and discrimination” in considering whether to exercise the discretion to override the usual rule: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [138]-[139] (Barrett JA; Basten and Gleeson JJA agreeing).
The appropriate order is that the defendant, as executor, pay the plaintiff’s costs of the proceedings, with that obligation discharged by revoking the charge established by order 2 of the orders made on 26 February 2026. As a result, the plaintiff receives the Berkeley Vale property free of any charge. The value of the order is approximately $125,000. Brereton J believes it is a reasonable sum in the circumstances.
Applying the general rule that costs follow the event: see r 42.1 of the UCPR. Brereton J recognising the broader discretion exercised in family provision matters:
- the executor pay the plaintiff’s costs instead of requiring payment from the estate’s cash assets;
- the costs order would be satisfied by removing the $125,000 charge previously imposed over the plaintiff’s interest in the Berkeley Vale property;
- the plaintiff would therefore receive the property free of that charge
Brereton J recognised that executors are ordinarily entitled to indemnity from the estate for properly incurred litigation costs. That entitlement does not extend to unnecessarily expensive or acrimonious litigation, particularly where the estate is modest. His Honour observed that extensive affidavit evidence was prepared on issues that ultimately played little role at trial. The estate did not contain sufficient funds to meet the executor’s costs. Brereton J noted there may have been potential claims concerning those transactions, but these were not determined in the proceedings.
Estate Administration
Unresolved transactions or potential claims during estate administration can
- create uncertainty for executors and beneficiaries,
- increase the risk of further litigation, and
- delay finalisation of the estate.
Asset transfers, testamentary dispositions, and transactions before death should be reviewed. Where potential claims are identified, practitioners should provide clear advice on possible consequences and the need for resolution. Early resolution helps avoid disproportionate legal costs.
Offers of Compromise and Calderbank offers remain the primary mechanisms for obtaining costs protection.
Success in family provision proceedings does not automatically justify indemnity costs. Executors have a right to indemnity from the estate for properly incurred costs, but not for unnecessarily costly litigation. The Court will exercise its broad discretion to achieve the overall justice of the case, particularly where strict application of the usual costs rules would produce an unfair outcome. High legal costs can erode modest estates and reduce the resources available for distribution, regardless of the substantive outcome.