Cross and Cross

In the matter of *Cross and Cross*, Cronin J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a will. The applicant, the executor of the will, sought directions from the court regarding the distribution of the deceased's estate, specifically concerning a bequest to the respondent, who was the deceased's daughter. The core of the dispute lay in whether the respondent was entitled to receive the bequest outright or if it was subject to certain conditions or limitations.

The primary legal issue before the court was the construction of the relevant clause in the deceased's will. This involved determining the testator's intention as expressed in the testamentary instrument, particularly in relation to the nature of the interest granted to the respondent. The court had to consider whether the language used created a vested interest, a contingent interest, or a life interest, and whether any conditions precedent or subsequent were attached to the bequest.

Cronin J applied established principles of will construction, emphasising that the court's paramount duty is to ascertain and give effect to the testator's intention as revealed by the words of the will itself, read as a whole. The judge analysed the specific wording of the bequest, considering the surrounding provisions of the will to understand the context and overall scheme of distribution. The court found that the language used indicated a clear intention to grant an absolute interest to the respondent, with no conditions or limitations intended to restrict her entitlement.

Consequently, Cronin J ordered that the respondent was entitled to receive the bequest absolutely, free from any encumbrances or conditions beyond those ordinarily applicable to an executor distributing an estate.