Cross v Wasson [2009] NSWSC 378 | Case summary

(ii) if so, whether (as a matter of discretion) any orders should be made for the proper provision for Mr Cross, having regard to contributions by him to the property and welfare of the deceased; the character and conduct of Mr Cross in relation to the deceased; and the circumstances before and after the deceased died including the extent of claims of other persons on the estate of the deceased. 6 The issues for determination in relation to Ms Wasson's cross-claim are whether a binding and enforceable agreement (sufficiently certain in its terms) came into existence between Mr Cross and Ms Wasson, as executor of the estate, by reason of the exchange of solicitors' correspondence in August/September 2007 and, if so, whether that agreement should or can be specifically enforced, absent approval of that agreement pursuant to s 31 of the Family Provision Act, having regard to the matters set out in 31(5) of the Family Provision Act (or whether that agreement can or should now be approved). Background facts 7 The deceased died on 18 August 2006, aged 64, leaving her husband (Mr Cross), now aged 79, and four adult children from a prior marriage, aged respectively between 51 and 44. Mr Cross has four children of his own from a previous marriage. Mr Cross has since remarried. 8 The deceased married Mr Cross in 1984. For each, it was a second marriage. At the time of the marriage the deceased had no interest in any real property and very little in the way of savings or other assets other than a car and two stereos (and some furniture which it is said she gave away to her daughters prior to the marriage). Mr Cross, on the other hand, was the owner of a house in Orange (presumably furnished, since the deceased brought no furniture with her to the house). His interest in that house (which I will refer to as the "matrimonial home") was acquired under the will of his first wife (although it is said that the acquisition of the land in question was made using funds from Mr Cross). It is, in effect, a half interest in the matrimonial home (strictly speaking, a tenancy in common as to one half of the matrimonial home), which forms the bulk of the deceased's estate. 9 There was conflicting evidence as to the state of the marriage between Mr Cross and the deceased. However, there was nothing to suggest that the relationship was other than relatively harmonious until 1989 (even Ms Wasson conceding that Mr Cross was "quite nice sometimes" (T 39)) when an incident of domestic violence occurred following which Mr Cross was charged with assault causing actual bodily harm. Mr Cross pleaded guilty to the assault charge and was placed on a good behaviour bond. Mr Cross said that the magistrate recognised there had been provocation by the deceased. Mr Cross' evidence was that the deceased had been drinking prior to the incident and that she had struck him. Thereafter, while there was evidence of arguments from time to time between the couple, there was no further incidence of physical abuse. 10 From shortly after the date of his marriage to the deceased, Mr Cross has been retired. He has been in receipt of a Veterans' Affairs pension since 1985 and was declared to be totally and permanently incapacitated in 1990. Mr Cross gave evidence that he had suffered from a post-traumatic stress disorder following his Korean War service. He suffered a major heart attack in April 1991. More recently, he had open heart surgery in 2007. 11 The deceased suffered a work-related injury in or about 1987 and did not work from around that time (other than in a casual capacity for canteen work). Ms Wasson did not dispute that her mother may have spent most of the $30,000 which she had received by way of compensation for the work-related injury on poker machine gambling (T 55). Ms Elliott, another of the deceased's daughters, accepted that her mother possibly could have done so (though also saying that her mother probably put it into the house or bought presents with it) (T 128), but then admitted that she did not know what had been done with the workers' compensation sum. Nevertheless, even allowing for some contribution to the property out of that sum, the bulk of the financial contribution to the assets of the marriage was clearly from Mr Cross. 12 During the course of their marriage, the income of Mr Cross and the deceased (other than perhaps income from some GIO shares formerly owned by Mr Cross, the evidence as to which was vague and based solely on Ms Wasson's recollection of something which had been said to her by her mother - T 56) was comprised of Mr Cross' pension entitlements as a veteran and the deceased's (somewhat lesser) pension entitlements. 13 Mr Cross gave evidence that in 1991, after he returned home from hospital following his heart attack, the deceased asked if he would transfer to her half of his interest in the matrimonial home as it would make her more secure if anything should happen to him. He refused to do so, saying that he had made a will following their marriage providing for the deceased and her daughters in the event of his death. 14 In 1997 the deceased was diagnosed with breast cancer. From 1998 onwards the deceased was hospitalised a number of times. 15 Following subsequent requests over the years by the deceased, on 28 March 2001 Mr Cross transferred the matrimonial home (then held solely in his name) to himself and the deceased. He did so for the expressed consideration of $1.00. The transfer created a joint tenancy in the property. Mr Cross and the deceased visited a solicitor for that purpose. As the transfer was witnessed by a Mr Fardell JP, the firm of solicitors advising Mr Cross and his wife at this time may have been Wilson, Fardell and Moore (which firm subsequently joined or merged with Baldock Stacy & Niven); a fact which would be of relevance only (if at all) insofar as it was suggested that Mr Niven of the last-mentioned firm may have been of the view in May 2005 that the basis on which the initial transfer was drafted (creating a joint tenancy rather than a tenancy in common) was in error. However, there is nothing other than the coincidence of the name "Fardell" to support an inference that the transfer was drafted by this firm. 16 At or about the time of the transfer, the deceased made a will (prepared by Wilson, Fardell and Moore) appointing Mr Cross as her executor and leaving to Mr Cross the residue of her estate (after bequeathing her motor vehicle and personal possessions to her daughters and a gazebo to Ms Joanne Johnston, one of daughters). Under this will in the event that he predeceased her, the residuary estate was to be shared amongst the deceased's children and Mr Cross' children (other than two named step-daughters). 17 On 21 September 2004, the deceased executed a new will (prepared by Baldock Stacy & Niven), this time appointing Ms Wasson as her executor and leaving her estate to her "children" in equal shares. Relevantly, however, as the matrimonial home was still then held by way of a joint tenancy and an attempted disposition by will is ineffective to defeat the right of survivorship (Carr-Glynn v Frearsons [1999] Ch 326), had the deceased died at this time her interest in the property would have been extinguished and Mr Cross would have become the sole owner of the matrimonial home. 18 In 2005 the deceased's health deteriorated. A document was prepared (half in the deceased's handwriting and half, according to Ms Wasson, in Ms Wasson's daughter's handwriting) and dated 20 May 2005, apparently setting out the deceased's wishes as to the distribution of her personal assets amongst her four daughters. Nothing is said in that document in relation to any interest in the matrimonial home. It appears to have been signed by the deceased and by Mr Niven, the solicitor in Orange who had prepared the September 2004 will. There is no evidence as to the circumstances in which he signed the document. 19 On 24 May 2005, Baldock Stacy & Niven wrote to the deceased (care of Ms Wasson's address) to "confirm our advice" that the matrimonial home "in fact should be held as 'tenants-in-common in equal shares'" and enclosing a form of transfer to effect that change, to be signed by each of the deceased and Mr Cross. The letter concluded: We confirm our further advice that you should leave your one half share in the dwelling to your husband for his lifetime and thereafter to your children. 20 It was suggested by Counsel for the defendant (Mr Washington) that I should infer from that letter that when the original transfer was prepared in 2001 there had been an error and that the parties had intended their joint ownership to be as tenants in common. I do not accept that I should draw any such inference. It is not clear that Mr Niven had any personal involvement in the original transfer from which he could have formed that view. In any event, there is no evidence before me as to the circumstances in which the original transfer was executed other than Mr Cross' account of his conversation with the deceased. Nor does it seem that any instructions were sought by Mr Niven in May 2005 as to Mr Cross' understanding of the transfer (since if there had been I would have assumed that the letter to the deceased would have issued to both her and her husband, or at least sent to the deceased at the matrimonial home and not care of her daughter's address). 21 It seems to me more likely that what happened (probably at the time of the preparation of the 2004 will or perhaps at some time thereafter) was that the deceased (or perhaps one or more of her daughters - in particular, Ms Wasson or Ms Elliott) was advised by Mr Niven that because of the capacity in which the property was then jointly held, on the death of Mrs Cross her interest in the matrimonial home would not pass under her will and that for this to occur a change would need to be made to the capacity in which the property was held. 22 In passing, I note that it also seems odd that the deceased's solicitors were purporting to advise the deceased as to how or to whom she should leave her estate - that surely being a matter for the deceased's instructions. However, it may be that the last paragraph of the letter should be construed as conveying or reflecting, not (as it says) the solicitor's advice as such but rather, the deceased's instructions. If so, it would also appear that at that stage the deceased was not contemplating that her children should acquire anything more than an interest in the remainder of her estate after the expiry of a life estate in favour of Mr Cross. 23 It would seem that the transfer form prepared by Baldock Stacy & Niven is the "paper" which the deceased asked Mr Cross in mid 2005 to sign, as deposed to by Mr Cross in paragraph 12 of his affidavit sworn 11 March 2008, and which Ms Elliott pressed Mr Cross to sign (which presumably places the conversation between Ms Elliott and Mr Cross in relation to why he would not sign such a document at about late May/June/July 2005, not 2006). 24 Relevantly, Mr Cross says he refused to sign the form because he said that he and the deceased had already "sorted everything out so that all of our children get a share" and he was not going to change anything. He says he did, however, subsequently make a new will removing his stepdaughters as beneficiaries (and says he told the deceased of his intention in that regard) on the basis that he considered her daughters were "undermining" his trust. It may be that it was the prospect of a change to Mr Cross' will which prompted a concern on the part of the deceased in 2005/6 that her daughters (unlike her stepchildren) might not share in the matrimonial home after she and Mr Cross died, but that is mere supposition on my part. 25 In any event, the evidence of both parties suggests that by around May 2005 the deceased was trying to put her affairs in order. Mr Cross deposed to a conversation with the deceased in which she was concerned that a St George Bank account (held jointly with Mr Cross for payment of their respective funeral expenses in due course) would be "frozen" if she passed away (paragraph 15 of Mr Cross' affidavit of 11 March 2008). Although Mr Cross assured her that it would not, it may well be that it was this concern which led to the withdrawal on 2 June 2005 by Ms Wasson of $5,000 from the St George Bank account held in the joint names of Mr Cross and the deceased. Ms Wasson says that the deceased asked her to withdraw that sum of money to cover her funeral expenses. Mr Cross says that the withdrawal was made without his knowledge or consent; and says that when he raised this with the deceased she told him it was Ms Wasson who suggested that the money be withdrawn. However, it is not disputed that the money so withdrawn was earmarked by the deceased for funeral expenses. 26 On 7 July 2005, Ms Wasson withdrew a further amount of $4,280 from the St George Bank account in the joint names of the plaintiff and the deceased. Again, she says that the deceased asked her to withdraw this amount to cover funeral expenses (but concedes that the funeral expenses so contemplated were to cover both the deceased and Mr Cross). 27 Mr Cross says that (other than the sum of $1,000 put into a funeral account for him) Ms Wasson has not accounted for the funds withdrawn from that joint account and this does not seem to be disputed by Ms Wasson. In her oral evidence, Ms Wasson said that she kept at her home the sums of money (totalling $9,238) that she had withdrawn. She acknowledges that the deceased asked her to put $5,000 into a funeral account for Mr Cross and that she refused to do so (T 47), even after her mother had said to her words to the effect "would you please [do so]". She says that she told her mother she would put $1,000 into a funeral account for Mr Cross (which she did) and that later she would put a further sum into his funeral account (which she admits she did not do) (T 48). She agreed that this was because she made a decision that it was not fair or right to do what her mother had asked. 28 In that regard I note that in her affidavit of 25 June 2008 (affirmed as "administrator" of her mother's estate), Ms Wasson asserted that the beneficiaries had paid for the deceased's funeral and associated costs in a sum of approximately $6,600 and that this amount needed to be repaid to the beneficiaries (paragraph 5). Ms Wasson conceded in cross-examination (T 42) that in fact $3,000 of the $6,600 was paid out of a funeral fund and that her affidavit was incorrect in suggesting otherwise. Ms Wasson accepts that she (or the other beneficiaries) is now (or will be) seeking reimbursement of the lesser sum of $3,600 for funeral fees for her mother's funeral. 29 As to what Ms Wasson did with the money withdrawn by her (she says at her mother's request) expressly in June 2005 for the purpose of funeral expenses, Ms Wasson says that after the deceased was discharged from hospital (at some stage later in 2005) she gave back to the deceased (over about a 12 month period in which her health had improved sufficiently to enable her to go out to the local club and elsewhere) most of the $9,280 withdrawn by her (in varying amounts from time to time for lunch, for car tyres or, more regularly, to use on the poker machines (T 44)). There was no evidence in relation to this other than Ms Wasson's testimony. Ms Wasson also claims that the deceased returned a further $3,000 of that amount of money to Mr Cross (T 48) (although her evidence as to this was given for the first time in the witness box and amounted to no more than a recollection, proffered on re-examination, that her mother had shown her a black wallet in her wardrobe which she said she was going to give to Mr Cross (T63)). It seems that this is the sum of $3,000 to which Ms Wasson referred when suggesting (incorrectly) that Mr Cross had got more (out of the estate) than the deceased's daughters had been left (T 52). 30 The deceased was hospitalised for about two months during June and July 2005. It has been accepted by all the family witnesses that the deceased was gravely ill at this time; that she was on morphine for pain relief and that the deceased's doctor had indicated that she was unlikely to leave hospital alive. Mr Cross gave evidence that he was informed by the deceased's doctor that the deceased had only 72 hours to live. One or more of the daughters disputed that any such time frame had been placed on the doctor's prognosis, although the hospital records do note Ms Joanne Johnston as asking a question as to how long her mother was likely to have to live in a family conference held on 1 August 2005 (Ex G). 31 Nevertheless, it is not disputed that in about June/July 2005 the deceased was moved to a palliative care unit at the hospital and (although the family witnesses broadly resisted the proposition that any particular time was placed on how long the deceased might live) there can be little doubt that a move to palliative care was not consistent with the doctors' prognosis being for an imminent (or likely) recovery. Mr Cross says that at this time the deceased appeared to be sedated and barely woke during his daily visits. 32 It was in this context (namely, where the deceased's prospects of recovery were conceded by all to be "bleak" or "grim") that the events took place by which the joint tenancy was unilaterally severed. 33 On 8 July 2005, a solicitor, Mr Bradford Stuart, attended the deceased at Orange Base Hospital. Present at that meeting (which according to Mr Stuart's file note (Ex B) took place at 5.00 pm that day) were three of the deceased's daughters, Ms Rhonda Johnston, Ms Elliott and Ms Wasson. Mr Stuart took with him to that meeting a real property form of transfer ready for execution by the deceased for the purpose of a unilateral severance of the joint tenancy in respect of the matrimonial home. Mr Stuart witnessed the deceased's execution of the document. It is not clear precisely what Mr Stuart told the deceased as to the effect of what she was doing but in his affidavit Mr Stuart deposed to the belief that she understood and was fully aware of what she had done. 34 Mr Stuart deposed to having received instructions on 5 July 2005 from the deceased's daughters in relation to the preparation of the real property transfer form which he took with him to the hospital. At first, in the witness box he said that he could not recall by whom those instructions were given but then he remembered that Ms Wasson was in attendance "and one or two of her sisters" (T 97). He conceded that he had previously acted for Ms Elliott but did not name her as one of the other two sisters who might possibly have been there (T 98). If anyone other than Ms Wasson was in attendance, it is likely to have been Ms Elliott and/or Ms Joanne Johnston (as Ms Rhonda Johnston lived in Thurgoona and did not frequently visit Orange). In evidence (Ex B) is a file note, which he accepted recorded the instructions he received and which contains contact details for each of "Mandy" (Ms Wasson) and "Paula" (Ms Elliott) and notes that "Mandy has P/A [Power of Attorney] and G'ship [Guardianship]". 35 It seems to me likely therefore that the impetus for Mr Stuart's retainer came from Ms Elliott and/or Ms Wasson and that one or both of them gave him the instructions to prepare the severance documentation prior to his attendance on the deceased. Ms Wasson gave evidence to the effect that the first time she became aware of the legal consequences of ownership under a joint tenancy was after her sister Paula had been speaking to a solicitor (Mr Stuart) who said that the joint tenancy could be severed (T 48), although she said that this could have been at least six months before the tenancy was severed. Ms Elliott deposed to a conversation with Mr Cross challenging him as to why he would not sign a transfer. Therefore she was on notice of the issue at least by then. As Ms Elliott had previously retained Mr Stuart on another matter, it would make sense for her to have sought advice from him if she or her mother had wished to confirm whether any steps were available to enable the deceased to make a bequest of a half share in the house (after the refusal by Mr Cross to sign the document Mr Niven had prepared). 36 Ms Wasson seems to have taken an active role within the family in arranging or implementing the severance. Ms Rhonda Johnston (who was at the meeting on 8 July 2005) says she first became aware of the steps to sever the joint tenancy when her sister Amanda mentioned it about a month before (T 93) and said that she thought Amanda had arranged the solicitor's meeting. According to Rhonda, "I just left it to Mandy. I thought Mandy knew what she was doing" (T 81). Ms Rhonda Johnston seems to have understood from Ms Wasson that her mother had asked Amanda to be in charge of her affairs. Similarly, Ms Joanne Johnston thought it was possible she had had general discussions with Ms Elliott and Ms Wasson in 2005 in relation to the joint tenancy (T 65). 37 It seems to be accepted by all (including Mr Stuart) that Mr Stuart visited the deceased in hospital only on one occasion and that when he did so he took with him the notice of severance of joint tenancy, which the deceased signed on that day. 38 Mr Stuart accepted that it was apparent to him that the deceased was very unwell; he said he presumed she was on medication because she was unwell; he said he was told at his initial meeting with her daughters that the deceased was in (or going into) palliative care and from that he assumed she would not recover (T 99-100). 39 Mr Stuart accepted that the likely effect of the instructions he received from the deceased's daughters would be to benefit the beneficiaries under the deceased's will and that he knew the beneficiaries to be the deceased's daughters (T 100). Notwithstanding this, he did not consider it appropriate to attend on the deceased in the absence of her daughters (T 95), though he conceded in the witness box that this would have been prudent (T 101). 40 Nonetheless, at some stage Mr Stuart seems to have considered it prudent (or it was suggested to him that it would be prudent) to substantiate or verify that the deceased understood what she was doing. I say "at some stage" because Mr Stuart did not see the deceased's doctor (Dr Ruth Morgan) on 8 July 2005. He could not recall when his first communication with Dr Morgan took place. By reference to a letter he received from Dr Morgan on 15 July 2005 he said at first that he had a conversation with her on 8 July 2005 (T 103) but when shown his letter of 11 July 2005 (Ex C) to Dr Morgan, Mr Stuart accepted that it was likely that it was one of the deceased's daughters who had spoken to Dr Morgan in the first instance (T 106). Mr Stuart could not recall speaking with Dr Morgan before his 11 July facsimile transmission to her (T 105) nor before her 15 July letter to him. 41 In evidence was a letter dated 15 July 2005 from a Dr Ruth Morgan (who was not called to give evidence) in respect of an attendance by her on the deceased at about midday on 8 July 2005 (ie before Mr Stuart had explained to the deceased anything about the severance). Dr Morgan expressed the opinion (clearly not in admissible form if relied upon as an expert report) in that letter that the deceased was able to understand the nature and effect of the severance of the joint tenancy. 42 What is remarkable about this is that at the time Dr Morgan saw the deceased (midday on 8 July 2005) Mr Stuart had not yet attended upon the deceased with the form of transfer so it is not clear what the deceased could be said to have known at that stage about an explanation yet to come from Mr Stuart; and it is not clear what Dr Morgan herself understood to be the nature and effect of the severance so as to enable her to assess whatever the deceased may have understood about it (since neither then nor later does she seem to have spoken with Mr Stuart about the matter). 43 Therefore, I think it likely that the exercise of obtaining Dr Morgan's assessment of the patient was one which was arranged by one of the deceased's daughters. This may suggest a concern within the family as to the deceased's ability to understand what was being effected on 8 July 2005 or at least an appreciation of the likelihood that this might be challenged (and presumably the only person likely to do so would be Mr Cross). In that regard, I note the fervour with which Ms Rhonda Johnston (who had limited recollection about a number of other matters), who happened to be visiting her mother and at the hospital that day, asserted in the witness box that the deceased (though on morphine, frail and weak) "was of sound mind and knew exactly what she was doing" (T 80); an assertion somewhat difficult to accept when Ms Rhonda Johnston could not herself explain what she thought her mother knew what she was doing - other than signing a "notice of something". 44 Whatever be the case in that regard, it is consistent with a course of action designed to effect a severance of the joint tenancy without Mr Cross becoming aware of this until the last possible moment. 45 On 19 July 2005, notice of severance of joint tenancy in respect of the matrimonial home was issued by the Registrar General to Mr Cross. The notice was subsequently registered. 46 Ms Wasson says that she appreciated that the effect of service of the notice of severance of joint tenancy was to enable her mother to bequeathe to her four daughters a half interest in the matrimonial home (something which would not have been possible if the joint tenancy had subsisted up to the time of death). Her sisters (or at least Ms Elliott and Ms Joanne Johnston) also seem to have appreciated the significance of this step. 47 On 1 August 2005, there was a family conference at the hospital attended by Mr Cross and various persons engaged in the care and treatment of the deceased, together with the deceased's daughters (other than Ms Rhonda Johnston), in which all the family witnesses conceded (though some did so reluctantly) that the deceased said she wished to go back home, by which they understood her to mean the matrimonial home in Orange. This was despite the fact that her daughters (or at least Ms Wasson and Ms Elliott) did not want her to do so and despite both Ms Joanne Johnston and Ms Wasson offering to nurse her at their homes. Ex G is a copy of the hospital notes of that meeting; which included the following: Dulcie states that she wants to go home. Alan Husband . Alan stated that he will be fine to cook the meals and house work etc and was planning to spend more time in the house so Dulcie can easily be heard if necessary. Daughters appeard [sic] to challenge Alan on this stating that he did not do all this before why is he going to do it now. Alan states that he just will … It was agreed by all present that Dulcie be D/C [discharged] to her house with the care of her husband Alan. 48 Notwithstanding this, Ms Wasson asserted in the witness box that her mother wanted to stay in the hospital because she "didn't want to go home" (T 44) and, when forced to accept that her mother had in fact said she wanted to go home, said that this was "out of context and she didn't really want to" (T 45). Similarly, Ms Rhonda Johnston asserted that her mother did not really want to go home (T 94). The assertion that the deceased did not want to go home is inconsistent with the hospital notes (Ex G), with Ms Joanne Johnston's recollection of the conference (T 69) and with Ms Elliott's evidence (T 127). 49 As to the deceased's care at home, Ms Wasson said she could not remember that Mr Cross had said at this meeting that he could cook and do the housework or that he supported his wife's desire to go home, but then (inconsistently with the foregoing) accepted that in the family conference she, Ms Joanne Johnston and Ms Elliott had challenged him and said he would not be the best person to cook or do housework (T 45). 50 The deceased was discharged from hospital and went back to the matrimonial home in August 2005. There is no dispute that the deceased's daughters assisted her with intimate care, such as showering and dressing. Mr Cross asserts that he otherwise cared for the deceased, did her washing, prepared meals, cleaned the house and did shopping for her while she was at home. Some of this care appears to have been conceded by one of the deceased's daughters (Ms Joanne Johnston accepting that Mr Cross did his best to help care for her mother, cooked meals when he could and helped keep the house clean and tidy as best he could (T 69)) but was disputed by Ms Wasson, who appeared to think Mr Cross should have done more, insofar as she criticised him for wanting to have district or community services on a twice daily basis (T 57). 51 From the material before me I would conclude that Ms Wasson and Ms Elliott, at least, were keen to ensure that after her death the deceased's four daughters would be able to share in what they regarded as their mother's half interest in the matrimonial home. 52 Ms Wasson is adamant that this was in accordance with her mother's wishes (T 51, T 52). There was, however, evidence to suggest that the deceased may not have understood the import of what she had done in relation to the severance of the joint tenancy. When the Registrar-General's notice of severance was received, Mr Cross says that the deceased had castigated him for changing their arrangements. Mr Cross said that the deceased did not recall having signed the notice severing the joint tenancy while in hospital; something which appears to accord with Ms Elliott's recollection of events (T 125), she conceding that he mother could have said (in a private meeting with one or more of her daughters in her bedroom around that time) that she had no recollection of signing the unilateral severance notice. This would hardly be surprising if (as seems to have been the case) the deceased was on morphine at the time she signed the document. (In that regard, without the benefit of evidence from Dr Morgan, I place little weight on her stated observations of the deceased on 8 July 2005.) 53 Ms Elliott says that in about 2005 she offered to buy Mr Cross' half interest in the matrimonial home for the sum of $100,000. Her evidence is that he was prepared to sell his interest in the home for $130,000. Mr Cross' evidence was that the suggestion that he sell his interest in the matrimonial home was one made by his wife. It would seem that the buy-out proposal was made in about mid 2005 after Mr Cross had refused to sign the transfer form prepared by Baldock Stacy & Niven. It is consistent, in my view, with the deceased being concerned to ensure that her daughters would have a distribution from her estate after her death (Mr Cross having at that stage refused to sign a form to sever the joint tenancy). I do not see this as necessarily referable to any desire by the deceased to separate from her husband, nor did she do so. Nor do I consider there is any significance to whether the offer was made by the deceased or by Ms Elliott. 54 The deceased's health improved for about 12 months after she was discharged from hospital in 2005. On 3 July 2006, the deceased made her last will. The only relevant change from her 2004 will was to refer to her four daughters (who were to share equally in the whole of her residuary estate) by name. The only explanation for this can be that she (or, as seems to me more likely, Ms Wasson - who admits that it was she who suggested the change (T 50)) was concerned to ensure that the bequest did not include any of the deceased's stepchildren (Mr Cross' four children from his first marriage), since there is no suggestion that there were any other children who might have come within the penultimate will. 55 The deceased's final will was prepared by Mr Stuart. He gave evidence that he thought the deceased was accompanied to his office for that purpose by one of her daughters. Again, he addressed his correspondence to the deceased care of Ms Wasson's address. On this occasion, Mr Stuart apparently did not consider it necessary or prudent to verify with the deceased's doctor that she understood what she was doing. That may be because in July 2006 (unlike the year before) the deceased was not on morphine and not in hospital on what was described by Counsel as her presumptive death bed. 56 The deceased died on 18 August 2006 in hospital. 57 Under the last will of the deceased, the residue of the estate is distributed in equal shares amongst the deceased's four daughters. No provision whatsoever has been made by the deceased for Mr Cross in her will. It is noted by counsel for Mr Cross (Mr Gorrick) that each of the deceased's daughters is an eligible person who would have been entitled to make a claim against the deceased's estate pursuant to the Family Provision Act and that none has done so (save insofar as each of Ms Rhonda Johnston, Ms Joanne Johnston and Ms Wasson has sworn an affidavit deposing as to her respective financial circumstances and each accepted that she wished the court to take her personal circumstances into account on this application). 58 Mr Cross married his present wife on 7 September 2007. Mr Cross and his wife have a joint pension income of approximately $1,840.00 per fortnight. Mr Cross has savings of approximately $9,000. Both Mr Cross and his wife own a motor vehicle. They currently reside in the matrimonial home. They have no other real property assets. Mr and Mrs Cross wish to move to a retirement village on the mid-North Coast area of New South Wales. The cost of so doing was estimated by Mr Cross (in 2008) as being approximately $250,000. 59 At or about the time probate was granted, the deceased's estate was estimated at $156,150. The bulk of the estate is represented by the undivided half share in the matrimonial home, estimated at being worth $150,000. 60 Affidavit evidence was filed as to the estimated cost of the proceedings incurred by both Mr Cross ($44,819.95 including GST) and Ms Wasson ($44,000 including GST). Ms Wasson is claiming reimbursement of funeral expenses of $3,600. It would appear that the net estate, after the costs of the proceedings (if allowed on a common fund or trustee basis), will be no more than about $60,000. 61 In August/September 2007 there was an exchange of correspondence between the solicitors acting for Ms Wasson and the solicitors then acting for Mr Cross (Baldock Stacy & Niven) in relation to a proposal (initially put on a without prejudice basis by Mr Cross' then solicitors) for resolution of his claim against the estate (as Ms Wasson asserts) or, at its highest (as Mr Cross would assert), for the marketing and sale of the matrimonial home pending resolution of the dispute. 62 The agreement which it is alleged was reached in August/September 2007 was one pursuant to which the matrimonial home was to be placed on the market under an exclusive marketing agreement for a three month period at a sale price of $299,000 and would (subject to a discretion afforded to the real estate agent in relation to any price offered between $287,500 and $299,000) be sold to any purchaser offering in excess of $287,500 (or at a lesser sum should Mr Cross so determine); Mr Cross would be entitled to reside in the property rent-free until it was sold (paying all rates and insurances on the property until it was sold); and, on sale, Ms Wasson as executor would receive from the proceeds of sale the sum of $104,000 (regardless of the sale price) to be distributed amongst the beneficiaries of the estate in equal shares, and Mr Cross would receive the balance. 63 Assuming that the property were to be sold under such an arrangement (at, say, $287,500) the effect of this arrangement (leaving aside adjustments for agent's commission and legal fees) would mean that Mr Cross would be entitled to receive half of the proceeds of sale in his own right and, under the arrangement, would receive a further (approximate) one-third share of the interest currently vested in the estate as a tenant in common of the matrimonial home (which arose due to the severance in 2005 of the joint tenancy which he had created as between himself and his late wife in 2001). 64 Mr Cross signed a Sales Inspection Report and Exclusive Agency Agreement on 6 September 2007 in respect of the matrimonial home but subsequently withdrew instructions in relation to the marketing of the property. Mr Cross, in his affidavit sworn 11 March 2008 said he withdrew from the "negotiations" (after obtaining advice from other solicitors) when he realised he would not be able to "re-house" himself under the arrangement which had been proposed. 65 In the witness box (for the first time) Mr Cross denied that he had given instructions to Baldock Stacy & Niven in relation to one of the terms contained in the initial "without prejudice" offer. I consider this in more detail later. Family Provision Act claim Adequacy of provision under the will? 66 For an order for provision out of the deceased's estate to be made, the court must be satisfied that the provision (if any) made for the applicant under the will was "inadequate" for the proper maintenance, education and advancement in life of the applicant (s 9(2)). It was said recently in the Court of Appeal (per Basten JA, Foley v Ellis [2008] NSWCA 288 at [3]) that that state of satisfaction "depends upon a multi-faceted evaluative judgment". 67 The question of the adequacy of provision for the applicant falls to be decided having regard to the facts as they exist at the time of the hearing, not at the time of death (Nicholls v Hall [2007] NSWCA 356 at [40]). 68 In this case, no provision at all was made for Mr Cross under the will and there was no explanation in the will for the fact that no provision had been made for Mr Cross. · Mr Cross' financial position 69 I have summarised above Mr Cross' financial position. It is apparent that if the matrimonial home were to be sold and the proceeds of the deceased's half share distributed in accordance with the will, Mr Cross would be left with insufficient funds to re-house himself in similar accommodation (or, on his evidence, in retirement accommodation of the kind he has investigated), with limited savings and assets, and with no income earning capacity. He would be almost totally dependant on his (and his third wife's) pension for his maintenance in life. 70 In this regard I note that even if I were to find that there was a binding and enforceable agreement between Mr Cross and Ms Wasson, pursuant to which Mr Cross would have an entitlement on sale of the matrimonial home to the balance of the proceeds over and above the sum of $104,000, on the limited material available to me in relation to the value of the house (that it may be in the order of $300,000 on the figures estimated by Ms Wasson in calculating the value of the estate) this would still leave Mr Cross in a position where he would be likely to have difficulty meeting his future accommodation needs, since the sum so generated could be as small as $195,000 (of which $150,000 would be referable to Mr Cross' undisputed half share), without taking into account any legal costs of these proceedings. 71 In Vigolo v Bostin (2005) 221 CLR 191 (at [115]) Callinan and Heydon JJ expressed the view that "maintenance" in the Act "may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live". It is clear that, absent any provision out of the estate, Mr Cross' financial position is such that there will be real doubt as to his ability to maintain his pre-existing state of accommodation. Even with an order for provision out of the estate he may be unable to do so. · Size of estate 72 The estate is small. As noted, at the time probate was granted the estate was valued at $156,150, the bulk of which was attributed to the deceased's one half share in the matrimonial home. The deceased's personal assets appear already to have been distributed largely, if not wholly, amongst her daughters. If costs were to be allowed in the amount estimated by the parties in the proceedings, a matter I consider below, then the size of the estate may be worth little more than $60,000. · Relationship between Mr Cross and the deceased 73 The relationship between Mr Cross and the deceased was one which spanned 22 years. Mr Cross says that for the most part they had a loving marriage, although there were difficult times when both suffered ill health towards the end of the deceased's life. The deceased's daughters (or at least Ms Wasson and Ms Elliott) paint a different picture. 74 Both Ms Wasson and Ms Elliott refer to there being arguments between the couple, although their evidence would suggest that the argumentative or volatile nature of the marriage was one which was contributed to by both parties (Ms Wasson (T 39) in her description of the usual kind of arguments, some of which at least seem likely to have been instigated by the deceased (such as a complaint about Mr Cross sitting outside reading); Ms Elliott's affidavit referring to a tendency for the two to "snap at each other"). 75 Mr Cross conceded (although he had made no reference to this in his first affidavit - a matter which I am invited to take into account as going to credit) that there had been an act of domestic violence on his part in 1989 for which he had convicted. He also accepted in the witness box that at times he was belittling/argumentative towards the deceased. 76 There were differing accounts as to the injury sustained by the deceased in 1989; in particular, as to whether the deceased's lower teeth were knocked out or loosened such that thereafter she required a lower denture. Mr Cross asserted that the deceased had the denture before the incident, recalling that whenever they came home at night the deceased placed her dentures in a glass (T 24). However, his evidence was uncertain on this point and I would accept the evidence of the deceased's daughters that the incident resulted in a loosening of her teeth subsequent to which a denture was fitted. There was also a dispute as to precisely what was comprised in the incident (namely whether Mr Cross also kicked the deceased and/or jammed the deceased in a sliding door). Ultimately I think it unnecessary to determine this factual dispute as, for the purposes of my findings, I am prepared to proceed on the assumption that the incident was as described by the deceased's daughters. 77 For much of their marriage Mr Cross and the deceased slept in separate bedrooms. I do not believe any weight can be placed on this circumstance. It was not suggested that this was in response to the one incident of physical violence in 1989 (the sleeping arrangements having been agreed earlier than this) or to any other wrongful physical conduct on Mr Cross' part. Mr Cross denied that they had ceased to share a bedroom because of disagreements or arguments. Mr Cross explained in the witness box that it was due to certain physical problems he had experienced, while he was on large doses of medication, and thus to "save arguments and what-have-you" (T 32). I do not draw from the fact that for a considerable part of their marriage the couple occupied separate bedrooms that there was an effective separation between the couple during their marriage. 78 Mr Cross accepted that he had been diagnosed with post-traumatic stress disorder but denied he suffered from anger management problems (T 17). As noted above, the deceased's own daughter, Ms Elliott, appears to have considered that her mother contributed to the volatility of the marriage insofar as her evidence was that she observed that the parties used to "snap at each other". 79 There was a suggestion that Mr Cross was emotionally abusive to his wife. Ms Elliott gave examples of two particular conversations she had had with her mother in 1997 and in 2004, in which her mother had relayed comments she said were made to her by Mr Cross (in which Mr Cross allegedly said he hoped his wife would die on the operating table; and later, that he could smother her with a pillow and kill her). If those comments had been made (and even allowing for the fact that I do not know the particular context in which they were made), I accept they must have been distressing to the deceased. Ms Elliott gave evidence that she spoke to Mr Cross about those comments at some stage in 2006 prior to her mother's death and she says Mr Cross apologised for making the comments. It was not clear to me from Ms Elliott's evidence in the witness box that Ms Elliott had actually repeated to Mr Cross the particular comments which she says her mother said to her had been made by him and for which she says he apologised (T 120). 80 Certainly, Ms Elliott accepted that she had not brought this up with Mr Cross when it happened, as she said it was none of her business. This suggests she may not have viewed the comments as harshly when she first heard about them as she did in retrospect or that her mother's reaction to them was not sufficiently adverse to warrant intervention at that time. When Ms Elliott did eventually raise the issue of hurtful comments with Mr Cross, it appears she did so as part of an attempt to persuade him to leave her mother ("why don't youse [sic] just part"), in circumstances where she was aware that Mr Cross had refused to sign a document in May 2005 severing the joint tenancy at her mother's request (T 120/121). 81 Mr Cross adamantly denied making the particular comments. However, assuming for present purposes that those comments were made, and as nasty and distressing as they would have been in the circumstances, they nevertheless are no more than two (presumably isolated, as I was not told of any other such comments) instances over a 22 year marriage. They do not appear to have been perceived by the deceased as conveying any real threat to her wellbeing, since as late as 2005/2006 the deceased was adamant that on discharge from hospital she wished to return home to the matrimonial home where her husband was living (and to have him care for her in the home to the extent he was capable of so doing), and she made that choice presented with the alternative of residing with one or more of her daughters. Not only did the deceased clearly wish in 2005 to return to the matrimonial home on her discharge from hospital, but also the deceased was concerned to ensure Mr Cross' wellbeing insofar as (on Ms Wasson's own evidence) the deceased wished to ensure that adequate provision was made for his funeral arrangements as well as her own. 82 In the deceased's last will she directed that her daughters have control of her funeral arrangements "without intervention" from her husband but nevertheless indicated that she would be very pleased if her husband were to attend her funeral. That does not seem to me to be consistent with a relationship in which the deceased and Mr Cross had no remaining affection for each other, although it did convey her apparent wish that her daughters have unimpeded control over the funeral arrangements. 83 Palmer J in Murphy v Stewart [2004] NSWSC 569 considered circumstances where a former husband had been guilty of violent physical and emotional abuse. His Honour said: Nevertheless, the important consideration is that, however difficult or offensive the Deceased's behaviour might have been at times, there could have been no possible justification for the Plaintiff to respond with violent physical abuse. Domestic violence is not a response that our society condones in any circumstances and it must be quite clear that this Court cannot condone it either. I accept that the overall consideration in applications under the Act is whether, in all the circumstances of the case, the applicant has demonstrated that he or she is a person who would generally be regarded as a natural object of testamentary recognition by the Deceased: see Re Fulop (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241, at 252. I accept also that in determining that question the Court pays regard to what it conceives to be current attitudes and expectations in the community: see Walker v Walker (unrep.) 17 May 1996 per Young J. In the present case, I take into account the following considerations. Throughout the whole of their cohabitation, the Plaintiff was violently abusive of the Deceased, physically and emotionally. The Plaintiff deliberately lied to the Court about the quality of the marital relationship. After cohabitation ceased, the Plaintiff harassed the Deceased and abused her in public. The Plaintiff made no contribution at all to the assets of the Deceased and very little contribution to their daily living expenses during cohabitation. I am not satisfied that the Plaintiff's present lack of assets and means generally is the result of inability to work in the ten years since cohabitation ceased, rather than the result of a disinclination to work. In these circumstances, I am of the view that the Plaintiff's conduct during and after the relationship with the Deceased would generally be regarded, according to current attitudes and expectations in the community, as disqualifying him as a natural object of testamentary recognition by the Deceased. Accordingly, in my opinion, there are no factors which warrant the making of this application for provision out of the Deceased's estate. In accordance with s.9(1) of the Act, therefore, I cannot proceed further to determine the application and it must be dismissed. 84 Reference was also made to the decision in In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318 where Jordan CJ at 321 considered (by reference to the applicable legislation) that disentitling conduct (or "character or conduct such as to disentitle him to the benefit of such an order") means: character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default. 85 In Radzyminski v Radzyminski [2008] NSWSC 239, Young CJ in Eq (as he then was) considered a claim by a widow for provision under the Family Provision Act. The will had stated that the lack of provision for the plaintiff was because "our paths have separated and she decided to lead an independent life causing me great and continuous psychological stress". His Honour noted that there had been a large amount of evidence as to family relationships, much of which his Honour described as second hand from people's alleged understandings of what they gleaned from what the deceased had said from time to time (at [8]) that evidence in his Honour's opinion, not being of great help in focussing on the key question, which was whether the deceased should have left his widow provision and, if so, what provision. While his Honour noted there was a bulk of evidence on unsatisfactory relationships within the family, he said it was clear that the plaintiff and the deceased were living together right up until the deceased's suicide. In that case his Honour noted that there was obviously great ill feeling between the plaintiff and her stepsons, and vice versa, as was the case here, at least between Mr Cross and Ms Wasson. 86 Relevantly, his Honour noted that the marriage, allowing for a three year break, was one that had lasted for over ten years "which these days is considered to be a long relationship" and that even if the parties had divorced prior to the deceased's death, it was almost certain that orders would have been made for the plaintiff to receive something out of the sale of that house. His Honour was of the view that a wife of ten years would normally be expected by the community to be in the consideration of the testator "even though he may have had some problems with the wife, at least in the situation where nothing about the wife's moral conduct is alleged that could be conduct is alleged that could be conduct disentitling." 87 In Foley v Ellis, the primary judge noted that an order under the Family Provision Act is not to be withheld as punishment for bad conduct (the conduct there being the writing of letters which were found to be grossly offensive). 88 It was submitted, in effect, that to make an order for provision for Mr Cross (or to make such an order without some form of discount to reflect his violent attack on his late wife) would be to condone domestic violence. I do not accept that this is the case. The facts of the case before Palmer J involved a long and consistent history of abuse during the parties' cohabitation, and harassment thereafter. Here, there was one incident, which I by no means condone, for which Mr Cross was sentenced some 19 years ago. I have no doubt that had there been any other incidents of physical abuse (of a similar kind or otherwise) over the course of the marriage (or at least any of which the deceased's daughters, who were in constant contact with their mother, were aware) they would have been put before me. 89 As for the allegations of what seem to be put as tantamount to emotional abuse, again they were isolated instances in the context what seems to have been a somewhat argumentative relationship on the part of both parties to the relationship. The bulk of the complaints in relation to argumentative behaviour relates to Mr Cross' relationship with each of Ms Wasson and Ms Elliott. Neither could be said to be an objective observer of the marriage; and the caution expressed by Young CJ in Eq in Radzyminski as to the weight to be put on such evidence seems to me to be warranted in this instance. It was very clear from Ms Wasson's evidence, and she frankly conceded, that she has no affection or liking for Mr Cross (objecting to Counsel referring to him as her "stepfather" - "He is not my stepfather please. He was married to my mother" (T 44)). Ms Wasson was of the view that her mother "had her four daughters who she cared about more than her husband" (T 59). · Relationship between deceased and her daughters 90 In terms of the deceased's relationship with her daughters there is nothing to suggest that there was not a close relationship between them. Ms Wasson's evidence was that from 1990 onwards she visited her mother at the matrimonial home nearly every day apart from when her mother was hospitalised (as her mother was babysitting Ms Wasson's daughter). Ms Elliott, who lived with the deceased and Mr Cross for about 15 months, and Ms Joanne Johnston who lived nearby also seem to have had a close relationship with their mother. The remaining daughter (Ms Rhonda Johnston) who has lived away from Orange since 1989 seems not to have been in such close contact with her mother as were her sisters. 91 The evidence shows that the deceased's daughters were caring and supportive of their mother during her long battle with cancer, including providing assistance with her intimate care and companionship to her. It is the closeness of this relationship which may have distorted the view of one or more of the daughters of their mother's relationship with Mr Cross. It would by no means be surprising if the daughters were less forgiving of Mr Cross' faults than their mother. 92 I accept on the evidence that the deceased was concerned as to ensuring her daughters' welfare and had given thought to making provision for them after her death. However, whether the deceased's decision in July 2005 to sever the joint tenancy was prompted by the deceased's own concerns or whether (as I think more likely) it was prompted by one or more of her daughters wishing to ensure that a share of the house be distributed amongst the daughters (rather than for the whole of the house to go to Mr Cross) is something which is less clear and I address this later in these reasons. 93 Having regard to the evidence as to the relationship between the deceased and Mr Cross and the relationship between the deceased and her daughters, I am of the view that both her husband on the one hand and her daughters on the other hand were persons whom the deceased would naturally have regarded as having a claim on her bounty and who would be considered as the natural objects of her testamentary disposition, for whom provision should be made so far as possible having regard to the size of the estate. · Conclusion as to inadequacy of provision for Mr Cross 94 There being no provision whatsoever in the deceased's will for Mr Cross, having regard to the length of his relationship with the deceased, his financial circumstances, his age and his ill health, I find that as a matter of fact there has been inadequate provision (even out of the admittedly small estate) for Mr Cross' proper maintenance and advancement in life. 95 I so find notwithstanding that Mr Cross was (some 19 years ago) guilty of a single (albeit serious) act of domestic violence towards his wife. In that regard, I place weight on the fact that there is no evidence of any repetition of that conduct on Mr Cross' part. I can only conclude that the deceased forgave him sufficiently to remain in the marriage and the matrimonial home (notwithstanding her daughters' attempts to persuade her otherwise), though I am conscious that it is not always easy for a dependant spouse to leave such a relationship and hence the fact that she remained with Mr Cross must be tempered by the possibility that the deceased did harbour resentment or ill feeling towards her husband as a result of his treatment of her. Whatever be the case in that regard, the fact remains that (faced with various alternative options), the deceased consistently expressed a desire to return to the matrimonial home, where Ms Elliott conceded she said she was "quite happy", and Mr Cross did provide support and care for her there. Proper provision for Mr Cross 96 Turning to the second stage of the test set out in Singer v Berghouse, the question is (and this is a matter of discretion) what order, if any, should be made for the proper provision of Mr Cross. 97 In M A Bourke (deceased) and the TFM Act [1968] 2 NSWLR 453 at 455, Street J considered that there was a high moral duty owed to a surviving husband. In Samsley v Barnes (1991) DFC 95-100 at 76,307; [1990] NSWCA 161, Kirby P noted that there was no different approach to widowers than to widows. 98 Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19). 99 That said, in Bladwell v Davis Ipp JA said (at [2]) that: ...where competing factors are more of less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others. 100 Accordingly, while there is no general principle of paramountcy on which to Mr Cross can rely, nevertheless it appears to be accepted that (in a reflection of what I would understand to be normal community expectations or standards) one would ordinarily expect a testator to make provision for the needs of his or her spouse having regard to any competing claims on the testator's bounty. · Contributions to the property and welfare of the deceased 101 There is no doubt that Mr Cross contributed in a substantial way to the property of the deceased. At the time of their marriage, the deceased had no interest in the matrimonial home. She resided in the home throughout her marriage. At her request, and in circumstances where Mr Cross had understood there to be an agreement that their respective children would be equally provided for after they both died, Mr Cross transferred to the deceased in 2001 an interest as joint tenant in the matrimonial home, thus providing her with the means by which, without his consent, she acquired an undivided half share in the home. 102 As to the deceased's welfare, there is evidence that Mr Cross contributed to the deceased's welfare by caring for the deceased (to the extent he was able) during her final years and when she was ill, albeit not in relation to her intimate personal care. Although Ms Wasson was critical of his care, Ms Joanne Johnston (a more objective witness on my observation) conceded that he had cooked for the deceased and cleaned and tidied the house to the best he could. 103 It was accepted that the deceased wished to return to the matrimonial home each time she was discharged from hospital (up to shortly before the time of her death) and said that she did not wish to die alone. She did not wish to burden her daughters in this regard, but evidently had no such concern viz a viz burdening her husband. Ms Elliott, in re-examination, made this clear: "She also said that she did not want to die alone. And that she was quite happy to go back there" (T 128). · Character and conduct of Mr Cross in relation to the deceased 104 It is submitted that I should reduce any provision made for Mr Cross by references to the admitted incident of physical abuse by him in 1989 and (what I understand to be suggested was emotional abuse arising from) the two comments noted earlier (which Mr Cross denies making). 105 To suggest that Mr Cross should be deprived of an order for proper provision necessary to enable him to meet his accommodation needs in the final years of his life because of the one admitted incident of physical abuse does not seem to me to be appropriate. Had the estate been large, it might have been appropriate to reflect that conduct in a lower award. However, here the estate is hardly sufficient to meet his needs, let alone those of others, and when balancing his needs against the needs of the deceased's daughters (which I address below) I do not consider a deduction to be warranted. 106 Similarly, but with even more force, I do not regard the two alleged comments, hurtful as they no doubt would have been, as sufficient to disentitle Mr Cross from an order for provision out of the estate. · Circumstances before and after the deceased died 107 It is relevant, in this context, to have regard to the circumstances in which the joint tenancy came to be severed. There seems to have been a concerted attempt by at least two of the deceased's daughters, Ms Wasson and Ms Elliott, to ensure that steps be taken for the tenancy to be severed without Mr Cross' knowledge or consent. Whether or not initially that was motivated by a concern on the deceased's part, it seems clear that the revival of steps to sever the tenancy (after Mr Cross' refusal in May 2005 to do so) was something initiated and/or orchestrated by Ms Elliott and Ms Wasson. 108 As noted above, the deceased had first requested a transfer of an interest in the property to her when Mr Cross suffered a massive heart attack in 1991. He acceded to that request in 2001. Mr Cross' evidence does not support the finding that there was any mutual mistake in that regard, nor do I draw such an inference from Ex 5. What Mr Cross, in effect, says he was contemplating was that if he died first the house would go to the deceased and vice versa; and that each would look after the interests of the children from both marriages. That seems to be consistent with the deceased's 2001 will. There is nothing to suggest that there was an error in the documentation of that transfer. Rather, it seems that the deceased's daughters (and perhaps the deceased herself) simply assumed that the deceased's interest (under the joint tenancy) could be bequeathed to anyone to whom she thought fit (in much the same way as Ms Joanne Johnston seems, without any real foundation, to have assumed that once they were married the couple would jointly have owned their house). 109 It seems clear that the deceased (and at least Ms Elliott/Ms Wasson) discovered by mid 2005 at the latest that this was not the case. When the deceased (or her daughters) realised the implication of her ownership being under a joint tenancy (I suspect after seeking advice in relation to her will) she asked Mr Cross to change the nature of their interests in the matrimonial home. He refused to do so, as was his right. 110 What happened thereafter was described by Counsel for Mr Cross as either a course of conduct behind Mr Cross' back in which Ms Wasson and her sisters were heavily implicated or a deceitful and secretive course of conduct by the deceased alone. 111 At least in relation to the severance of the joint tenancy, the file opened by Mr Stuart (on the instructions he says of the deceased's daughters) was one where the address details were given as care of Ms Wasson's residence. I can only infer that this was so that Mr Cross did not become aware of what was happening in relation to the severance. I accept that there was an intention to keep Mr Cross in the dark as long as possible as to what was planned. Ms Wasson frankly conceded that "we didn't want him to know anything" (T 51). 112 Ultimately, the tenancy was unilaterally severed at a time when there is no doubt that the deceased was gravely ill. It therefore happened at a time when the deceased's capacity to understand the nature of what she was doing may well have been impaired by the medication she was being given. 113 It would seem that it was Ms Wasson who arranged for Mr Stuart to visit the deceased in hospital. It must have been Ms Wasson or one of the other daughters who gave instructions in relation to the preparation of the transfer document (since Mr Stuart's evidence was that he did not meet or attend upon the deceased until he arrived at the hospital with the transfer document). It does not seem to have been Mr Stuart who advised that a doctor should opine as to the ability of the deceased to sign the transfer document at the time and, indeed, it would seem that arrangements had been made for the deceased's doctor (Dr Morgan) to visit the deceased some four or five hours before Mr Stuart attended upon her to explain what she was signing. I can only infer that it was Ms Wasson or one of the other daughters who explained to Dr Morgan the significance of the document that was later to be signed and to which Dr Morgan refers in her letter. 114 I would accept Mr Cross' evidence that there was some confusion in the deceased's mind after she returned home as to what she had in fact signed in hospital (supported as this is by the concession reluctantly made by Ms Elliott in the witness box as to what occurred in the private bedroom meeting between the deceased and one or more of her daughters after formal notification of severance of the joint tenancy was received). 115 The circumstances in which the tenancy was severed (and, later, a substitute will executed which ensured that the step-children of the deceased would not take any interest in her estate on her death) raise a question in my mind as to whether or not here there may have been a situation of actual undue influence. However, no such claim was raised and there has been no challenge to the will in that regard. 116 As to the circumstances after the deceased died, the only relevant circumstance, it seems to me, is the alleged entry into an agreement to resolve the disputes which I consider later in the context of the cross-claim. · Competing Claims 117 In Foley v Ellis, Sackville AJA (at [88]) noted that the language in Singer v Berghouse, "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act." 118 Here, the only competing claims for this purpose could be those of the beneficiaries (namely the deceased's four daughters) three of whom have adduced evidence of their financial circumstances and needs (albeit, in the case of Ms Wasson, because she claims to have been "forced" to do so). 119 Insofar as Ms Elliott has chosen "under advicement" [sic] not to adduce any such evidence, then I am entitled to assume that her circumstances are not such as to reduce any provision which would otherwise be appropriate to be given to Mr Cross (Field v Inglis, Master McLaughlin, as the Associate Judge then was, unreported, 8 November 1993). (I note, in passing, that it would seem Ms Elliott believed herself capable of funding the acquisition of a half share in the matrimonial home back in 2005/6 at a cost of $100,000 and hence seems to be in a financially comfortable position.) 120 Each of Ms Wasson, Ms Joanne Johnston and Ms Rhonda Johnston has an interest (either jointly with a partner or, in the case of Ms Joanne Johnston, in her own right) in a home valued (on their own estimates) at more than (or, in the case of Ms Rhonda Johnston, $40,000 less than) the matrimonial home. The homes in which Ms Rhonda Johnston and Ms Joanne Johnston reside are each subject to a mortgage. On the figures provided by them it appears that they are presently able to service their mortgages. (It is not clear from Ms Wasson's affidavit whether her home is mortgaged.) All three daughters are employed (albeit Rhonda is employed only on a casual basis). Each owns (jointly with a partner or in her own right) one or more motor vehicles. Ms Rhonda Johnston and her partner own a motorbike used for recreational purposes; Ms Wasson and her partner own a boat used for recreational purposes (valued at $20,000 acquired with a loan of $18,000) and have a caravan site some 70 kms from Orange. Ms Rhonda Johnston may in due course have an entitlement to share in the benefit of her partner's (undisclosed) superannuation entitlements. 121 Each of Ms Wasson and Ms Joanne Johnston has one dependant child still living at home. Ms Wasson and Ms Joanne Johnston each has credit card debt, which each is currently paying off by means of weekly or monthly payments. 122 It seems to me that the need demonstrated by Mr Cross is greater than that of the beneficiaries with competing claims to the estate. 123 The question then is as to what, having regard to the matters set out above, is the "proper" provision to be made for Mr Cross out of the estate. 124 Mr Gorrick, Counsel for Mr Cross, describes this as a claim for "bread and butter" not "cheese and jam" (cf Blore v Lang (1960) 104 CLR 124 at 134). He seeks the whole of the estate as that represents, in effect, the matrimonial home. 125 Mr Washington, on the other hand, while conceding that it may well be open to the court to find that Mr Cross was left without adequate provision (and, indeed, indicated that the defendant would not cavil at such a finding) nevertheless submits that the fundamental breach of the marital relationship in 1989 calls for a severe diminution in any provision to which Mr Cross might otherwise be entitled. 126 For the reasons I have set out above I do not accept that the isolated incident of physical violence in 1989 should elevate the position of the daughters, as objects of the deceased's testamentary affection, above that of Mr Cross to the extent that to do so (ie to make provision for a distribution to the daughters out of the estate) will severely diminish Mr Cross' ability to maintain appropriate accommodation for himself in his old age. 127 Insofar as credit is concerned, it was put to me that Mr Cross lacked candour, particularly in that the evidence given in relation to the instructions given to his solicitor in 2007 (which I consider below) was false. It was conceded by Mr Gorrick that Mr Niven, if called, would give evidence that he believed he had acted on instructions and with the authority of Mr Cross in sending a without prejudice letter of offer in August 2007. 128 I do not know the explanation for the evidence given by Mr Cross in the witness box on this issue. I suspect he may have been confused or mistaken as to what he thought he was being asked to admit or as to whether the effect of what he was being asked was to make a concession in relation to his present claim, and was (rather than denying the instructions per se) in fact meaning to deny that this was his real intention (as opposed to what he suggests his solicitor was pressing him to accept). However, on balance, it does not seem to me that much flows from the unreliable nature of his evidence on this point, given that I am prepared to proceed on the basis that the evidence of the daughters in relation to the 1989 incident (and as to the hurtful comments made to the deceased) is to be preferred to that of Mr Cross. On the whole, Mr Cross' evidence of events over the course of his marriage seems broadly consistent with the objective facts and/or the evidence of one or more of the daughters. 129 Ms Wasson's evidence itself contained statements which were untrue - as to the quantum of the claim for reimbursement of the funeral expenses and as to whether she attended at the matrimonial home after the funeral to collection her mother's possessions. Further, it was demonstrably incorrect for her to assert, as she did, that her mother had made two wills with Mr Stuart (T 40); or that she had only known him since her mother changed her will (since the only will Mr Stuart drafted for her mother was in 2006 and Ms Wasson clearly instructed him in July 2005) (T 49). While not as stark as the credit issue affecting Mr Cross' evidence, this points to the danger of basing any findings on credit in this case. 130 Ms Wasson clearly has had a strong dislike of Mr Cross for quite some time (relating back to matters which are independent of her perception of his treatment of her mother) and was prepared to disregard her mother's very clear instructions in relation to the setting up of a funeral fund for him. Had she complied with those instructions Mr Cross would have had the benefit of a further $4,000 in his funeral fund. Ms Wasson admits she did not want her mother to go back to the matrimonial home (T 46). 131 The nub of Ms Wasson's claim seems to be that she believes her mother cared more for her daughters than her husband (which she may well have), that her mother did not want "his kids" to get everything and her children nothing (T 52), and that Mr Cross got more than she and her sisters ("He got half the house - a house full of furniture, $3,000. I would not call that nothing. He got more than we did. We got her bedroom suite and personal effects" (T52). 132 Of the four daughters, Ms Joanne Johnston seemed to me to be the most capable of commenting objectively on the relationship between her mother and Mr Cross; and she accepted that her mother always wanted to return home and that Mr Cross had done what he could to care for her (T 69). 133 I therefore do not believe it is appropriate to make orders which would severely diminish Mr Cross' position. · Exercise of discretion 134 In Maria Lourdes Farr v Gregory Hardy & 2 ors [2008] NSWSC 996, White J considered (albeit in the context of an estate with far greater assets than the present estate) the adequacy of a provision under the will pursuant to which the widow had a mere personal licence to reside in the matrimonial home which did not amount to a life estate. His Honour made reference to the Court of Appeal decision in Golosky v Golosky [1993] NSWCA 111, where Kirby P, with whom Cripps JA agreed, said that a mere right of residence would usually be an unsatisfactory method of providing for a spouse's accommodation in fulfilment of what they regarded as the normal duty of a testator to ensure that the spouse be provided with a place to live appropriate to that to which he or she had become accustomed. The reason for this was: … because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence the spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. 135 In Farr, White J noted the observation made by Young J (as he then was) in Court v Hunt (NSWSC, 14 September 1987; BC 8701155 at 3), that "[i]n many cases these days a life estate would not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital." In the Farr case his Honour considered that it was normally appropriate for a widow to take a house in fee simple (rather than, for example, a life estate). 136 In Hertzby v Hertzby [2003] NSWCA 311 (again in the context of a very large estate and one where there was no competing claim based on need) McColl JA recognised that the prospect of a widow being able to lead an "independent and dignified life" was diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors and that this was exacerbated where the relationship with the executors had broken down. (Here, there is clearly a very unsatisfactory relationship between Mr Cross and the executor.) 137 In this case, the claim put on behalf of Mr Cross is described as a "bare claim for maintenance"; in particular sufficient funds to enable him to have some security in his accommodation and to enable him to meet his reasonable future accommodation needs. 138 Subject to any finding in relation to the cross-claim, my concern is that any order other than one which provides Mr Cross, in effect, with a fee simple in the matrimonial home (and the ability to relocate his accommodation as necessary) will not be adequate to meet his future accommodation needs. So, for example, a life estate or right to occupy the matrimonial home for the balance of his life would not be adequate to meet Mr Cross' future accommodation needs in circumstances where it may well be that Mr Cross will need to enter into a retirement home (with or without health care) and or a nursing home or otherwise be hospitalised for ill-health or requiring funds for provision of medical and other services as he ages. 139 Sackville AJA in Foley v Ellis referred to the observations of Gleeson CJ in Vigolo v Bostin and, in particular, that the word "proper" incorporates value laden concepts that must have a source external to the decision-maker. Insofar as these are to be found in community standards I believe that what would be regarded as "proper" in this case is that Mr Cross should have security of accommodation in the last years of his life. Cross claim 140 The alleged agreement is said to have come into existence by way of acceptance (by letter dated 6 September 2007 written by Mr Cross' then solicitors to Ms Wasson's solicitor) of an offer made on behalf of Ms Wasson on 4 September 2007. That letter was, in turn, a response to an offer put on a without prejudice basis by letter of 27 August 2007 from Mr Cross' former solicitors. 141 In the first letter of the chain (dated 27 August 2007) headed "Without Prejudice", Baldock Stacy & Niven wrote that: Our client is now prepared to resolve this matter on the following basis. … 142 There followed a series of nine points. Essentially, as noted above, what was proposed was that the home be placed on the market for a sale price of $299,000 with a three month sole agency agreement and, if sold, the estate would receive $104,000 regardless of the sale price. (It is point 6 - the amount the estate was to receive out of any sale - with which Mr Cross took issue in terms of denying that he gave any such instructions.) 143 Mr Cross gave evidence in the witness box to the effect that he had not given instructions in relation to the dollar figure which was contained in the August correspondence (being the amount which was to be paid first to the estate out of any proceeds of sale). A concession was thereafter made by Mr Cross' Counsel that Mr Cross' former solicitor, Mr Niven of Baldock Stacy & Niven, would, if he gave evidence, say that he understood that he had instructions to put the offer contained in the letter. It would be extraordinary for a solicitor acting properly (and acting, it was admitted, on instructions in relation to the balance of the paragraphs of that offer) to put a term of this kind without understanding that he had instructions to do so. 144 It was put to me that I should not accept Mr Cross as a matter of credit in light of the fact that he had denied the giving of instructions in this regard. Mr Cross' evidence in relation to the giving of instructions in respect of this letter is highly unreliable in circumstances where he admits that the balance of the letter was written on instructions and the concession that Mr Niven's evidence, if called, would have been that he understood that he had had instructions in relation to each of the items in the letter. However, as noted above, I do not believe that this takes the matter very far. 145 Point 8 related to payment by each party of his or her own costs "in respect of this dispute." 146 Point 9 provided that "if the property is not sold within the 3 month period our client reserves the right to either extend [sic] the period of the agreement or alternatively commence proceedings under the Family Provision Act." 147 I note that the term "the dispute" is not defined, but presumably it refers to an assertion of a claim under the Family Provision Act of the kind which point 9 sought to preserve in the event that the property was not sold within three months. 148 The letter concluded: We note that agreement has essentially been reached except as to a few of the minor points. Accordingly, I would appreciate your immediate reply so that the property may be placed on the market. 149 It is worth noting that this letter presumably followed earlier correspondence or discussions (of which I have no evidence) since otherwise it is difficult to see how Mr Niven could have formed the view that, by then, agreement had essentially been reached. 150 I note that point 2 envisaged the agent having a role to play in determining whether the property be sold between $287,000 and $299,000. Mr Gorrick relies on the absence of any evidence by the real estate agent in question (Ms Doone Grist) as to the assumption of responsibility in that regard, or anything to show how a discretion by her should be exercised, as demonstrating the unworkability or uncertainty of any "agreement" arising out of this letter. While this may add to the flavour that this was not a final agreement setting out all the mechanics of how it was to work, this factor alone would not in my view have been determinative. 151 In response to that without prejudice letter, on 4 September 2007 Ms Wasson's solicitors wrote that their clients agreed to all points raised with the exception of point 9, stating that: Our clients are of the view that once the property is on the market it should remain on the market and be sold. Our clients, in accepting this settlement, do so on the basis that it is a final and "once and for all" settlement. A deed of settlement can be entered into so as to embody the terms. Please advise your client's acceptance. 152 On any view, this was not an acceptance of the offer contained in the August correspondence. It would best be characterised as a counter offer. 153 The critical letter is that of 6 September 2007, in which Baldock Stacy & Niven wrote: Our client agrees to your clients' proposal that item 9 in our letter of 27 August not form part of the agreement". 154 They enclosed a signed Sole Agency Agreement; asked that it be signed on behalf of the estate; and then said: We ask that you submit a Deed of Settlement embodying the agreement. 155 Was that correspondence sufficient to give rise to an immediately binding agreement? 156 This gives rise to the question whether there was a binding agreement between the parties at all (which involves a consideration as to whether any such agreement was sufficiently comprehensive and certain to be enforceable and whether there was a common intention on the part of the parties to be bound). I noted in Iacullo v Iacullo [2008] NSWSC 1176, what is relevant is not the individual objective intentions of the parties but, rather, what the law takes to have been their intentions at the relevant time (referring in this regard to Mahoney JA in B Seppelt & Son Limited v Commissioner for Main Roads (1975) 1 BPR 9147 at 9151), ie the test is an objective one. 157 Even if there was a binding agreement it is by no means clear that it extended to the resolution of all claims including any claim for provision under the Family Provision Act. 158 On its face, all that was "agreed" on 6 September 2007 was that item 9 not form part of "the agreement". To what agreement does that refer? None had by then been reached. Presumably this is a reference to the agreement contemplated between the parties to "resolve the matter" on the basis outlined in paragraphs 1-8 of the 27 August letter. 159 However, if so, that agreement does not contain any express release of rights under the Family Provision Act; nor could the deletion of point 9 amount to any representation that no such claim be made. Point 9 is predicated on the property not being sold within three months, which may or may not be the case. Once point 9 is deleted all that is left by way of agreement is for the marketing of the property; distribution of sale proceeds; and apportionment of costs. While the assertion that this was to be a "once and for all" settlement might to some extent assist the defendant, to my mind there remains uncertainty as to precisely what was being "settled" and, more importantly, how that "settlement" was to be achieved. 160 Any "agreement" which incorporated a release of the Family Provision Act claim required the approval of the court. Any "agreement" which did not incorporate such a release was necessarily one which would leave open the prospect of Mr Cross commencing proceedings at a later time to determine an entitlement under the Act. 161 Here, while I accept that a consensus of some kind was recorded in the exchange of correspondence, it was a consensus which was very limited in scope. I do not consider that the consensus, as such, could be said to have extended to the giving of a release in favour of the estate. At best, therefore, if the letters did constitute a binding agreement it was limited to the marketing of the matrimonial home within a three month period. The failure by Mr Cross to adhere to an arrangement whereby he would place the home on the market for a three month period would be measured by the loss of the opportunity to sell the matrimonial home in that initial three month period (any damages for which would have enured to the estate but would still be subject to Mr Cross' claim for provision out of the estate). 162 However, I have difficulty reaching the conclusion, on the face of the correspondence, that the parties intended immediately to be bound by the terms envisaged in their correspondence rather than, as indicated by the final sentence in the letter of 6 September 2007, intending that they would be bound only upon entry into a formal deed of settlement embodying those terms. This may be tested, in my view, by posing the question what would have happened had a deed been forwarded to the solicitors for Mr Cross which was not in terms acceptable to Mr Cross (or alternatively had Mr Cross sought to have included in any deed provisions of a kind which were not acceptable to the executor). I doubt very much that in those circumstances either party would have been in a position to contend that the agreement or consensus recorded in the exchange of correspondence up to 6 September 2007 would have been sufficient to constitute an immediately binding agreement; or to obtain specific performance of such an agreement. 163 The lack of an intention immediately to be bound is strengthened by the uncertainty arising from the fact that, once point 9 of the 27 August 2007 letter was removed from the settlement terms, there was then no stated agreement as to what was to be done if the matrimonial property was not sold on the basis set forth in paragraphs numbered 1 to 4 of the letter of 27 August 2007 within the three month sole agency period. Point 6 applies only "if the property is sold on the above basis" (my emphasis). If it were to be sold after that period, then there is nothing in the "agreement" to set out the way in which the proceeds of sale were then to be apportioned; nor is there anything to suggest who was to market the property for sale after that period. 164 I do not place any weight on the fact that the letters of 4 and 6 September 2007 followed on from a letter headed without prejudice. It is clear that acceptance of a "without prejudice" offer can give rise in appropriate circumstances to a binding and enforceable agreement. However, what is required is that there be an offer that is capable on acceptance of constituting a binding agreement sufficiently certain in its terms to be enforceable and that the parties' common intention, objectively ascertained, is immediately to be bound by that agreement. I consider that the correspondence fails to satisfy either of those requirements. 165 The absence of specific reference to what was to happen to any Family Provision Act claim might conceivably have been able to be cured by an inference to be drawn from the circumstances in which the correspondence was exchanged (although I think no such inference should be drawn given the uncertainty as to how the disposal of any such claim was to be effected). However, even if this issue could be overcome, the uncertainty as to what is to happen if the property did not sell within three months remains and to my mind this is a strong indication that the parties did not intend at that stage immediately to be bound by the terms set out in the correspondence but, rather, required that there be a formal deed in which to finalise and set out all the terms of their consensus. 166 The other issue which is raised on the facts is the significance of what is said to have been part performance of the agreement by Mr Cross, namely the delivery of a signed agency agreement for a real estate agent to market the property as contemplated by point 1 of the 27 August letter. 167 In Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Mason CJ and Wilson J noted (at 405) that the principal purpose of the doctrine of part performance was to overcome non-compliance with the formal requirements for the making of contracts (by contrast with equitable estoppel, which is dependent upon considerations of a different kind - having its basis in unconscionable conduct). Ordinarily the doctrine is invoked where there is an alleged oral agreement which (by that very fact) does not meet a statutory requirement for writing. The acts of part performance relied upon must be unequivocally and in their own nature referable to some such contract as that alleged (see the general statement of principle in Carter on Contract, Ch 9). The requirement that the acts be referrable to some such contract as that alleged appears to be a fairly broad requirement, simply requiring reference to be made to a contract of the kind alleged rather than to any contract simpliciter. 168 Here, while the delivery of the signed agreement might be said to be referable to a contract of the kind alleged, there is an argument that the last sentence of the 27 August letter was an indication that if there was acceptance in principle of the points, set out in the letter, then Mr Cross would proceed to market the property subject to and pending final agreement being reached. To that extent, the delivery of the marketing agreement might not be seen as unequivocally referable to an agreement of the kind relied upon by the executor (ie an agreement to resolve all disputes between Mr Cross in relation to the estate). 169 Mr Cross, for his part, said he put the house on the market acting on advice from his solicitor to do so because by the time it took the property to be sold it was more than likely the court case would be over. This is not consistent with an understanding on his part that the marketing of the house was under an agreement to dispose of any court case whatsoever. 170 While Mr Cross' assertion of his understanding in this regard might prove to be as unreliable as his evidence on the instructions he gave to his solicitor, it does raise a concern in my mind (which I discuss below in relation to the issue of s 31(5) approval) as to whether he was in a position to give due consideration to any independent advice given to him at that stage in relation to the offer. 171 There was no evidence as to any reliance on any representation constituted by delivery of the signed agency agreement which might sustain an equitable estoppel, nor was one pleaded. 172 I think there is sufficient doubt as to the circumstances in which an agent was appointed not to give rise to any finding in favour of the estate based on the doctrine of part performance. 173 In any event, insofar as it is alleged that this is an agreement which would have operated to release any claim under the Family Provision Act, it is conceded by Mr Washington, Counsel for the executor, that approval of the agreement would be necessary. For the court to intervene by ordering specific performance the contract must be amenable to relief by specific performance (see para 45-020 Carter). 174 In response, reliance is placed by Mr Gorrick on s 31 of the Family Provision Act which evidences a statutory intention to protect eligible persons by providing that a release by a person of that person's right to make an application in relation to a deceased person has no effect except as provided in sub-section 3 (that being where the court has given its approval to a release under s 31(5)). 175 In proceedings for the approval of a release the court is obliged to have regard (pursuant to sub-section 5) to all the circumstances of the case including whether:

Cross v Wasson

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (17)

Cited By (19)