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Cross v Wasson

Cross v Wasson

Case [2009] NSWSC 378 12 May 2009

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CITATION: Cross v Wasson [2009] NSWSC 378

HEARING DATE(S): 27 and 28 April 2009

JUDGMENT DATE :
12 May 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

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

CATCHWORDS: SUCCESSION - family provision and maintenance – deceased left estate to four daughters – no provision made for widower – half interest in matrimonial home comprised bulk of the estate – whether provision for widower inadequate – whether any orders for proper provision should be made – relevance of alleged disentitling conduct – held that provision for widower inadequate – neither isolated incident of domestic violence nor instances of hurtful comments amounted in the circumstances to disentitling conduct or warranted reduced order for provision – provision ordered by way of Crisp order.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: B Seppelt & Son Limited v Commissioner for Main Roads (1975) 1 BPR 9147
Bartlett v Coomber [2008] NSWCA 100
Bladwell v Davis [2004] NSWCA 170
Blore v Lang (1960) 104 CLR 124
Carr-Glynn v Frearsons [1999] Ch 326
Court v Hunt NSWSC, 14 September 1987; BC 8701155
Field v Inglis, unreported, 8 November 1993 Master McLaughlin
Foley v Ellis [2008] NSWCA 288
Golosky v Golosky [1993] NSWCA 111
Hertzby v Hertzby [2003] NSWCA 311
In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318
M A Bourke (deceased) and the TFM Act [1968] 2 NSWLR 453
Maria Lourdes Farr v Gregory Hardy & 2 ors [2008] NSWSC 996
McMahon v McMahon NSWSC, unreported, 2 August 1985
Murphy v Stewart [2004] NSWSC 569
Nicholls v Hall [2007] NSWCA 356
Radzyminski v Radzyminski [2008] NSWSC 239
Samsley v Barnes (1991) DFC 95-100; [1990] NSWCA 161
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387

TEXTS CITED: Carter on Contract, Ch 9

PARTIES: Alan James Cross (Plaintiff)
Amanda Jane Wasson (Defendant)

FILE NUMBER(S): SC 5779 of 2007

COUNSEL: Mr M Gorrick (Plaintiff)
Mr W Washington (Defendant)

SOLICITORS: Newport Law (Plaintiff)
Campbell Paton & Taylor (Defendant)

- 60 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

TUESDAY 12 MAY 2009

5779/07 ALAN JAMES CROSS V AMANDA JANE WASSON

JUDGMENT

1 In these proceedings there are two separate but related claims.

2 The plaintiff, Alan James Cross, has sought an order pursuant to s 7 of the Family Provision Act 1982 for his maintenance and advancement in life out of the estate and/or notional estate of the late Dulcie Joan Cross, to whom he was married for 22 years. The defendant, Amanda Jane Wasson, one of the deceased’s four daughters, is the executor of the deceased’s estate to whom probate was granted on 5 October 2006 in respect of a will made by the late Dulcie Cross on 3 July 2006.

3 By cross-claim filed on 18 August 2008, Ms Wasson has sought specific performance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cross v Wasson

Details

AGLC: Cross v Wasson [2009] NSWSC 378
Case: [2009] NSWSC 378
Decision Date: 12 May 2009

CaseChat Overview and Summary

In the case of Cross v Wasson, the widower, Mr. Wasson, sought additional family provision from the estate of his late wife, Mrs. Cross, who left the estate to her four daughters, with no provision made for him. The primary dispute centred on whether the provision for Mr. Wasson was adequate, particularly given the substantial portion of the estate constituted by the half interest in the matrimonial home. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the provision made for Mr. Wasson was inadequate, and if so, whether any orders for proper provision should be made. Another significant issue was the relevance of alleged disentitling conduct by Mr. Wasson, including isolated incidents of domestic violence and hurtful comments, and whether these warranted a reduced order for family provision.

The court found that the provision for Mr. Wasson was indeed inadequate, given the circumstances and the value of the estate. The alleged incidents of domestic violence and hurtful comments did not amount to disentitling conduct, especially in light of the limited evidence provided. The court concluded that these incidents did not justify reducing the order for family provision. The court ordered that Mr. Wasson receive additional provision by way of a Crisp order, ensuring he would be adequately provided for.

Orders