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Category: Principal judgment

Parties: Tianna-Marie Barlow (Plaintiff)
Georgina Briana Barlow (First Defendant)
Shauntelle Jean Barlow (Second Defendant)
Louise Caroline Eunice Barlow (Third Defendant)

Representation: Counsel:
J E F Brown (Plaintiff)
D C Price (Defendants)
Solicitors:
August and Claire Lawyers (Plaintiff)
Willis & Bowring (Defendants)

File Number(s): 2025/00031198

Publication restriction: Nil

JUDGMENT

1. Tianna-Maree Barlow (Tianna) is a granddaughter of the deceased, Terrence John Barlow (Terrence), who died on 2 February 2024. She seeks provision from his estate under the Succession Act 2006 (NSW) (the Act). I refer to the family members by their first names meaning no disrespect.

2. Terrence’s estate is worth at least $5,645,000, consisting primarily of the family home located in Burraneer, NSW worth about $4,750,000 and a holiday home in Shoal Bay, NSW worth about $900,000.

3. Terrence’s wife, Fay Maree Barlow (“Nan”), died on 23 February 2021. Because Nan predeceased him, the effect of Terrence’s will, dated 5 February 2020, was to leave his estate as follows:

4. $200,000 to his eldest daughter, and Tianna’s mother, Liza-Maree Phyllis Barlow (Liza) (on the condition Liza did not contest his will), to be paid out of his Shoal Bay property; and

5. The remainder, which includes his Burraneer property, divided between Terrence’s other three daughters, Georgina Briana Barlow (Georgina), Shauntelle Jean Barlow (Shauntelle) and Louisa Caroline Barlow (Louisa), as tenants in common. These daughters are Terrence’s executrices. Probate was granted to them on 4 November 2024.

6. In his will, Terrence explained the discrepancy in the bequest to Liza by stating that she was estranged from him for the last 20 years. Terrence did not leave anything to Tianna, or any of his other 3 grandchildren.

Issues in dispute

5. I accept that Tianna is an eligible person within the language of s 57(1)(e) of the Act.

6. First, Tianna is Terrence’s granddaughter for the purposes of s 57(1)(e)(ii) of the Act.

7. Secondly, I consider that Tianna was at least partially dependent on Terrence for certain periods of time, for the purposes of s 57(1)(e)(i) of the Act.

8. A finding of dependency for the purposes of s 57(1)(e)(i) does not involve finding that Terrence stood in loco parentis to Tianna at the relevant time; accepting that a deceased standing in loco parentis may be indicative of the requisite dependency: see Howitt as Executor of the estate of the late Margaret Norma Howitt v Bosschieter [2025] NSWCA 179 at [66]-[71] (Free JA, Ward P and Kirk JA agreeing). Dependency may exist irrespective of whether the dependent person is financially or physically able to support themself: Tobin v Ezekiel (2012) 83 NSWLR 757 at [110] (Meagher JA) (Tobin); Ball v Newey (1988) 13 NSWLR 489 at 491-492 (Samuels JA, Hope JA agreeing). However, the reasons for and circumstances of the dependency are relevant when considering what claims the dependent has on the bounty of the testator: Tobin at [110].

9. For some time, Tianna did rely on Terrence for the “satisfaction of some need”, namely, accommodation in the family home: Tobin at [109] (Meagher JA); Angius v Angius [2025] NSWCA 113 at [20] (Mitchelmore JA, Bell CJ and Ball JA agreeing) (Angius).

10. In circumstances where Tianna would be an eligible person by reason of s 57(1)(e) of the Act, it is appropriate to consider Tianna’s dependency on Terrence alongside factors which may warrant the making of an application for provision for the purposes of s 59(1)(b) of the Act.

11. Therefore, the issues which are to be determined are:

12. Are there factors warranting the making of Tianna’s application for provision and an order for such provision?

13. If provision should be made from Terrence’s estate, what is the nature of that provision?

Factors warranting Tianna bringing an application for family provision?

12. Tianna must establish as a jurisdictional fact, that having regard to all the circumstances of the case (whether past or present), there are factors which would warrant the making of an application for family provision: s 59(1)(b) of the Act; see also Yee v Yee [2017] NSWCA 305 at [112] (McColl JA, Gleeson and Simpson JJA agreeing). The “factors” contained in s 60(2) of the Act may be considered by the Court for the purposes of making any order for provision: s 60(1) of the Act; see also Lodin v Lodin [2017] NSWCA 327 at [5] (White JA) and [114] (Sackville AJA).

13. The parties accepted that a useful guideline or touchstone for claims by grandchildren is provided in the decision of Hallen AsJ in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] (Bowditch):

(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased’s testamentary recognition.

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.

14. Those guidelines “may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’”: Chapple v Wilcox (2014) 87 NSWLR 646 at [67] (Barrett JA, Gleeson JA agreeing) (Chapple).

15. Tianna submitted that there are factors warranting an order for provision because her dependency on Terrence for accommodation and some financial assistance was coupled with Terrence being in loco parentis during her life until his death. She expressed the submission variously as:

16. Terrence and Nan “formed the stable parental unit upon which she relied, first during her infancy and serious illness, and later from the age of 15 until his death”.

17. It was a “significant factor” that she resided with her grandparents and that Terrence had assumed “for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare … or undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally”.

18. There were two periods of time during which Tianna lived in Terrence’s Burraneer property: when she was born, and later, from when she was about 15 years old. It is necessary to consider Tianna’s alleged dependence on Terrence during those periods. Further, Tianna also claimed that Terrence’s support remained substantial even when she was living elsewhere with her mother, Liza. Tianna’s dependency during each period is considered below, including whether Terrence was in loco parentis.

Relationship during Tianna’s baby years – 1999-2003

17. In 1989, Terrence, Nan, Liza, Louisa, Shauntelle and Georgina moved into the Burraneer home.

18. On 7 April 1999, Tianna was born to Liza, who was aged 17 at the time. Liza and Tianna lived with Terrence, Nan, Louisa, Shauntelle and Georgina at the Burraneer home until Tianna was about 4 years old.

19. Tianna accepted that when she was young, Liza determined where she lived. During that time, Tianna required various heart surgeries. Nan assisted with the medical appointments and Terrence paid for them.

20. Tianna submitted that Terrence and Nan were her parental figures and she was dependent on them during those early years because Liza was so young. However, she accepted that she had no personal memory of those years. Her aunts’ evidence was that the whole family was involved in caring for Tianna; Liza did provide care, but not all the care. Nan moved downstairs in the property (where Liza and Tianna’s bedroom was) to help care for Tianna, and Tianna’s aunts helped also.

21. All witnesses accepted that Terrence was “old school”, not particularly affectionate, and quite critical of all family members. I accept it is unlikely that Terrence provided much “hands on” care for Tianna during her baby years. Georgina’s unchallenged evidence was that Terrence said to Liza “on an almost daily basis … She is your daughter, you need to look after her”.

22. However, I consider for those years, Terrence provided support to Tianna in the form of accommodation to her (and Liza): see eg Spata v Tumino (2018) 95 NSWLR 706 at [75]-[84] (Payne JA, Macfarlan JA agreeing) (Spata) (and cases cited there). Further, Liza was not called to give evidence, including the extent to which she made decisions for Tianna’s care and welfare. While finely balanced on the sparce evidence, I consider that Terrence was in loco parentis for that period, perhaps unwillingly so, and that Tianna was at least partially dependent on him during those years.

23. In about 2003, Liza moved out with Tianna; Liza never returned to live in the family home.

Relationship when not living at Burraneer – 2003-2015

24. Tianna’s evidence was that between 2003 and 2015 when she lived with Liza, the “parental relationship” with Terrence continued. She claimed she saw her grandparents weekly, and they assisted Liza financially, including paying for school and other expenses. Tianna’s evidence was that her grandparents paid more than her mother for Tianna’s expenses, without giving a basis for that evidence, which I do not consider carries much weight.

25. Tianna’s evidence does not provide detail of the amount of Terrence’s financial assistance to her during this period. Nan and Terrence did not share their finances; they both had aged pensions.

26. Shauntelle’s unchallenged evidence was that Nan, not Terrence, provided Tianna with money, but they both “assisted” with Tianna’s expenses. Her aunts considered that Liza used her children as bargaining chips; she would allow Nan to see the children if Nan provided her with money and/or if Nan bought her a fridge or a lounge. Georgina’s unchallenged evidence was that Nan got a job at McDonalds and gave Liza most of the money. It is not clear, on the evidence, how that money was spent. Further, it appears that Nan provided some after school care, as many grandparents do.

27. Tianna submitted that during this period, her dependence was partial rather than exclusive, but it was “regular, substantial and directed to essential needs”. I do not accept that has been substantiated. None of the alleged “needs” have been specified with any clarity, including the quantification of the financial assistance. I consider that it is more likely Terrence and Nan were generous and provided gifts, as might be expected in a typical grandparent/granddaughter relationship. Mere family relationship and even “voluntary support, generosity and indulgence” by a grandparent does not convert that into a relationship of obligation: see Bowditch at [113(d)], [114] (and relevant citations there). Further, whilst gift giving may coincide with dependency, dependency does not arise where significant or even regular gifts are given during the deceased’s lifetime: see eg Bowditch at [113(e)], [114] (and citations there). There was not cogent evidence of Tianna staying at Burraneer more than very irregularly during this period, consistent with a grandchild staying occasionally with a grandparent.

28. It follows I do not accept Terrence was in loco parentis during this period.

Relationship from 2015 - Tianna living in Burraneer

29. In 2015, when Tianna was 15, Liza asked her to leave home. Tianna returned to live with her grandparents in Burraneer as she did not “really have any options”. At about that time, she had a boyfriend and stayed with his family at their home several nights per week; Shauntelle’s evidence was that she was there every night and had moved out there. That relationship with her boyfriend continued while Tianna was at school. She left school at the age of 17 and obtained fulltime employment at a solicitor’s firm and moved out of Burraneer and rented a property in Cronulla with a friend for about 10 months. Her evidence was that she was made redundant from the firm and left that accommodation and returned to Burraneer; during cross-examination, she agreed that returning to Burraneer was an “economic decision”.

30. It therefore seems that Tianna did not behave as if she had a father-daughter relationship with Terrence from 15 to when she became an adult, because she was hardly living at the Burraneer property. She also gave no evidence of particular and regular interactions with him that could lead to such a conclusion of a close relationship beyond that of grandfather-granddaughter.

31. Shauntelle’s uncontested evidence was that Terrence did not agree to Tianna moving back into the Burraneer property, but Nan wanted her to. There was otherwise no evidence of the role Terrence played, if any, in the decision to allow Tianna to live at the home and for how long: see eg Spata at [86]-[87] (Payne JA, Macfarlan JA agreeing).

32. I accept that from 2015 Tianna’s grandparents provided her accommodation and board when she wanted it, without requiring payment; they and Tianna’s aunts paid household expenses, supplied meals, groceries, clothing and other necessities. Terrence and Nan did most of the cooking and chores for the household. It would appear that the family’s arrangements did not change after Tianna moved back into the home, including the payment of bills and groceries and delegation of domestic chores as between those already living in the house (including Georgina, Louisa and Shauntelle). I consider that Terrence, as well as the other members of the household, extended generosity and indulgence to Tianna. Whilst Tianna was seemingly a member of that household upon moving back in, this is not enough; specific proof of a relationship of dependency is required: Broadus v Cradduck [2025] NSWSC 402 at [80] (Lindsay J).

33. Terrence also gave Tianna approximately $100 every month or so for an undefined period starting when she was aged 15 for food, clothing and activities with friends. However, at all times, Tianna was working. It is unclear exactly what she did with her own money, but she did sometimes purchase additional groceries for herself. I consider that this small amount of money was Terrence indulging Tianna with financial assistance to meet certain living expenses, and it appears each of the family members residing in the home provided generosity and assistance to each other: Bowditch at [113(d)], [114] (and citations there); see also Chapple at [98] (Barrett JA, Gleeson JA agreeing).

34. Following Nan’s death in February 2021, Tianna submitted that her day-to-day dependence on Terrence reduced. A balanced reading of the evidence indicates that it was Nan who was generous to Tianna, more than Terrence: for example, she allowed Tianna to use her credit card when Tianna asked, but told her not to tell her aunts.

35. I do not consider the fact that Tianna and Terrence exchanged occasional cards or gifts (such as a twenty-first birthday gift of a family necklace) meant the relationship was more than one of granddaughter-grandfather: see eg Bowditch at [113(e)], [114] (and citations there). The same is true of the fact that on occasion Terrence disciplined Tianna; he was critical of the whole family. I do not consider a grandfather chastising a granddaughter means he was acting in loco parentis.

36. Tianna’s relationship with Terrence and assistance she may have given him in his later years is disputed. Her unchallenged evidence was that she took Terrence shopping and to medical appointments, assisted with his ophthalmology appointments and sometimes drove him to the beach for companionship. She said in the weeks before his death, when he became frail, she assisted him to shower or bathe, use the toilet, dress and attend to his personal needs, and kept him company. However, her aunts’ unchallenged evidence was that Tianna provided very limited support, did not take him to the beach because he was scared of her driving and most assistance came from them.

37. Even if Tianna engaged with Terrence the way she claimed, I do not consider that conduct demonstrated a child-parent bond, or a “special closeness” or care which goes beyond the affection naturally occurring between grandparents and grandchildren, such as to warrant a departure from prevailing community standards that a grandparent has no responsibility to make provision for a grandchild: see Bowditch at [113(c)], [114] (and citations there); see also Chapple at [96]-[98].

38. Further, Tianna gave evidence that Terrence would tell her that he loved her when she was sad, and that he often gave her hugs. She also gave evidence that Terrence and Nan would provide her with relationship, friendship and school advice inter alia, and that she went with Terrence went to the beach and “bond[ed] over the water, music and boats”. I do not consider that this demonstrates an emotional bond or “special” closeness which goes beyond that which naturally occurs between grandparents and grandchildren. I do not consider it unusual for a grandparent to form a bond with their grandchild over common interests, or to express affection particularly when a grandchild is sad. Neither is it enough to say that Tianna considered Terrence a “fatherly figure” or that she gave Terrence Father’s Day gifts and cards to lead to a finding that Terrence was in loco parentis.

39. Even in circumstances where widely held community standards would expect a grandparent to make some provision for a grandchild, with whom they maintained a strong relationship, the fact that a grandchild is a mature adult is to be considered: Chapple at [14] (Basten JA).

40. I do not accept the relationship between Terrence and Tianna rose to the level of in loco parentis from 2015. From then, while Tianna was at school, she was mostly with her boyfriend’s family. After school, she moved out, but also took advantage of her grandparents’ generosity in allowing her to stay, rather than demonstrating a particularly close relationship. Tianna did not give evidence that she could not move back with her mother or live elsewhere after school.

41. I consider the relationship was consistent with that of a grandfather and granddaughter, no more.

What provision ought to be made?

42. Meek J summarised what ought to be considered in making an order for provision in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222] (and citations there) (Tarbes).

43. Section 60(2) of the Act sets out matters to which the Court may have regard for the purposes of determining whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made in the will (s 59(1)(c)), and if so, what order for such provision ought to be made (s 59(2)). This requires an evaluative judgment: see Spata at [112]-[115] (and citations there) (Payne JA, Macfarlan JA agreeing). The parties made submissions in relation to some, but not all s 60(2) factors, which I consider below.

Tianna’s current “needs”

44. Tianna is currently 27 years old and earning $4,342.16 per month in her current fulltime job. She was promoted to store manager during the course of this litigation.

45. She claims she has a monthly shortfall of expenses over income of $567.33 based on the following table of expenses:

| A. | Food & Beverage | $1,000.00 | | B. | Retail & Personal | $1,500.00 | | C. | Mobile Phone – Optus | $35.00 | | D. | Gym membership – Anytime Fitness | $138.45 | | E. | Medical & Hygiene | $530.00 | | F. | Subscription Services | $67.00 | | G. | Transport & Travel | $900.00 | | H. | Revenue NSW Debt repayment | $100.00 | | I. | Entertainment | $300.00 | | J. | Health Insurance ($78.24 per week) | $339.04 | | Less | Income | ($4,342.16) | | Deficiencies total (per month) | $567.33 |

46. It is difficult to have confidence in Tianna’s expense figures on the face of them, even though they were not challenged in cross-examination. The figures in this table differ from the figures Tianna included in her first affidavit from a year earlier and no clear explanation for the changes has been provided. For example, inadequately explained differences include:

47. Originally, she claimed she spent $100 per week on public transport to get to work, and in the above table it increased to $900 per month for “Transport & Travel” without explanation.

48. Health insurance was originally claimed at $35 per week, but her final claim was for $78.24 per week (that is an unexplained “upgrade”), “for peace of mind”; this has been included as if it is a current expense, even though she does not appear to currently have private health insurance. If that is removed as a current liability, Tianna’s alleged monthly shortfall decreases significantly.

49. Her mobile phone claim was $200 per week, which changed to $35 per month.

50. It is unclear what her “medical and hygiene” expense of $530 per month is when her evidence is her prescription medication costs $9 and lasts a few months and her appointments are covered by Medicare.

51. If the health insurance and unexplained “medical” expenses (at $9 per month) are reduced, then, even with Tianna spending almost 75% of her income on food, beverage, retail, personal and entertainment (including unidentified subscriptions), she would have some savings each month.

Tianna’s claim

48. Tianna sought provision from Terrence’s estate for the following:

49. Between $550,000 and $1,000,000 to buy outright a 2-bedroom unit;

50. Between $28,490 and $55,500 to buy outright a new car for “more freedom”, when she currently uses public transport, and borrows Georgina’s car;

51. $11,127.65 to completely pay off a car loan for a car she no longer owns. It is unclear what efforts she has made to repay that loan;

52. $10,000 for IVF procedures, should she require them, if and when she decides to have a baby;

53. Alleged monthly shortfalls, as identified in the table above; and

54. A contingency fund of $150,000.

55. Tianna’s submission was that she was entitled to this provision because Terrence had a moral obligation to provide for her in his will based on these factors:

56. She was dependent on Terrence, particularly in relation to accommodation at various times, and going forward she is at risk of being evicted from the Burraneer property by her aunts (even though they disavowed that in cross-examination and have allowed her to live for free in the home for the last two years);

57. She was partially financially “dependent” on Terrence at various times, including the fact that she was not paying rent for her accommodation at the Burraneer home, and received payments of about $100 every month or so from Terrence for a period of time (though those cash payments appear to be an example of Terrence being generous and indulging Tianna with financial assistance).

58. She had and/or has the following needs:

(a) She did not finish high school and earns a minimal wage; (b) She has no savings; (c) She has a medical condition with her heart with an unknown prognosis; (d) She has no secure housing.

4. The estate was large and could provide for Tianna in addition to her mother and aunts.

5. Notably, in submissions, Tianna’s counsel submitted that I ought focus on the lowest estimates for an apartment and car, or alternatively, that it would be appropriate to simply order provision for contingencies of about $300,000.

6. Tianna has, in effect, made an “ambit claim” up to the time of closing submissions, claiming significant provision with a “misplaced sense of entitlement” and then, at the last hour, accepted that 25% or perhaps less would be appropriate: see eg Estate Ameisen*, (Dec’d)* [2020] NSWSC 528 at [75]-[77] (Lindsay J).

7. The estate submitted that any provision ought to be limited to paying off Tianna’s debts.

Assessment of claim for provision

53. For the reasons below, and in light of the discussion of factors warranting an application for provision (as above), I consider that Tianna is entitled to family provision, but that the provision is limited to a small sum, including for some contingencies.

54. Choosing to live rent free with minimal financial gifts: Tianna was living with Terrence at the time of his death and had been living with him as outlined above. She did not pay rent or board, but appeared to contribute in some ways to food bills. Her aunts also paid a lot of bills and provided her with financial support. It is unclear from Tianna’s evidence exactly what financial assistance Terrence provided her, and if there was financial assistance, it was minimal. For example, Tianna put it no higher than $100 per month when she was a minor, and does not suggest it continued into her adulthood. She appeared to accept that Nan provided her with money and that obviously stopped on her death.

55. While it was convenient for Tianna to live with her grandparents, because she did not pay rent or board, it does appear that she had other options at various times. For example, on her evidence, she stayed with her boyfriend’s family on various occasions, she moved out and rented an apartment with a friend for approximately 10 months, and she stayed with her cousin Rowan on at least one occasion. Georgina’s unchallenged evidence was Tianna stayed with friends, and continues to do so. Currently, Tianna is living rent free in Burraneer with her aunts.

56. Financial resources and e**arning capacity: Tianna had the financial ability to live away from Burraneer previously when working fulltime, as she did when she moved out to rent a place with a friend. She is now working fulltime and has been promoted to store manager recently. There is no suggestion she will not be able to continue to work fulltime for decades until retirement age. She has found the opportunity to engage in further study, but for reasons she does not fully explain, she did not complete those courses. She did not suggest that her non-completion was due to reasons of her finances or ill health. She could choose to enhance her skills and job prospects and in fact, Tianna has not claimed any provision for the purposes of further education and/or job upskilling. While she does not have savings, she had opportunities to save while living rent free, but appears to have chosen to spend all her salary on expenses beyond essential needs. She manages to have an overseas holiday each year.

57. The evidence of Tianna’s aunts was current as at July 2025 (and Shauntelle accepted she received an unidentified pay rise recently). That demonstrated that each works casually, and their incomes cover each of their monthly expenditures (noting that they live rent free in the Burraneer property). They do not have substantive assets (apart from Louisa’s superannuation account), and they each have some liabilities (notably, Shauntelle has a loan liability of $25,000).

58. While the aunts’ evidence was not updated and Tianna does not bare the onus of proving or cross-examining on her aunts’ financial positions, they are not making a claim for provision beyond what Terrence’s will has provided. Nevertheless, I cannot ignore the evidence that was presented, and even giving it less weight, I consider the more important factor is Tianna’s financial position and earning capacity. In all the circumstances I do not consider Tianna ought receive more than a small provision.

59. In passing, I reject Tianna’s counsel’s submission that Dimos v Burndred [2024] NSWSC 434 at [82] is somehow analogous, as that paragraph concerned evidence of the applicant’s financial position.

60. Size of estate: Tianna submitted that because it was a large estate there was “plenty to go around”. In Wright v Kennedy; Wright v Dundooga Pastoral Co Pty Ltd; Reynoldson v Wright; Garlick v Kennedy; Glass v Kennedy; Brown v Kennedy; Wright v Kennedy [2026] NSWSC 834 at [573] (and citations there) (Wright), Hmelnitsky J reiterated that the statutory provisions are applied consistently, irrespective of the size of the estate; however, where the estate is larger, the Court may make a more “liberal assessment of what is proper provision”. In such cases, “proper” provision may outweigh the bare notion of what would merely be “necessary” for their “adequate” maintenance, education and advancement: Wright at [573]. What is “adequate” in any given case may be more than merely “enough to survive” or “live comfortably” without provision; it may extend to consideration of matters which make life “more comfortable or to advance a person’s position in life”: see Tarbes at [231]-[232].

61. No obvious medical need: In terms of her heart condition, she provided no medical expert evidence. Her evidence is that she had operations as a child, and she sees a cardiologist once a year. That cost is paid by Medicare. There is no evidence of what it would cost if she paid privately for that consultation, including the cost if she had private health insurance. Her evidence is that her prescription medication costs $9 every few months. She has no current heart or other health concerns. She attends the gym and her doctor has advised her, “as long as [her] leg muscles are strong [her] heart is strong”. I do not accept that she requires financial provision for any current medical condition, nor that she requires provision for health insurance for life. I do not accept that Tianna has demonstrated that she will require IVF in order to fall pregnant, should she wish to, nor that provision should be given for that.

62. Terrence*’s testamentary intention**,* and moral duty to others: Adequacy of any provision is not simply determined by a calculation of financial needs; the size of the estate and others’ claims on it, and the relationships between the claimant and the deceased, ought to also be considered: Angius at [25] (Mitchelmore JA, Bell CJ and Ball JA agreeing) (and citations there).

63. Terrence’s testamentary intention was to leave his estate only to his surviving daughters and not any grandchildren. It is not suggested that Terrence did not satisfy his moral obligation to his children: see eg Angius at [23(c)], [25] (and citations there). While Tianna’s aunts’ evidence of financial circumstances was not detailed or current at the time of the hearing, there was no suggestion that they were independently well-off.

64. When he made his will in 2020, three daughters together with Tianna and Shauntelle’s daughter, Harper, were living in the house at Terrence’s pleasure. Just as a testator is expected to raise and educate children, but not provide for them until retirement: see eg Taylor v Farrugia [2009] NSWSC 801 at [58] (Brereton J) (Taylor), it should not be expected that a grandfather will do so for grandchildren. Whilst the particular circumstances of the case are relevant, including the assets and parties’ relationship, there is generally no expectation, for example, to provide an adult child with an unencumbered house: Bowditch at [111(b)], cited with approval in Chapple at [17]-[21] (Basten JA). It was not suggested that Terrence ever made any statement to Tianna that he would provide for her.

65. Relevant Aboriginal or Torres Strait Islander customary law: Tianna included in her affidavit that Nan was Aboriginal, and therefore that she is also Aboriginal. However, no submissions were made on how that factor ought to be taken into account for any provision.

Conclusion

66. Ultimately, the Court’s role is not to reward an applicant or to distribute the deceased’s estate in a way which is fair and equitable; the Court ought to go no further than the making of “adequate” provision for the “proper” maintenance, education and advancement in life of an applicant: Bowditch at [105]. The statutory balancing process still requires a determination of whether it is appropriate to make an order for provision in the circumstances, rather than make an order merely because the estate is larger than others: see eg Madigan v Love [2025] NSWSC 558 at [134] (Hmelnitsky J).

67. There was some debate about whether other persons had an obligation to provide support for Tianna, namely her parents. There was no evidence that they were providing substantial (or any real) financial support to Tianna after 2015. I am not asked to consider whether Tianna would have an entitlement to make a claim on her parents’ estates when they die.

68. Accepting that Terrence was in loco parentis for a short time during the baby years (together with Nan and Liza), he had satisfied any moral obligation to give her a “start in life” by providing free accommodation for many years, despite Tianna having fulltime employment. Tianna is not destitute: Taylor at [58] cited with approval in Bowditch at [111(c)]; she is now a store manager with no obvious impediments in life. She is managing to pay off her debts, for example, having been resourceful enough to organise a payment plan.

69. Having regard to all the matters above, as a “matter of evaluative judgment”: see Spata at [112]-[115] (and citations there), I will order a provision from Terrence’s estate in the sum of $125,000.

70. I do not consider it necessary to determine or otherwise to make an order as to how the estate ought to source Tianna’s provision.

Appropriate orders

71. The parties sought to be heard on costs after the publication of these reasons.

72. I make the following orders:

73. By 31 July 2026, parties are to provide to the Chambers of Peden J a single joint communication with either:

(a) Agreed orders to give effect to these reasons and all remaining issues including costs, for consideration in Chambers; or (b) Competing versions of orders, in which case the matter will be listed for directions on 4 August 2026.

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Amendments

28 July 2026

Amended case name on coversheet.