Cross v Wasson [2009] NSWSC 378

Cross v Wasson [2009] NSWSC 378

The will made inadequate provision for Mr Cross, given his age, financial situation, health, and absence of competing claims of comparable need. Neither the 1989 incident of domestic violence nor isolated hurtful comments constituted disentitling conduct. The cross-claim for specific performance was dismissed as no binding and immediately enforceable agreement existed, nor was any agreement releasing statutory rights approved or deemed fair and reasonable. Accordingly, provision for Mr Cross was ordered in the form of a 'Crisp' order, granting him security of accommodation and access to necessary care, funded from the estate during his lifetime, without depriving the daughters of eventual...

Jurisdiction
Australia
Judgment Date
12 May 2009
Procedural Posture
Family Provision Claim and Cross Claim / Final Judgment After Hearing
Outcome
Order for provision made in favour of plaintiff. Defendant's cross-claim dismissed.
Legal Topics
['family Provision' "testator's Duty" 'disentitling Conduct' 'undue Influence' 'binding Settlement Agreements']
['succession Law' 'equity'] ['family Provision' "testator's Duty" 'disentitling Conduct' 'undue Influence' 'binding Settlement Agreements']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Family Provision Claim and Cross Claim / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the provision for the widower, Mr Cross, under the deceased's will was inadequate for his proper maintenance and advancement in life" 'Whether any orders for proper provision should be made for Mr Cross' "Whether Mr Cross's conduct disentitled him from a grant of provision" 'Whether a binding and enforceable agreement was reached between the parties concerning marketing and sale of the property and settlement of claims' 'Whether the cross-claim should be specifically enforced']

Ratio Decidendi

The will made inadequate provision for Mr Cross, given his age, financial situation, health, and absence of competing claims of comparable need. Neither the 1989 incident of domestic violence nor isolated hurtful comments constituted disentitling conduct. The cross-claim for specific performance was dismissed as no binding and immediately enforceable agreement existed, nor was any agreement releasing statutory rights approved or deemed fair and reasonable. Accordingly, provision for Mr Cross was ordered in the form of a 'Crisp' order, granting him security of accommodation and access to necessary care, funded from the estate during his lifetime, without depriving the daughters of eventual...

Court Disposition

Order for provision made in favour of plaintiff. Defendant's cross-claim dismissed.

Orders

  • ["Mr Cross is granted provision by way of a 'Crisp' order, allowing him to live rent-free in the matrimonial home or to substitute equivalent accommodation as needed, funded from the capital and income forming part of the estate of Dulcie Joan Cross." 'The costs incurred by Mr Cross in the proceedings are to be paid...