Understanding a Testator's obligations

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Monday, 26 Oct 2026

When making a Will, a testator must consider who should be entitled to benefit from their estate. Barlow v Barlow,^[1] asked Peden J of the New South Wales Supreme Court to analyse the deceased’s last Will and estate and determine whether adequate provision had been made. Peden J considered the plaintiff’s right to make an application, if provision should be made to her and if so, then what is adequate. The case reinforces the obligations of a testator to consider who should benefit under their estate and if such benefit is adequate.

Summary of Facts

The plaintiff, Tianna-Maree Barlow was the granddaughter of the deceased, Terrance Barlow. The deceased died on 2 February 2024 leaving an estate worth $5.6M. The last Will was dated 5 February 2020 and left $200k to his estranged daughter Liza-Mareee (Tianna’s mother) on the condition that she did not contest the Will and the remainder of the estate was left to his other 3 daughters who were also the executors of the estate. The plaintiff made an application for a family provision order under the Successions Act 2006 (NSW),^[2] arguing she was eligible for a share of the estate as a dependent for a period.

The plaintiff sought provision for the following:

1. $550k-$1M to purchase a 2-bedroom apartment;
2. $28K-$55K to purchase a new car;
3. $11k to pay off a previous car loan;
4. $10k for IVF procedures if she was to have a baby;
5. alleged monthly shortfalls; and
6. contingency fund of $150k.

The plaintiff’s relationship with the deceased

The plaintiff was born on 7 April 1999, her mother was 17 at the time. Until the plaintiff was four, she lived with her mother at her grandparent’s house (including the deceased) and her three aunts. During this period, the deceased provided accommodation and financial support for everyday expenses and various medical expenses. Between 2003 and 2015 the plaintiff and her mother lived elsewhere. The plaintiff saw her grandparents on a weekly basis and the grandparents helped fund the plaintiff’s education and other expenses. In 2015, the plaintiff returned to reside at her grandparent’s house. For two years, she spent a majority of her time living with her boyfriend. In 2017, she left school for full-time employment. She moved out and lived with a friend for 10 months before being made redundant. She moved back in with her grandparents (including the deceased) rent and expense free together with a monthly provision of $100. Towards the end of the deceased’s life, the plaintiff provided evidence, contested, that substantial care and financial support was provided by her to the deceased.

The application:

To make an application for provision, you must be an eligible person as defined under section 57,^[3] which includes, at subsection 1(e) a grandchild or member of the household that was wholly or partly dependent on the deceased during such period.^[4] The parties accepted that while the deceased did not actively participate in the caring for the plaintiff, he did provide substantial financial support as outlined above.

The Court also found that the support provided towards the end of the deceased’s life was nothing more than a normal grandparent-grandchild relationship. However, the Court found that the relationship between 1999-2003 constituted partial dependency and the plaintiff was therefore entitled to make an application.

Issues

Having satisfied that the application was made by an eligible person, the Court was then asked to determine:

1. whether an order should be made in favour of the applicant for provision; and
2. what the nature of the provision should be?

Findings and reasoning

The Court found in favour of the plaintiff for $125,000. The deceased provided minimal financial support to the plaintiff and no emotional support with the plaintiff providing minimal support.

The Court considered the plaintiff’s current financial status, earning capacity (current and future), medical needs, rejection of further studies, as well as those of the other beneficiaries of the estate.

Section 60(2) provides the Court with various factors for consideration when determining if provision should be awarded.^[5] The plaintiff provided an affidavit outlining her financial expenses, which was subsequently amended based on a monthly shortfall of $560. This was rejected based on the questionable amendments.

The Court acknowledged the testamentary intention of the deceased to favour his three children, his estranged daughter (the plaintiff’s mother) and none of the grandchildren.  The Court found that whilst the plaintiff lived with the deceased at various points of her life, it was the grandmother that provided the vast majority of the support by working to provide further financial support, emotional and physical support. The Court rejected, post 2003, that there was a stronger emotional bond between the deceased and the plaintiff than that of a normal grandparent-grandchild relationship given it was established that emotional support, advice, bonding moments and financial support are all factors of a normal grandparent-grandchild relationship. It was further found that the plaintiff took advantage of the generosity of her grandparents and the reliance on her grandparents was mostly convenience.

Peden J agreed that there was a partial dependence which should be limited to a small monetary sum of $125,000.

Observations by the Court

The Court emphasised that a person does not need to be in loco parentis (meaning to assume the role of a parent without formal adoption) to be relied upon.^[6] Dependency is not based on titles but rather an analysis of individual circumstances. Furthermore, a person can be dependent on the deceased while being financially or physically self-dependent.^[7] A Court must understand the facts provided by an applicant and make an assessment of dependency based on the reasons and circumstances established.^[8]

When Peden J was making his decision, he referred to Hallen AsJ, who had previously examined the grandparent/grandchild relationship for a family provision application.^[9] The general rule of a grandparent owes no responsibility to make a provision for a grandchild. A family relationship, generosity of a grandparent (including contributions to education and health) and the providing of gifts were all noted as ordinary behaviours of a grandparent. For dependency to be found, evidence must be provided establishing that the grandparent held more of a position like that of a parent with evidence of continuous and sustainable responsibility for a child’s welfare and support.

Peden J reaffirmed the Courts role to provide no more than what is fair and equitable for the proper maintenance, education and advancement in the life of the applicant.^[10] This requires a determination as to what is appropriate rather than a judgement based on the size of the estate.^[11] However, where an estate is large in size, adequate provision may be based on what makes life more comfortable or advances the applicants position in life rather than provision purely for survival.^[12]

Significance

The case of Barlow v Barlow is an important reminder of the considerations a testator must make when providing instructions for the making of their last Will. A person’s last Will is not immune from being challenged just because it is validly made. The moral obligations of a testator are recognised by legislation and the Courts continue to demonstrate that they will determine adequate provision if a testator has not. A testator must consider who should benefit in addition to who they would like to benefit.

Where there is concern that someone may be eligible to make a claim on the estate, it is important to obtain legal advice from an experienced estate planning lawyer who will be able to identify potential challenge risks including who may be able to make a successful challenge.

Final thoughts and next steps

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