Keep v Bourke

The appeal in *Keep v Bourke* concerned an application for provision from the estate of a deceased testatrix, brought by one of her three adult children. The testatrix had bequeathed her entire estate equally to two of her children, leaving the third child, the respondent, with nothing. The primary judge had made an order providing the respondent with a legacy of approximately one-third of the estate. The appellants, the beneficiaries under the will, appealed this decision.

The issues before the Court of Appeal were whether the primary judge had correctly applied the jurisdictional or "first stage" test for making an order for provision, and if so, whether the discretion exercised at the "second stage" of the assessment had miscarried. The "first stage" test requires the applicant to demonstrate that they are a person for whom the deceased ought to have made provision for their proper maintenance, education and advancement in life, and that the will fails to make adequate provision. The "second stage" involves the court determining the extent of provision to be made.

The Court of Appeal found that while the primary judge had correctly identified the respondent as a person for whom the testatrix ought to have made provision, the assessment of the amount of that provision at the second stage had miscarried. The court considered the long estrangement between the testatrix and the respondent, and the relative financial circumstances of the parties. The court concluded that the provision ordered by the primary judge was excessive, having regard to the overall circumstances and the need to balance the competing claims of the beneficiaries.

Consequently, the appeal was allowed. The order made by the primary judge was varied to reduce the respondent's legacy from $200,000 to $175,000. The appellants were awarded their costs of the appeal.