Keeley v Brooking

The High Court of Australia heard an appeal in *Keeley v Brooking*. The dispute concerned the proper construction of a will and the entitlement of beneficiaries to certain assets. The primary issue was whether the testator's residuary estate should be distributed per stirpes or per capita.

The court was required to determine the meaning of the phrase "equally between them" in the context of a gift to named beneficiaries and their issue. Specifically, the court had to decide whether this direction indicated an intention for the estate to be divided equally among all beneficiaries, including the issue, or whether the issue were to take the share of their deceased parent.

The High Court held that the phrase "equally between them" in the context of the will indicated a per capita distribution. The court reasoned that where a gift is made to a class of persons, and the words used indicate equality of division amongst the members of that class, the distribution should be per capita unless there is a clear indication to the contrary. The presence of named beneficiaries alongside the mention of their issue did not, in this instance, displace the presumption of a per capita distribution.

The appeal was dismissed, with the court affirming the per capita distribution of the residuary estate.