Forsyth v Sinclair

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3871 of 2008

CAMPBELL GRANT FORSYTH (Executor of the Will and Trustee of the Estate of Malcolm Bailey Forsyth, deceased)	Appellant
	v
MARLENE CHERYL SINCLAIR	Respondent

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JUDGES	NEAVE and REDLICH JJA and HABERSBERGER AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 March 2010
DATE OF JUDGMENT	22 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 147
JUDGMENT APPEALED FROM	Sinclair v Forsyth [2008] VSC 250 (Harper J)

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TESTATOR’S FAMILY MAINTENANCE – Appeal – Claim by testator’s domestic partner – Findings as to relationship supported by evidence – Reasons not inadequate – Longstanding, close and exclusive intimate relationship – Administration and Probate Act 1958, s 91(4) – Judge did not err in finding that testator had responsibility to make adequate provision – Claimant nearing retirement and had limited capacity to provide for herself – No error in awarding half of testator’s estate – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P G Nash QC with Mr J D Loewenstein	Peter J Walsh Carroll Kiernan & Forrest
For the Respondent	Mr A Panna SC with Mr K MacFarlane	Remington Wright & Co

NEAVE JA:

Background

This is an appeal against a decision of a Trial Division judge ordering that provision be made out of the estate of the deceased, Mr Malcolm Forsyth (‘Malcolm’) for the proper maintenance and support of the respondent, Mrs Marlene Sinclair (‘Marlene’). The background to the appeal is as follows.

Malcolm died suddenly, after suffering a heart attack, on 1 July 2004. He had never married and had lived for most of his life in the home at Clonarg Street, Burwood, which he and his brother inherited from their parents. The brothers were tenants in common in the property. The appellant, Campbell Forsyth (‘Campbell’), was the sole remaining executor and beneficiary under a will Malcolm made in 1973, when he was 32.

Marlene claims that she was Malcolm’s lover and companion from the early 1990s until his death. Throughout that period she was still married to Robert Sinclair. She and her husband ceased marital relations in 1992 and lived separate lives, though both continued to reside in their matrimonial home in South Croydon, along with their adult children, who lived there on and off throughout that period. They divorced about four months after Malcolm’s death. After Malcolm died, Marlene applied for provision from his estate under Part IV of the Administration and Probate Act 1958 (the ‘Act’).

The learned trial division judge held that Marlene and Malcolm had ‘a loving and intimate relationship from 1992 onwards’ although they maintained separate dwellings and kept their financial affairs largely separate. His Honour held that Marlene was a person for whom Malcolm had a responsibility to provide and that without such provision she would lack adequate support. He ordered that half of Malcolm’s estate be paid to her.

The appeal raises three main issues. The first issue is whether his Honour’s finding as to the nature of Malcolm and Marlene’s relationship was contrary to the weight of the evidence. The second issue is whether his Honour should have found that Malcolm had a responsibility to make adequate provision for the proper maintenance and support of Marlene, under Part IV of the Act and whether he gave adequate reasons for that finding. The third issue is whether his Honour erred in exercising his discretion under Part IV, by ordering that Marlene should receive half of Malcolm’s estate.

Grounds 4, 5, 9 and 11 - the nature of the parties’ relationship
The appellant’s evidence

The appellant’s defence to Marlene’s claim at the trial was that she was simply one of Malcolm’s friends. Accordingly he had no duty to make adequate provision for her proper maintenance and support. Campbell said in his evidence-in-chief that he had first met Marlene when she had come to his home in 1995. He also met her on one occasion when she visited his brother in hospital and on four other family occasions which she had attended with his brother. He said that he had never seen Marlene at his brother’s house prior to his death, though she was there when he went to the house on 2 July, the day after his brother died. In cross-examination he said that between 1997 and 2004 he visited Malcolm’s house a minimum of four times a year, though other visits had also occurred. He said that when he visited Malcolm he sat on the veranda to talk to his brother and after 1997 he had not gone inside the house.

Campbell said that he did not find any women’s clothing in the house when he went there after his brother’s death on 2 or 3 July 2004, other than some suits and brightly coloured items which might have been fancy dress. Nor did he see cosmetics or other personal items that a woman might use. He had the locks to the house changed on 3 July.

Campbell said that when he had telephoned Malcolm at home between 1995 and his death, Marlene had never answered the phone. At some time in 1998 Malcolm had mentioned Marlene on a number of occasions and Campbell had asked his brother if there was anything he should know about the relationship. His brother had replied that they were ‘just good friends’. Campbell said that among his brother’s belongings there was a ‘cardio card’ filled out in 2004, indicating that Campbell should be contacted in the case of an emergency. Neither the cardio card, nor his brother’s past or current passport, referred to Marlene.

Mrs Noreen Forsyth (‘Noreen’), Campbell’s wife, gave similar evidence to her husband. She said that Malcolm had stayed in their home on four occasions after he had spent time in hospital for heart problems and that Marlene had visited him there only once. She also gave evidence that when she had telephoned Malcolm, Marlene had not answered and that when she and her husband had visited the house shortly after Malcolm’s death there was no sign that a woman had lived there. She said she was friendly with her brother-in-law and that he had told her he enjoyed having a social life and going out, but that he did not think his relationship with Marlene would blossom into anything more. She conceded that Malcolm had not told her about the holidays he had gone on with Marlene.

Shirley Andersson, who had been a friend of the Forsyth family since 1969, said she had tried to visit Malcolm about once a month at his home in the last 20 years of his life. If he was not at home when she went there she would phone him afterwards. In the years before his death she had rarely gone inside the house. She said she had first met Marlene in the mid 1990s, when she had gone to see Malcolm in hospital after he had his first heart attack, and had met her on three or four other occasions when Marlene had accompanied Malcolm to social events. Mrs Andersson had assumed that they were casual friends. No-one else had ever answered Malcolm’s phone, when she called him. She had seen Marlene after his death when Marlene had come to give her some photos of Malcolm. The respondent had then ‘talked about Malcolm as if they had had a relationship far and above what I had seen with my own eyes’.

At Campbell’s request, a friend of Campbell and his wife, Senior Constable Phillip Copsey, visited Malcolm’s home on 21 September 2004, about two and a half months after he died. He spent about an hour and a half going through the house. In his evidence at the trial he said that the house was packed with items, furniture and boxes and that ‘it hadn’t been cleaned for dust or grime’. He was asked if there was anywhere to sit down and eat a meal and said that there was a tray table in the eating area. There were no feminine items in the bathroom and he had found no women’s clothing, other than a small size tracksuit top and ‘some items of varying female sizes’ that appeared to be fancy dress.

At the trial a large number of photographs taken by Campbell in August 2004, a few days after Malcolm died,[1] and in April 2005, were exhibited in support of his case. The July photographs showed that the Clonarg Street house was very untidy, that there was a large amount of unironed laundry in the bathroom, and that virtually all surfaces of furniture in the sitting room were covered with papers, and other items. It was submitted at the trial that Marlene could not have had the close personal relationship she claimed to have had with the deceased. If this had been the case she would have tidied and cleaned the house and would have made greater efforts to care for Malcolm, who suffered from a skin condition as well as having a number of other medical problems.
[1]On 3 and 6 July 2004.

In addition to the witnesses who gave evidence at the trial, the appellant also relied on an affidavit sworn by Gino Rousetty,[2] who had been Malcolm’s accountant. In his affidavit, Mr Rousetty said that:

4.I was informed by the defendant herein that this proceeding had been instituted in relation to the estate of Malcolm and that, as I was informed and verily believe, the plaintiff herein had represented herself to the Coronial Services of Victoria as being Malcolm’s ‘financial partner’.
5.Apart from the fact that there is no evidence in any of my records of any arrangements or discussions of any business dealings which Malcolm had with either the plaintiff or anyone else to support the plaintiff’s claim herein that she was a ‘financial partner’ of Malcolm, at no time did I even know of the name Marlene Sinclair until so informed by Campbell during my conversation with him in April 2005. Malcolm did tell me a few years ago that he was going on a holiday with ‘a friend’ to Queensland. The name of the friend was not mentioned.
6.I can categorically say that Malcolm at no time ever discussed with me, nor do I verily believe with anyone in my firm, any estate planning or financial arrangement involving the plaintiff herein or indeed any other person.
[2]The Summary of Facts and Issues also refers to affidavits sworn by Anthony Borg and Patrice Forsyth. However at the trial counsel for the appellant said that he did not rely on the evidence of these witnesses.

The respondent’s evidence

Marlene’s evidence was that she had separated from her husband early in 1992, but the separation was amicable and they had continued living in the same house. At first her husband had slept on a mattress on the floor of their bedroom but had moved into another bedroom when her son moved out in 1994. In 1997 her husband went to New Zealand for 18 months and when he returned he continued to sleep in the spare bedroom. He had moved out in October 2001.

Marlene said Malcolm was initially a close friend, but by April 1992 they had become intimate. At that time she said they had ‘made a life-long commitment and said that we would just spend as much time as we could together, that we would look after each other, no matter what, and we would get married when we could’.

In the early 1990s, when her children were still relatively young, she and Malcolm had spent Saturday and part of Sunday together, and had dinner sometimes during the week. During the week she had stayed overnight in his house about once a month. From about 1997 or 1998 she stayed in his house four or five nights a week, and over most of the weekend. They had telephoned each other very frequently when they were not together.[3]
[3]The phone records were exhibited.

Marlene said they would eat in cafes most nights of the week. She said that she was a member of Toastmasters and Rotary and that throughout their relationship Malcolm had always accompanied her to the social functions of these organisations, as her partner. He also went to interstate Toastmaster Conventions with her and accompanied her to an international Toastmaster conference and they went on interstate holidays together and stayed with friends as a couple. They had entertained friends together at Marlene’s home, socialised with her family and had visited and gone out with friends together. Marlene said that she and Malcolm had discussed their future and had talked about her getting a divorce after her duties as ‘District Governor’ for Toastmasters were completed at the end of the year. They intended to marry, although they had not set a date.

Marlene said that Malcolm’s house was a mess inside and that he was a hoarder, who had placed something on every flat surface. Her evidence was that on the evenings they spent together they generally ate dinner in a café, but on the occasions that they ate at home they would set up a card table.

In the early stages of their relationship she had tried to clean up but he did not want things to be moved. She said she had changed the sheets on the bed frequently, because Malcolm had a skin condition which made him itch. When they went out to dinner or films together she would pay sometimes and he would pay on other occasions. In cross-examination she conceded that two of the four hot-plates on the stove top did not work, but said she had not got them fixed, because Malcolm told her not to bother. She said that the stove worked well enough to ‘cook a pot of vegies or soup’, that she cooked a meal about once a week, and prepared toast and sometimes eggs for breakfast. She could not recall whether there were grease stains above the sink or on the stove splash back.

Marlene said that she had frequently taken Malcolm to medical appointments and that she helped him regularly by putting cream on his body when his skin condition was troublesome.

She said she had a key to Malcolm’s house and had kept some work clothes, underwear, cosmetics and a hair dryer at his house. She had gone to the house and removed them the morning after he had died, but had forgotten to pick up some evening clothes and a ski jacket. She identified the ski jacket from one of the photographs taken by Campbell.

She also said that she had bought cushions and lamps for the house and other lamps that were still packaged and kept for use in the home they would establish together. Malcolm had helped her choose a cook top for her own home. When they discovered it did not fit Malcolm had bought it from her so she could buy another one. They had intended to use it when they set up a home together.

In the early 1990s Marlene had access to Malcolm’s NAB bank account. At that time she was struggling financially and Malcolm had paid her daughter’s school fees for about five terms. The school fees had been repaid after she and her husband settled their financial affairs. In the three years before Malcolm‘s death she had paid amounts into his NAB management account, for them to use as spending money on holidays. She had a supplementary American Express card on Malcolm’s account, although she generally reimbursed him for that expenditure.[4] In cross-examination she conceded that she had not been financially dependent on Malcolm and that he had not had access to her bank account.
[4]It was agreed by Campbell that these reimbursements were made.

Marlene was asked whether she and Malcolm had discussed whether to tell Campbell and his wife about their relationship. She said that they had decided ‘not to tell Campbell and Noreen, and religion was part of that’. When asked the reasons for not doing so she said:

That they wouldn’t understand the relationship, that we would prefer to keep it to ourselves, that Noreen in particular wouldn’t understand.

When asked whether there were any other people she did not tell she said:

Campbell and Noreen and I suppose their family and particular friends, that might have been mutual friends with Mal. A couple of times he was asked about our relationship, and he said that we were a business partnership. Well, we weren’t a business partnership, but that was our stock standard answer for anybody who inquired or who probed, or who asked inappropriate sort of questions. What do you tell somebody that is asking about your life?

It was put to her in cross-examination that she was not identified in Malcolm’s passport as his next of kin and she said that she couldn’t recall, ‘but that would be correct, we were keeping it a secret’.

Marlene called 12 witnesses who testified that she had been in a close and intimate relationship with Malcolm, and that they had treated each other as partners. The learned trial judge found that these witnesses were reliable and were telling the truth. I refer to their evidence below.[5]
[5][38].

His Honour’s findings

His Honour found that:

Malcolm Forsyth and Marlene Sinclair lived for the years immediately preceding the death of the former on terms of deep and intimate affection. There was no financial dependency, and each maintained a separate household while combining many aspects of the households of each. Of crucial significance in the circumstances of this case, however, is the fact (which I find as a fact) that the shaping force in the lives of each over this long period, which only ended with Mr Forsyth’s death, was their love for each other. It is a measure of this that they shared, on a daily basis over many uninterrupted years, including the times when Malcolm was in Maryborough and Bendigo, nearly all the most significant moments of their lives. Their emotional and spiritual bonds were very strong. Their emotional and spiritual reliance on each other reflected this. In the sense most relevant to human relationships, her dependence on him, and his on her, was I think about as complete as it is possible to be.[6]

[6]Sinclair v Forsyth [2008] VSC 250, (‘Reasons’), [41].

In relation to Malcolm’s failure to tell his brother and sister-in-law about his relationship with Marlene his Honour said that:

Why Malcolm concealed most of this from his brother and sister in law is a puzzle. I am aware of nothing in his relationship with them which would account for this diffidence. On the contrary, the three were on affectionate terms; and even were Campbell and his wife inclined to be judgmental (which they were not and are not) the bonds of kinship and affection would have remained intact. The most likely answer, I think, is that Malcolm believed that they did not particularly like Marlene, nor she them. They are simply different, or so it appeared to me from my brief experience of all three during the course of their evidence. And while the chemistry between people who are very different can sometimes create close and enduring friendships, sometimes it works the opposite way.
There is, I think, another point. Marlene had released Malcolm from the constraints of bachelorhood. She had also introduced him to new forms of entertainment and to a new and wide circle of friends. The Malcolm she met in 1989, and the Malcolm his brother and Noreen Forsyth knew, was not the Malcolm who, by the early 1990’s, he had become. He had new friends, new interests, and in some ways at least a new enthusiasm for life. He was, I think, uncertain about how he should make his new self known to his close relatives. In the end, he never got round to it. When, in 1998 or thereabouts, Campbell asked his brother ‘whether there is something I should know about your relationship’ with Marlene, he replied ‘we are just good friends’. The subject was never again discussed.[7]
…
Had Campbell and Noreen entered the house at Clonarg Street more often in the last years of Malcolm’s life, and been more familiar with its furnishings, they would have observed not Malcolm’s old single bed but a new, large, double bed in the main bedroom. They would also have observed things that belonged to a woman: that woman being Marlene. They may have come to realise, as the evidence of neighbours attests, that she spent several nights there each week, although also spending other nights with, but as often without, him at her home in South Croydon. They may also have learnt, as I find was the case, that Malcolm was at his happiest when sharing with her a week-end morning in bed, and much of the balance of the day – also with her – at the cinema, or in a café enjoying coffee and conversation.

The retention of separate residences is explicable in part by Marlene’s domestic arrangements with her husband and children, and in part on the basis that each retained a house that was closer to the relevant place of work than the house of the other.[8]

[7]Ibid [15]-[16].

[8]Ibid [25]-[26].

His Honour did not accept the submission for the defendant that the state of the house showed that Marlene’s relationship with Malcolm could not have been what she claimed. He noted Campbell and Noreen Forsyth‘s evidence that Malcolm had always been very untidy and that the condition of the home got worse and worse over time. His Honour said that:

In the course of giving her own evidence, Mrs Sinclair swore that she attempted without success to do something about this. I accept that Malcolm quickly rebuffed her. Perhaps his reaction was the product of embarrassment, together with a fear of wounded pride. The fact remains that, without his co-operation, her capacity to effect change was limited. It was his mess, and only he could create order out of it. How, for example, could she relocate his books and magazines from the floor to a bookshelf or magazine storage space without his participation?
Perhaps she could and should have done more to ensure that, if chaos there had to be, at least it would be clean chaos. But unordered clutter is peculiarly hard to keep clean. Nevertheless, it does say something about the relationship that it did not result in a change in Malcolm’s habits. They were clearly inappropriate for a man of his health. He suffered from serious skin problems. Dust was not good for him. Mrs Sinclair knew this. She either failed to persuade him to change, or she tried and he ignored her. It is not surprising that the state of the Clonarg Street home re-enforced Campbell and Noreen Forsyth’s perception of Mrs Sinclair as an opportunist rather than a loving domestic partner. In their eyes, either her claims to have spent many nights with Malcolm in his home were and are untrue, or she failed in her duty to him by failing to get rid of his mess.
In these circumstances, it is inevitable that much was made during the course of the hearing about the conditions under which Malcolm lived. The evidence, however, did not point in only one direction. If it is true, as Campbell and Noreen Forsyth maintain, that Mrs Sinclair should have done more to wean Malcolm of his untidy habits, so – it seems to me – should they. They too knew of the problems Malcolm had with his skin. In addition, Campbell was an owner of the house. Apart from anything else, his brother’s habits would not have assisted in an emergency such as a fire or a flood. But just as I think Mrs Sinclair’s capacity to effect change was limited, so I think the same of the other two. In the end, it was Malcolm’s responsibility to look after himself. Neither Mrs Sinclair, nor Campbell Forsyth, nor his wife, share much if any blame for the fact that Malcolm did himself less than justice in the way he managed the interior of his home (he was no gardener, either).[9]
[9]Ibid [22]–[24].
…
… for understandable reasons, Campbell and Noreen Forsyth, who were unaware of the strength of Malcolm’s ties to domesticity, have never reconciled Mrs Sinclair’s status as a nurse with her claims to have been the loving domestic partner of someone who lived in a mess of chaotic untidiness. Their position is that if, as she claims, she spent many nights at Clonarg Street, she as a nurse would not have tolerated that mess. It is therefore, they submit, unlikely that her account of time spent with Malcolm Forsyth in his home is true.
… I am satisfied that that condition was, at the time of Malcolm Forsyth’s death, more or less as Campbell and Noreen Forsyth described what they saw when they first entered the house after hearing the news. They thereafter left it as it was, even to the extent of abandoning a carton of milk that Malcolm had left in the refrigerator. It is no wonder that, when a police officer known to them (Senior Constable Phillip Copsey) inspected the property the following September, the house in general was covered in dust and grime and was, in his words, ‘almost putrid’.
In these circumstances, counsel for Campbell Forsyth (Mr Loewenstein) submitted that it was significant that Mrs Sinclair in her cross-examination referred to herself as Malcolm Forsyth’s ‘carer’. Mr Loewenstein’s point, of course, was that no carer, especially a carer who was also a qualified nurse, would have allowed the subject of his or her care to live in the conditions in which, he submitted, Malcolm lived. But in giving the answer she did, Mrs Sinclair did not mean that she had adopted the role of a person entrusted with the care of someone unable to care for himself. Her full answer to the question put to her by Mr Loewenstein was:
‘I was his carer, I looked after him, he looked after me. We lived together, we did everything together.’

I accept that Mrs Sinclair did ‘look after’ Mr Forsyth. She washed his clothes and ironed his shirts. She applied cream to his sensitive skin in an attempt to alleviate the discomfort his skin condition imposed upon him. She collected medicines for him. She cooked meals. She accompanied him to medical appointments. She did not, perhaps, perform these tasks as often as she might have done had she and Mr Forsyth lived together at one address. Nevertheless, she regularly provided for him many of the services that a carer might provide, particularly in the application of the skin cream.
Moreover, Malcolm did not live in the conditions described by Mr Copsey. A dreadfully untidy and somewhat dusty mess it was, but I am satisfied that – whatever its condition in September 2004 - it was not during Malcolm’s lifetime also smothered with grime and cobwebs. Moreover, I have given my reasons for concluding that, to the extent (if at all) that Malcolm himself did not shoulder the entire blame, Mrs Sinclair, Campbell Forsyth and Noreen Forsyth each had a degree of responsibility for the state of the house.[10]
[10]Ibid [22]-[31].

Grounds of appeal

Grounds 4, 5, 9 and 11 challenge his Honour’s factual findings as to the nature of the relationship between Malcolm and Sinclair. They are as follows:

4.The learned trial judge erred in failing to give any or any sufficient weight to the following:
4.1the respondent was at no time revealed to the appellant or his wife as being anything more than a ‘friend’ of the deceased;
4.2the evidence of the respondent that they wish to keep their relationship ‘a secret’;
4.3the deceased spent his convalescence after each of his heart attacks in 1995, 1997 and 2001 in the care of the appellant and his wife, not in the care of the respondent;
4.4the respondent, being a nurse, did little or nothing to render the deceased’s home more habitable or to ensure that the deceased, who suffered from a severe rash and a heart condition, lived in a clean and healthy environment;
4.5the respondent was at the time she met the deceased and until after the death of the deceased a married woman;
4.6the deceased and the respondent never lived together;
4.7the respondent at all times from 1992 until the death of the deceased had her principal place of residence in her matrimonial home and, with the exception of some 18 months during which her husband was in New Zealand, resided there with her husband;
4.8neither the deceased nor the respondent accepted any responsibility for, or contributed to, the maintenance of their separate residences;
4.9the deceased and the respondent at all times kept their finances separate;
4.10the respondent was in no way dependent on the deceased;
4.11at no time did the deceased and the respondent discuss their Wills or the making of testamentary provision one for the other;
4.12the evidence of Senior Constable Copsey;
4.13the affidavit of Gino Roussety;
4.14the affidavit of Shirley Andersson.

5.The learned trial judge erred in accepting the evidence of the respondent and in drawing inferences therefrom:
5.1without observing a ‘great need of caution’ in accepting the evidence of the respondent especially to the extent that it was not corroborated: see Birmingham v Renfrew (1937) 57 CLR 666; Schmidt v Watkins [2002] VSC 273 at [21];
5.2without giving any or any sufficient weight to the inconsistencies in the respondent’s evidence and the inconsistencies between her evidence and the evidence of other witnesses;
5.3without giving any or any sufficient weight to the respondent’s misleading claim on AXA contained in the letters which are Exhibits ‘D14’ and ‘D15’ and the false claims made on the respondent’s behalf in the letter of demand of 17 August 2004 with is Exhibit ‘D9’;
5.4without giving any or any sufficient weight to the matters set out in Ground 4.

8.The learned trial judge erred in speculating as to matters in relation to which there was no evidence and, in particular, in concluding:
8.1‘The most likely answer [to the question why the deceased concealed the nature of his relationship with the respondent from his brother and sister-in-law], I think, is that Malcolm believed that they did not particularly like Mrs Sinclair nor she them.’ (Reasons [15]);
8.2‘Mrs Sinclair had released Malcolm Forsyth from the constraints of bachelorhood … The Malcolm Forsyth she met in 1989 and the Malcolm Forsyth, his brother and Noreen Forsyth knew, was not the Malcolm Forsyth who, by the early 1990s he had become … He was, I think, uncertain about how he should make his new self known to his close relatives.’ (Reasons [16]).

9.The learned trial judge erred in drawing the inference, in the absence of supporting evidence, and contrary to the evidence of Carlie Sinclair (Transcript p 232) that the ‘retention of separate residences is explicable in part by Marlene’s domestic arrangement with her husband and children, and in part on the basis that each retained a house that was closer to the relevant place of work than the house of the other’. (Reasons [26]).
10.The learned trial judge erred in drawing the inference that delay in marriage was due to hesitation on the part of the deceased and drawing the further inference that ‘the principal reason for any hesitation Malcolm may have had [in relation to marriage] was … grounded in his fear that his brother and sister-in-law would not approve because of their attitude towards Mrs Sinclair’, particularly having regard to:
10.1the matters mentioned in Ground 4;
10.2the evidence of the respondent (Transcript p 205) that the deceased pressed her to marry him every other day;
10.3the evidence of Stella Flaskis (at Transcript p 265) that the deceased was keen to get married and it was the respondent who kept putting off the marriage.

11.The learned trial judge erred in finding that the respondent did the cooking, washing and ironing for the deceased (Reasons [30]) particularly having regard to:
11.1the respondent’s answers in cross-examination at Transcript p.163 line 20 to p.164 line 19, p.178 lines 26-30, and p.182 line 8 to p.183 line 11;
11.2the state of the kitchen and the washing immediately following the death of the deceased as revealed by the photographs with Exhibit ‘D2’;
11.3the evidence of the appellant, the evidence of Noreen Forsyth; and
11.4evidence of Senior Constable Copsey.

Counsels’ submissions

The appellant’s oral submissions focussed mainly on the question of whether Malcolm had responsibility to provide for Marlene. Nevertheless, counsel for the appellant submitted that his Honour had wrongly concluded that Malcolm’s emotional and spiritual reliance on Marlene was ‘about as complete as it is possible to be’. Counsel submitted that this disregarded the care provided by Campbell and Noeleen Forsyth following his four periods of hospitalisation, Campbell’s inclusion of Malcolm in family celebrations and the fact that Malcolm’s bills were paid on his behalf by his brother, not by Marlene, during the period between May 1992 to June 1993 when Malcolm was working in Maryborough.

Counsel for the appellant further submitted that his Honour had given insufficient weight to the fact that Marlene was not financially dependent on Malcolm, that she did not file for divorce from her husband until after Malcolm‘s death and that throughout the whole period of her relationship with him she had continued living with her husband in the matrimonial home. In relation to grounds of appeal 8.1 and 8.2, it was submitted that his Honour had speculated inappropriately as to why the deceased had not told his brother and sister-in-law about his relationship with Marlene and had not taken account of the fact that neither Malcolm’s doctor or his accountant had heard of Marlene.

Counsel further submitted that his Honour erred in finding that Marlene was Malcolm’s carer, because of the poor state of the house after Malcolm’s death.

Counsel for the respondent submitted that his Honour’s finding that the couple had a close and intimate relationship for at least 12 years prior to Malcolm’s death was justified by the whole of the evidence and his Honour’s acceptance of the credibility of the witnesses who gave evidence to that effect. His Honour’s findings as to the nature of the relationship were not contrary to compelling inferences or glaringly improbable.[11]
[11]Fox v Percy (2003) 214 CLR 118, 128 (Gleeson CJ, Gummow and Kirby JJ).

Counsel submitted that his Honour’s observations about the reasons why Malcolm did not tell his brother and sister-in-law about his relationship with Marlene were legitimate inferences from the known facts, rather than speculation. In any case they were not relevant to the determination of the nature of the relationship, which his Honour had found to exist on all the evidence before him. His Honour was entitled to accept Marlene’s evidence that she had attempted to organise and clean the house but that Malcolm had not wished her to do so. He had not erred in finding that when Marlene described herself as Malcolm’s carer, she did not mean that she was caring for a person unable to care for himself or herself, but was referring to the emotional quality of the relationship.

Conclusion

Although Malcolm did not tell his brother and sister-in-law that he had a relationship with Marlene, there was considerable evidence from witnesses other than Marlene that the couple had a long standing, close and intimate relationship, in which they relied on each other for company and emotional support, and were regarded by their friends and Marlene’s family as a couple. His Honour took account of the fact that the couple did not live together all of the time, that Marlene retained a separate residence and was not financially dependent on Malcolm, and that she was not divorced until after Malcolm’s death. His Honour accepted the evidence that Marlene and her husband had separated and lived independent lives since 1992.

The evidence of witnesses other than Marlene, which was accepted by his Honour as credible, can be summarised as follows:

·Marlene had been seen by neighbours on workday mornings leaving to go to work from Malcolm’s home and he was seen farewelling her;[12]
·Malcolm accompanied Marlene to Toastmaster functions and was treated as her partner by friends and acquaintances who also attended Toastmaster events;[13]
·Malcolm and Marlene attended social functions together as a couple;[14]
·Malcolm expressed his love and affection for Marlene to a number of witnesses and she did likewise;[15]
·Malcolm and Marlene visited and stayed with their friends Mr and Mrs Gullick as a couple;[16]
·they had an exclusive sexual relationship and had told some of their friends they intended to marry;[17]
·friends sent them letters and Christmas cards as a couple over a number of years; and
·Marlene received numerous condolence letters and cards from friends who knew her and Malcolm as a couple, after his death.[18]

[12]James Berg and Elizabeth Berg.

[13]Robert Conyers, John Van Holsteyn, Judith Talanoa and Geoffrey Morrissey.

[14]Robert Conyers, Stella Flaskis, Gordon Gullick, John Van Holsteyn and Judith Talanoa.

[15]Robert Conyers, James Berg, Elizabeth Berg, Stella Flaskis, Judith Talanoa, Gordon Gullick, Jacqueline Gullick, John Anderson, John Van Holsteyn and Desmond Collins.

[16]Gordon Gullick and Jacqueline Gullick.

[17]Stella Flaskis and Judith Talanoa. He also told Sinclair’s mother, Mrs Brooks.

[18]The condolence book signed at the funeral also included people whom Sinclair identified as her and Malcolm’s friends.

His Honour’ reference to the reasons why Malcolm may not have told his brother and sister-in-law about Marlene’s importance to him, was not inappropriate speculation. The judge described it as ‘a puzzle’ that Malcolm had not done so. Although Malcolm’s failure to do so raised questions about the nature of the relationship, there was sufficient other evidence to justify the conclusion his Honour reached.

Ground of appeal 5.1 complains of his Honour’s failure to refer to the ‘great need for caution’ in assessing Marlene’s evidence after Malcolm’s death, when he could not challenge her evidence about the nature of their relationship or defend the terms of his will.[19] Although his Honour did not expressly refer to that principle, a number of witnesses corroborated Marlene’s evidence about her relationship with Malcolm. Most of these witnesses were disinterested observers of the relationship and were accepted as credible by his Honour. There was also contemporaneous objective evidence of the existence of the relationship, including telephone records showing the couple’s very frequent calls to each other, greeting cards sent to them as a couple and the condolence letters and cards referred to above. The strength of that evidence was not substantially diminished by the fact that Malcolm did not tell his brother Campbell, Campbell’s wife Noeleen, or Shirley Andersson about the relationship.
[19]Birmingham v Renfrew (1937) 57 CLR 66. The principle was applied to a testators’ family maintenance claim in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 20. See also Schmidt v Watkins [2002] VSC 273.

Ground of appeal 5.3 alleged that his Honour gave insufficient weight to the fact that Marlene had described herself as ‘partially dependent’ on the deceased and as his ‘domestic partner’ when she filled out an AXA dependency form relating to a claim that she was in a de facto relationship with Malcolm at the date of his death.

In cross-examination it was put to Marlene that she had wrongly claimed to be partially dependent on Malcolm. In response she said that she had thought she was partially dependent on him, based on the nature of their relationship. It was also put to her that her solicitors had written to AXA claiming that she was Malcolm’s domestic partner. Her response was ‘I maintain I was’. In the AXA form which she completed, Marlene’s credibility is reinforced by the fact that she correctly stated that she was living in South Croydon and did not claim to be living at Clonarg Street.

Ground of appeal 5.3 also relied on his Honour’s failure to take account of allegedly ‘false claims’ to personal property made in a letter from Marlene’s solicitor to Mr Forsyth. In his evidence-in-chief Campbell said he did not see the claimed items when he went to the house, and had later changed the locks. His Honour asked him if he had asked Marlene to come to the house with him to identify the items and he said he had not.

The appellant did not establish, on the balance of probabilities, that the claims to personal property made by Marlene were false. In my opinion neither of these matters cast any significant doubt on the credibility of Marlene’s evidence.

Ground of appeal 9 alleged that his Honour erred in inferring that the retention of separate residences was due in part to Marlene’s domestic arrangements with her husband and children and in part on the basis that each retained a house that was close to their place of work.[20] This was said to be inconsistent with the evidence of Marlene’s daughter, Carlie Sinclair, that she thought her mother stayed at Malcolm’s during the week, ‘just I think it was just closer to work’.
[20]Reasons, [26].

Carlie Sinclair’s evidence on this issue was as follows:

COUNSEL:In that period of 15 months prior to his death, are you able to say how often your mother was seeing Mal, and where she was staying or - - - ? –
CARLIE SINCLAIR: Yes, a lot of the time she would stay in at Mal’s during the week, just I think it was just closer to work and Dan and I were at home, and on weekends they would come out and stay out at Croydon a bit more often rather than being in the city. Of evenings when they went out, they were out a lot during the week of evenings doing, just going out for dinner, that sort of thing.
COUNSEL:In that 15 month period, how often on average did your mother spend, or how often did Mal stay the night over at Croydon on a weekly basis? ---
CARLIE SINCLAIR: Like I say, it was normally the weekends that he would come over, but it would vary, it would vary. Sometimes it was just the Saturday, sometimes it was Friday, Saturday. Sometimes they weren’t there.
COUNSEL:How many times in a week was your mother absent from the Croydon house for the whole night? ---
CARLIE SINCLAIR: Probably the same. About three nights a week on average, but I would say it varied a lot. She would sometimes have her Toast Master things on so couldn’t stay out there.

There may have been some inconsistency between Carlie’s statement that Malcolm’s house was ‘closer to work’ (although she did not specify whether this was her mother’s or Malcolm’s work) and his Honour’s observation that Malcolm and Marlene retained separate residences partly because this was convenient for work. However, Carlie’s evidence, read in context, confirms that the couple spent a significant amount of time sleeping in each other’s homes.

So far as ground 11 is concerned, I consider that there was sufficient evidence to support his Honour’s finding that Marlene cared for Malcolm emotionally and physically (for example by driving him to the doctor and applying skin cream), although she did not spend much time cleaning his house. Married and de facto couples divide responsibility for cooking and cleaning in many different ways. The fact that Marlene did not act as a housekeeper for Malcolm or clean his home, does not demonstrate the absence of a close and committed relationship between them. Malcolm was in his late 50s, and had lived independently for most of his adult life. He had always been an untidy man, and it was not Marlene’s responsibility to control or manage his behaviour. His Honour accepted that Malcolm did not want Marlene to clean up after him, but preferred to spend time doing other things with her. As he noted, Campbell and Noreen and Shirley Andersson had all unsuccessfully attempted to persuade Malcolm to clean up his house. He had declined Noreen’s offer to arrange a housekeeper for him.

Nor did his Honour wrongly accept Marlene’s evidence that she and Malcolm decided to keep their relationship private from his brother and some friends of the Forsyth family. If no-one had been aware of the relationship, Marlene’s evidence would not have been credible, but this was not the case. Their relationship as a couple was known to Marlene’s mother and daughter and to the friends with whom they socialised. Marlene’s loss was acknowledged by their friends in the many letters of condolence sent to her after Malcolm’s death.

The trial judge’s conclusion as to the nature of the relationship between Malcolm and Marlene was based both on the objective evidence to which I have referred and on his assessment of Marlene’s and the other witnesses’ credibility. His Honour did not make unfavourable findings about the evidence of Campbell and Noreen, but considered that, for reasons which were difficult to understand, Malcolm had chosen not to tell them about his relationship with Marlene.

In Fox v Percy[21] Gleeson CJ, Gummow and Kirby JJ discussed the approach to be taken by an appellate court in deciding whether to set aside findings of fact made by a trial judge which were based on the credibility of witnesses. They said:

On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record.[22]

[21](2003) 214 CLR 118.

[22]Ibid 125-6 (Gleeson CJ, Gummow and Kirby JJ) (citations omitted).

This Court does not have the advantage which his Honour had in seeing and hearing the evidence given by Marlene and the witnesses which she called. His Honour’s view as to the credibility of Marlene and her witnesses played a central role in leading the judge to his conclusion. As this Court acknowledged in Fifteenth Eestin Nominees Pty Ltd v Rosenberg,[23] an

appellate court [is] not relieved of its function (that is, conducting an appeal by way of rehearing) merely because the trial judge [has]had reached a conclusion influenced by an opinion concerning the credibility of witnesses. In particular cases, ‘incontrovertible facts or uncontested testimony will demonstrate’ that the trial judge’s decision is wrong, even when that decision is based on credibility findings. Further, [in Fox v Percy] their Honours said:
‘In some, quite rare, cases although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.’[24]

[23][2009] VSCA 112, [117].

[24](2003) 214 CLR 118, 128 (Gleeson CJ, Gummow and Kirby JJ) (citations omitted).

For the reasons I have already given, this is not such a case. I consider that the contention that his Honour erred in characterising the nature of the relationship is hopeless.

I now turn to the second issue, which is whether his Honour correctly held that the respondent was a person for whom the deceased had responsibility to make provision, within the meaning of that expression in s 91 of the Act.

Grounds of appeal 1 to 3, 6, 12 and 14 – responsibility to provide
The legislative background

Marlene’s claim was made under Part IV of the Act, which confers jurisdiction on the Court to order provision out of a deceased person’s estate, in circumstances where the deceased’s will[25] does not make adequate provision for the proper maintenance and support of a person, for whom the deceased had responsibility to provide.[26]
[25]The provision also applies where distribution on intestacy under Part 1, Division 6 or a combination of the will and the operation of intestacy provisions does not make adequate provision, see s 91(3).
[26]Act, s 91(1) and (3).

The original Victorian legislation, like the equivalent legislation in other States and Territories, was modelled on the Testator’s Family Maintenance Act 1906 (NZ). Legislation in all States and Territories originally limited those who could make a claim for provision to members of the deceased person’s immediate family (usually his widow and children). The statutory list of eligible applicants (which varied between the States) was later extended to a broader range of family members.[27] In Victoria, the Act was amended in 1998[28] to permit the court to make an order in favour of any person for whom the deceased had responsibility to provide, if his or her will did not make adequate provision for the applicant’s proper maintenance and support.
[27]See IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia (2^nd ed, 1989), 483-7.
[28]The provisions came into operation on 20 July 1998.

In the second reading speech accompanying the amending legislation, the Attorney-General explained the reasons for this change.

These provisions are quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased’s estate from making a claim. The need for amendments to the act to enable a wider category of persons to make testator’s family maintenance applications has been recognised for a while …
This bill introduces amendments to the act to enable a wider group of people to apply to the court for testator’s family maintenance. The bill empowers the court to make an order for provision out of the estate of a deceased person for the maintenance and support of a person for whom the deceased had responsibility to make provision. The bill does not include a list of eligible applicants for testator’s family maintenance, instead leaving it to the court to determine on a case-by-case basis whether provision should be made for a particular applicant, which is a more equitable method of dealing with testator’s family maintenance applications. To ensure that only genuine applications are made, the bill allows the court to order costs against an applicant if the court is satisfied that the application was made frivolously, vexatiously or with no reasonable prospect of success.[29]

[29]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2007, 436 (The Honourable Jan Wade, Attorney-General).

Under s 91(4) of the Act, an application for provision now requires determination of three questions:

·whether or not at the date of his death the deceased had responsibility to make provision for the claimant’s proper maintenance and support;
·whether or not the distribution of the estate of the deceased person makes adequate provision for the proper maintenance and support of the person; and
·if not, the amount of provision which should be made, and any other matter relating to an application for an order.

In answering each of those questions s 91(4) requires the Court to have regard to:

(e)any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f)any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g)the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h)the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(j) the age of the applicant;
(k)any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l)any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m)whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

(n)      the liability of any other person to maintain the applicant;
(o)       the character and conduct of the applicant or any other person;
(p)      any other matter the Court considers relevant.[30]

[30]Administration and Probate Act 1958, s 91(4).

In deciding whether to exercise its limited jurisdiction to order provision from the estate of a deceased person, courts have given considerable weight to freedom of testation. It is only if the deceased has failed to make adequate provision for the proper maintenance and support of the applicant, that an order interfering with the terms of a will is justified. The test which was traditionally applied was whether a ‘wise and just’ testator would have considered that he or she had a moral duty to make further provision for the applicant.[31]
[31]Bosch v Perpetual Trustee Company [1938] AC 463, 479; Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134, 147; Goodman v Windeyer (1980) 144 CLR 490, 497.

Although the statutory gloss expressed in the notion of ‘moral duty’ was criticised by Mason CJ, Deane and McHugh JJ in Singer v Berghouse,[32] courts have continued to rely on this concept to describe the circumstances in which a testator has an obligation to provide for the maintenance and support of another person. In Grey v Harrison Callaway JA (Tadgell and Charles JJA agreeing) said that ‘the authorities so strongly favour the criterion of what a wise and just testator would consider his moral duty that we are not free to jettison it.’[33] Similarly, in Collicoat v McMillan[34] Ormiston JA said that

the expression ‘moral duty’ remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them.[35]

[32](1994) 181 CLR 201, 209.

[33][1997] 2 VR 359, 365. See also Tadgell JA (at 361).

[34][1999] 3 VR 803.

[35]Ibid [45].

Following the 1998 amendments, Victorian courts continued to refer to the moral duty of the testator in determining whether the Court has jurisdiction to make an order under Part IV of the Act. In Schmidt v Watkins,[36] Harper J said that the 1998 amendments were ‘part of a continuum rather than a complete break from the past’ and that

a duty to provide in one’s will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of debtor or creditor. Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so. Generally speaking, however a domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner’ would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility (although, of course in the particular case that responsibility might not arise or might have already been discharged).

[36][2002] VSC 273.

Harper J also observed that although care provided for a deceased by the applicant was not an irrelevant consideration in determining whether the Court should make an order, the purpose of the legislation was not to ‘ensure the generosity is adequately rewarded or reciprocated’.[37]
[37]Ibid [22]-[25].

In Blair v Blair[38] Chernov JA said that notwithstanding the requirements of s 91(4)

it is probably apt to describe the obligation of the testator that forms the subject of the enquiry under sub-ss (1) and (3) as a moral obligation, as that concept has been explained in cases that preceded the recent amendments to Part IV of the Act, including the decision of Ormiston J in Collicoat v McMillan[39] and Grey v Harrison.[40] Thus, it is clear enough that the ‘responsibility’ of which sub-s (1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant.[41] Similarly, sub-s (3) is essentially concerned with whether the deceased – as a wise and just testator – has fulfilled his moral obligation to make adequate provision for the claimant’s proper maintenance and support.[42] Given, however, that the court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of sub-s 91(4) when determining the jurisdictional issues, characterisation of the deceased’s relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Part IV of the Act.[43] Be that as it may, it should be noted that while the criterion in each of paragraphs (e)-(o) of sub-s 91(4) is concerned with a specific matter, paragraph (p) is open ended, enabling the court to consider ‘any other matter [it] considers relevant’ and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding sub-paragraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator’s moral obligation to the claimant.[44]

[38](2004) 10 VR 69 (‘Blair’).

[39][1999] 3 VR 803 at 815-824, a case which was decided on 30 October 1995.

[40][1997] 2 VR 359, 361 (Tadgell JA), 364-6 (Callaway JA), where the decision of Ormiston JA in Collicoat was cited with approval.

[41]See Coombes v Ward [2004] VSCA 51 at [2], [6], [7] (Winneke P), [11]-[13] (Chernov JA) and [27], [28] (Bongiorno AJA). In that case, this Court upheld the decision of the trial judge who rejected the claim by the deceased’s adult son for further and better provisions out of his late mother’s estate under Part IV of the Act because he failed to establish the threshold requirement prescribed by sub-s (1).

[42]I mention for completeness that in Singer v Berghouse (No 2) (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ expressed doubt (at 209) that the well-known statement of Salmond J in In Re Allen; Allen v Manchester (1922) 41 NZLR 218, 220-1 reflected the correct approach to be adopted by a court exercising jurisdiction under legislation akin to that of Part IV of the Act. This obiter dictum was criticised by Ormiston J in Collicoat (at 815-9) and by this Court in Grey v Harrison by Tadgell JA (with whom Charles JA agreed) (at 360-1), and by Callaway JA (at 365-6).

[43]See Coombes v Ward [2004] VSCA 51, [7] (Winneke P), [12] (Chernov JA).

[44](2004) 10 VR 69, 75-6.

Nettle JA agreed with Chernov JA and added the following observations about the continuing relevance of the conception of moral duty to the jurisdictional questions in s 91(1) and (3) of the Act. He said:

The court is bound in answering each of those question to have regard to the matters mentioned in ss 91(4)(e) to (o) and, pursuant to s 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in ss 91(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.[45]

[45]Collicoat v McMillan [1999] 3 VR 803, 815 (Ormiston JA).

In Blair[46] Chernov JA discussed how ss 91(1) and 91(4) should be applied in deciding whether the jurisdictional requirements for the Court to exercise its discretion were satisfied. He said that s 91(1) of the Act required the claimant to prove that the deceased had a responsibility to make provision for the claimant’s proper maintenance and support and that s 91(3) required the claimant to prove that the will did not make adequate provision for the claimant’s proper maintenance and support. Section 91(4) provided that in determining these jurisdictional issues certain factors were to be considered. He said:

It is apparent, therefore, that there is likely to be a substantial overlap in the matters that the court needs to take into account when determining whether the two jurisdictional requirements have been satisfied. Such matters are not, however, identical. For example, when considering whether the testator had ‘responsibility’ to make provision for the claimant, the terms of the disposition will be largely, if not wholly, irrelevant because the essential enquiry will be concerned with the relevant circumstances that occurred before the date of death of the testator. On the other hand, since the focus of the enquiry under sub-s (3) is on the adequacy or otherwise of the provisions of the will, its terms will obviously be of critical importance to the resolution of that issue. But, at least in one important respect, there is commonality in the approach that must be adopted in the analysis of the two different jurisdictional questions raised by the relevant sub-sections. The enquiry under each necessarily involves, as I have said, consideration of the relevant factors specified in paragraphs (e) to (p) of s 91(4).[47]
[46](2004) 10 VR 69, 75.
[47]Ibid 75.

Grounds of appeal

His Honour held that the nature of the relationship between Malcolm and Marlene imposed a moral duty to make adequate provision for her proper maintenance and support. Since he had made no provision for her in his will, the Court had jurisdiction to make an order under Part IV.

The appellant appeals against this conclusion on the following grounds:

1.The learned trial judge erred in the construction which he placed on the expression ‘responsibility to make provision’ in s 91(1) of the Administration and Probate Act 1958 (‘the Act’).
2.The learned trial judge erred in finding, on the evidence before the Court, that the respondent was a person for whom the deceased had responsibility to make provision within the meaning of that expression in s 91 of the Act.
3.The learned trial judge erred:
3.1In failing to relate the evidence to, and make findings in respect of each of the specific criteria set out in s 91(4)(e)–(p) of the Act;
3.2in failing to have regard to the matters set out in paragraphs (f) and (m) of s 91(4) of the Act;
3.3in basing his decision entirely on paragraph (e) of s 91(4) and on the loving and sexually committed relationship which he found to exist between the deceased and the respondent.

6.The learned trial judge erred in his interpretation of, and the weight which he gave to, the evidence of Mr and Mrs Gullick (Reasons [34]–[36]) and in particular:
6.1in treating Mr and Mrs Gullick as corroborating each other;
6.2in ignoring the discrepancies between Mrs Gullick’s Affidavit and her evidence at Transcript p.277-278;
6.3in ignoring the discrepancies between Mrs Gullick’s evidence and that of her husband;
6.4in drawing the inference (Reasons [39]) from the evidence of Mr and Mrs Gullick and from his speculation as to the character of Malcolm that the deceased had formed a ‘fixed resolve to take, in the future’, steps to provide financial security for the respondent.

7.The learned trial judge erred in building on the inference in Ground 6.4 and in drawing the further inference that if the deceased intended to provide for the respondent should she survive him, this ‘would constitute a powerful reason why I should conclude that Mr Forsyth recognised that he had a responsibility to make provision for Mrs Sinclair’s financial security should he die before her’ (Reasons [38]), particularly having regard to:
7.1the inconsistent evidence of Mr Gullick and Mrs Gullick in relation to this matter;
7.2the fact that any representation made was as to what the deceased had already done, not what he ‘intended’ to do;
7.3the failure of the respondent to institute divorce proceedings until after the death of the deceased;
7.4the matters set out in Grounds 4.4 to 4.11;
7.5the matters set out in Grounds 10.2;
7.6the fact that the inferred ‘recognition’ does not follow logically from the inferred ‘intent’.

12.Alternatively to Ground 2, the learned trial judge erred in finding, on the evidence before the Court, that the deceased’s Will did not make adequate provision for the proper maintenance and support of the respondent.
14.The learned trial judge’s reasons are insufficient in that he found the respondent was a person for whom the deceased had responsibility to make provision without indicating how and in what way paragraphs (e), (f), (g), (h), (j), (l) and (m) of s 91(4) of the Act applied to the facts before him. In particular his Honour failed to indicate:
14.1what obligations and responsibilities, if any, within paragraph (f) were taken into account and how they were taken into account;
14.2how the size and nature of the estate of the deceased and the ownership in common of the former parental home was taken into account;
14.3precisely what financial resources of the respondent were taken into account and how they were taken into account;
14.4what matters falling within paragraph (l) were taken into account and how they were taken into account;
14.5what matters falling within paragraph (m) were taken into account and how they were taken into account;
14.6the weight that his Honour gave to the comparative incomes of the deceased and the respondent;
14.7the weight that his Honour gave to any possible liability of the respondent’s husband to maintain her or to the effect of any property settlement reached between the respondent and her husband;
14.8the way in which his Honour calculated the amount of the provision to be made for the maintenance and support of the respondent.

Counsel’s submissions

Counsel for the appellant submitted that even if the learned judge had correctly held that the couple had a close and loving relationship, and were emotionally dependent upon each other, his Honour had erred in concluding that the deceased had a moral responsibility to provide for Marlene’s maintenance. Further, his Honour had not adequately set out the path of reasoning supporting that conclusion or sufficiently explained how his factual findings related to the matters he was required to consider under s 91(4).

In relation to s 91(4)(e), it was submitted that there was no family relationship between Malcolm and Marlene. The words ‘other relationship’ in the sub-section were said to derive their colour from the earlier reference to a ‘family relationship’ in the sub-section. It was submitted that (e) required consideration of whether the deceased and the applicant had a relationship which resembled or was equivalent to the type of family relationship from which notions of moral duty and obligation were commonly derived. [48]
[48]Unger v Sanchez [2009] VSC 542, [74].

The fact that the couple maintained separate dwellings and residences, and were not financially dependent on each other and that Malcolm’s relatives and family friends were unaware of the relationship, indicated that they were not ‘a conventional de facto couple’. The nature of their relationship did not give rise to a moral duty on the testator to provide for Marlene, or provide any basis for limiting Malcolm’s freedom of testation.

Section 91(4)(g) required his Honour to take into account the size and nature of the estate. Malcolm’s half interest as tenant in common in the Clonarg St property was the major asset in his estate. It was submitted that other than referring to the value of the estate, his Honour did not directly consider the size and nature of the property and did not give sufficient weight to the fact that this was the former matrimonial home of the brothers’ deceased parents or take account of whether any order made in favour of Marlene would necessitate its sale.

Section 91(4)(h) required his Honour to consider the financial needs of the applicant and of beneficiaries under the will (in this case Campbell). Counsel for the appellant submitted that his Honour did not consider Campbell’s financial needs, other than noting that it was unlikely that he would have been able to make a successful Part IV claim himself. He also submitted that the applicant’s earning capacity was greater than that of the deceased.

Under s 91(4)(k) his Honour had referred to the care provided by the applicant to Malcolm, but it was submitted that the learned judge had given no weight to the care provided by his brother and his wife, when he convalesced at their home after leaving hospital.

It was submitted that s 91(4)(l) was irrelevant because there was no evidence of any benefits previously given by the deceased to the applicant and that his Honour had not taken account of the matters in s 91(4)(m).

The appellant’s counsel further submitted that Malcolm’s alleged acknowledgment to Mr and Mrs Gullick that he had provided for Marlene did not demonstrate that he had a moral responsibility to do so. Even if he had had a fixed resolve to provide for her this did not establish the existence of a duty to make adequate provision for Marlene’s proper maintenance and support. Further, his Honour should not have accepted the evidence of Mr and Mrs Gullick, or treated the evidence of each as corroborating the other, because their evidence was in fact contradictory.

Counsel for the respondent submitted that his Honour had considered the relevant sub-paragraphs of s 91(4) and had adequately explained his reasons for concluding that Marlene was a person for whom Malcolm had responsibility to provide.

The extension of s 91 to permit people falling outside defined categories to apply for further provision recognised that a testator who is not related by marriage or blood to the applicant may have a moral duty to make adequate provision for that applicant’s proper maintenance and support. His Honour had correctly focussed on the particular characteristics of the relationship between Malcolm and Marlene, rather than attempting to fit it into a preconceived category. Prevailing community standards were relevant in deciding whether a testator had a moral duty to provide for a particular person’s maintenance and support and it was not contrary to these standards to find that Malcolm should have provided for Marlene.

It was submitted that his Honour had taken proper account of the nature and size of the deceased’s estate under s 91(4)(g). The appellant could not rely on any assumption that the family home would not be sold, as no evidence had been given on this matter. Further, if Campbell had wished to retain his parents’ home he could have raised sufficient finance to buy out Marlene’s share.

Counsel for the respondent also submitted that his Honour had properly given weight to the evidence of Mr and Mrs Gullick that Malcolm had told them that Marlene would ‘not have a money worry in the world’ as he had ‘made provision for Marlene for the rest of her life‘. It was appropriate to take account of the fact that the deceased had himself recognised he had a responsibility to provide for Marlene’s financial security if he pre-deceased her.

Counsel for the respondent further submitted that there was no basis for setting aside his Honour’s findings that the Gullicks’ evidence was truthful. The only significant difference between their evidence was that Mrs Gullick had said she was present during the conversation between Malcolm and her husband, whereas her husband had said that only he and Malcolm were present. Both agreed that Marlene was not present. This variation in recollection was not pertinent because of their broad agreement as to what was said. His Honour was not required to find that the Gullicks’ evidence was not credible, in circumstances where their memory of the surrounding circumstances of the conversation were likely to have been affected by the passage of time.

Counsel for the respondent submitted that although his Honour did not specifically describe Marlene and Malcolm as de facto partners that was, in fact, the nature of their relationship, although Marlene maintained a separate residence and they were financially independent. His Honour had accepted Marlene’s evidence that she and Malcolm planned at some time in the future to pool their assets in retirement and to marry. This factor also supported his Honour’s finding that Malcolm had a moral responsibility to provide for Marlene.

Conclusion

Whether a testator had a duty to make adequate provision for the proper maintenance and support of an applicant under Part IV is ultimately a value judgement.[49] The burden of persuading the Court that the deceased had that duty lies on the applicant. However the circumstances in which a testator will be regarded as having a moral duty to make adequate provision for the proper maintenance and support of another person are not static, but evolve in accordance with prevailing community views and attitudes. In McKenzie v Topp[50] Nettle JA observed that:

the Court is not lightly to interfere with freedom of testation. But in the end it will do so if the results of that freedom constitute a departure from the standards of the wise and just [testator], and it is the standards of the wise and just [testator] of today, not of an era ago, that are pertinent to that assessment.[51]

[49]Schmidt v Watkins [2002] VSC 273, [7].

[50][2004] VSC 90, [55]. See also [58].

[51]White v Barron, (1980) 144 CLR 431, 440; Kearns v Ellis (Unreported, New South Wales Court of Appeal, 1983); Permanent Trustee Company v Fraser (1995) 36 NSWLR 24, [16]; Baird v National Mutual Trustees, unreported, 22 November 1995; Collicoat v McMillan, 819 [45]; Allan v Allan [2001] VSC 242, [66]; Penn v Richards [2002] VSC 378, [28].

In Lee v Hearn[52] this Court also acknowledged the relevance of changes in community attitudes in determining whether a deceased person had a moral duty to provide for the applicant.
[52](2005) 11 VR 270, 274 (Callaway JA), 286 (Batt JA). See also Unger v Sanchez [2009] VSC 541, [66].

I would reject the appellant’s submission that s 91(4) requires the existence of a relationship akin to a family or blood relationship. In Schmidt v Watkins,[53] Harper J (as he then was) said that ‘[a]ccording to modern notions of what is right, some may properly look to others for maintenance and support even though there is no blood relationship between them’.[54] In that case it was held that the business relationship which existed between the deceased and the applicant did not give rise to a moral duty to provide.
[53][2002] VSC 273.
[54]Ibid [9].

In Unger v Sanchez[55] Kaye J said that it was plain from the language of s 91 of the Act that the plaintiff need not be a member of the deceased’s family, although he said that it would be a rare or exceptional case in which a testator was held to have a moral duty to provide for the maintenance and support of a neighbour or close friend, even where that person had given invaluable service to the testator.
[55][2009] VSC 541, [70].

In this case Marlene was not simply one of Malcolm’s close friends. She had an exclusive sexual relationship with him, and was recognised as his partner by their joint friends and Marlene’s family. Her relationship with him had lasted for 12 years and they planned to marry.

Although his Honour did not explicitly find that Malcolm and Marlene were de facto partners, their relationship could have been so described. In New South Wales a woman living with the deceased person as his wife on a bona fide domestic basis was an eligible applicant for testator’s family maintenance under s 7 of the Family Provision Act 1982.[56] In Ward v Anderson,[57] the applicant stayed at the deceased’s home about three to four nights a week but maintained her own residence, 35 minutes drive away, primarily because it was close to the hospital at which she was employed. The couple kept their financial affairs separate and on occasions the claimant lent the deceased money. They were known by others to be partners and the deceased had given the applicant an engagement ring and told others that they intended to marry, though they had not decided when this would occur. Despite the fact that the couple did not live together, Waddell CJ in Equity held that the applicant was living with the deceased as his wife on a bona fide domestic basis and was therefore an eligible applicant under the legislation.[58] Ward v Anderson is not directly relevant in Victoria, because s 91 of the Act does not require an applicant to have a specified relationship with the deceased. Nevertheless it indicates that a de facto relationship may exist when the couple have separate residences and are not financially dependent on each other.
[56]Under s 7, the Court was required to be satisfied that the claimant was an eligible person before determining whether an order for provision should be made. Eligible person was defined under s 6 to include a person ‘a woman who, at the time of [the deceased’s death], was living with the deceased person as his wife on a bona fide domestic basis’.
[57](Unreported, Supreme Court of New South Wales, Waddell CJ in Eq, 6 June 1989).
[58]See also the decision of Master McLaughlin in Dunk v Public Trustee [2003] NSWSC 37, where the couple were held to be de facto partners, despite the fact that they did not live together all the time.

It seems to me uncontroversial that, according to current community standards, a de facto partner may have a moral duty to make adequate provision for the proper maintenance and support of the other partner. In Schmidt, Harper J accepted that if the applicant had established that he and the deceased woman had lived together as de facto partners for 10 years, during which he had looked after her, the applicant would have been a person for whom the deceased had responsibility to provide. Of course, the other factors listed in s 91(4) will also be relevant in deciding whether a testator owes a moral duty to provide for a de facto partner.

Further, even if Malcolm and Marlene were not accurately characterised as a couple with a close and committed relationship, who did not live together, his Honour did not wrongly conclude that their commitment to each other and the other matters he was required to consider under s 91(4) gave the Court jurisdiction to make an order. His Honour said that s 91(4) (e), (f), (g), (h), (j), (l) and (m) were particularly pertinent in deciding whether a wise and just testator would have thought it his moral duty to provide for Marlene.

In addition to the nature of the couple’s relationship, his Honour took account of the following matters:

·the deceased had an affectionate relationship with his brother and his brother’s family,[59] but it was unlikely that he would have been held to have a responsibility to provide for his brother;[60]
·Malcolm’s estate, including his half share as tenant in common with his brother in the Clonarg St property was worth $791,000;
·Marlene was aged 57 and likely to retire in the next few years;
·the couple were largely financially independent, although they often shared recreational and other expenditure;[61]
·without provision from Malcolm’s estate Marlene would have real difficulty in discharging her mortgage and would not have sufficient income for her maintenance and support after she retired;[62] and
·Mr and Mrs Gullick’s evidence that Malcolm had indicated he intended to provide for Marlene if she survived him, although he did not make a will in her favour.

[59]Reasons, [6].

[60]Ibid [5].

[61]Ibid [32].

[62]Ibid [47]-[48].

I now turn to the specific complaints made by the appellant about his Honour’s application of the factors in s 91(4). Ground of appeal 3.2 complains that his Honour had no regard to the deceased’s obligations to others. Campbell was in full-time employment. Although he was 61 at the date of the trial, there was no evidence that he could not support himself and his family. His home, of which he was a joint tenant with his wife, was valued by the municipal council at $647,000, and was subject to a mortgage securing a debt of about $21,000 owed to the St George Bank. He is entitled to about $600,000 in superannuation when he retires.[63] His gross income for the financial year ending 30 June 2007 was $77,690. His Honour’s findings that ‘[Campbell] was never dependent on his brother’ and that it is most unlikely that a court would have held that his relationship with Malcolm gave rise to a moral duty on the part of the testator to provide for his brother, were clearly correct.[64] The presence or absence of a moral duty owed to a person other than the applicant is relevant in assessing whether the testator had a moral duty to provide for Marlene.[65]
[63]The spreadsheet detailing his superannuation benefits does not appear to have been provided to the Court, though the plaintiff’s counsel did refer to a $600,000 sum during his closing address.
[64]Reasons, [5].
[65]McKenzie v Topp [2004] VSC 90, [47].

Ground of appeal 3.2 also complains that his Honour had no regard to the obligations owed by the deceased to the applicant (s 91(4)(f)) or to whether Marlene was maintained wholly or partly by Malcolm before his death (s 91(4)(m)). It was common ground that Marlene was not financially dependent on Malcolm during his life time, though they often shared the expenses of holidays and meals. It is clear that his Honour took these matters into account in deciding that Malcolm had a moral duty to provide for Marlene.

Ground of appeal 14.2 alleges that his Honour did not indicate how he had taken account of the fact that the brothers were tenants in common of the former family home. I would accept the submission of the respondent’s counsel that Malcolm’s tenancy in common with his brother in their parent’s former home had little if any weight in deciding whether the Court had jurisdiction to make an order. Campbell was not living in Clonarg St. Any order made by the Court would not have resulted in his eviction from his home. There was no evidence of any agreement between the brothers that the house should be retained. The fact that the home was the previous residence of Campbell and Malcolm’s deceased parents did not impose an obligation on Malcolm to preserve that asset.

Ground of appeal 14.4 complains of his Honour’s failure to explain how s 91(4)(l) was relevant to his decision. His Honour referred to that sub-section, but did not explain its relevance. In my opinion that omission was immaterial, because Marlene’s claim was not based on the fact that she had provided any financial benefits to the applicant. His Honour made adequate reference to her care for the deceased and her emotional commitment to him.

Grounds of appeal 14.6 and 14.7 allege that his Honour gave insufficient weight to the comparative incomes of the applicant and the deceased, to the fact that she might benefit under a property settlement with her husband or to the possibility that her husband might have an obligation to maintain her. His Honour took account of the fact that Marlene had repaid money owed to Malcolm out of the proceeds of her property settlement and it was common ground that she was living in the former matrimonial home, which her husband had left. There was no evidence that Marlene’s ex-husband was in any position to maintain her. His Honour properly referred to the fact that Marlene was approaching retirement age and to her limited capacity to provide for herself after she retired, given her gross salary of $70,000 per annum and mortgage of $286,000.[66] She also had a bad back from years of lifting, a skin condition which required her taking antibiotics for the past 16 years and had recently been diagnosed with asthma.
[66]Reasons, [47].

Ground of appeal 6 relates to his Honour’s reliance on the evidence of Mr and Mrs Gullick. The fact that these witnesses had no effective recollection as to whether Mrs Gullick was present during the conversation between Malcolm and her husband does not require this Court to reject his Honour’s finding that they were credible witnesses.

Whilst Part IV of the Act does not give the Court power to make an order simply to give effect to the intention or promise of a deceased person to provide for someone else,[67] such a statement of intention is not an irrelevant consideration. In MacEwan Shaw v Shaw[68] Dodds-Streeton J apparently considered that an assurance by the deceased that he would fund his grandchildren’s secondary education would be relevant in deciding whether he had a moral duty to provide for them,[69] although she did not accept the evidence that he had made this assurance. A statement made by the deceased about the provision he or she has made or intends to make for the applicant may be taken into account under s 91(4)(p).
[67]Such legislation exists in New Zealand: Law Reform (Testamentary Promises) Act 1949 (NZ).
[68][2003] 11 VR 95.
[69]Ibid 112. See also McKenzie v Topp [2004] VSC 90, [46].

Finally, the appellant’s counsel submitted that his Honour’s reasons for holding that Malcolm had an obligation to provide for Marlene, having regard to the criteria set out in s 91(4), were inadequate.

His Honour first set out his factual findings and then said that he had taken account of all the matters in s 91(4)(e) to (o). It might have been preferable for him to refer initially to the statutory criteria and then explain how particular factual findings related to them. Nevertheless, a reading of the judgment as a whole clearly discloses his Honour’s path of reasoning. I consider that his Honour fully discharged his obligation to explain how the statutory criteria applied in the circumstances of this case. Although his Honour was required to give appropriate weight to the principle of freedom of testation and to the terms of Malcolm’s will, that will was made many years ago, before he formed a relationship with Marlene. This must necessarily reduce the emphasis to be placed on Malcolm’s desire in 1973 to leave his property to his brother.

This ground of appeal is not made out.

The exercise of the discretion

Finally, it is necessary to consider whether his Honour’s discretion miscarried in ordering that Marlene should receive half of Malcolm’s estate. Ground of appeal 13 alleges that:

Alternatively to Ground 12, the learned trial judge’s discretion miscarried when he ordered that provision be made for the respondent out of the estate of Malcolm Bailey Forsyth to the extent of one half of that estate.

Counsel for the appellant contended that his Honour had not clearly explained the basis for the order which he made. He submitted that his Honour had referred to the factors in s 91(4) when considering whether the deceased had a moral responsibility to provide for Marlene, (‘the jurisdictional question’) but had not revisited these factors for the purposes of deciding the order which should be made. This was said to be an error because it might be necessary to give these factors different weight at the stage of deciding the amount of the order. It could be inferred from his Honour’s reasons that after he had decided the jurisdictional question in favour of Marlene he had simply determined the order which should be made, without weighing these factors again.

The judge’s determination of the order which should be made required the

‘application of an instinctive synthesis, a process that has been approved by this court in like cases where an arithmetic calculation was not possible’.[70] His Honour made findings about which factors in s 91(4) were applicable and which factors were not. It was not necessary for him to deal with those factors again, except to the extent that he considered that the exercise of the discretion required them to be given different weight. On the facts of this case there was no reason to do so.

[70]Blair (2004) 10 VR 69, 81 (Chernov JA).

An appeal against the exercise of the judge’s discretion to determine the amount of the provision to be made in favour of Marlene is governed by the principle in House v The King.[71] In Blair Chernov JA endorsed a comment by a trial judge that ‘[e]xactness in the calculation of [the relevant amount] is impossible’.[72] There is no basis for concluding that his Honour failed to take account of relevant factors, or took account of irrelevant factors, in ordering that Marlene receive half of Malcolm’s estate. Nor did the order fall outside the range of orders which could be made in the reasonable exercise of the judge’s discretion.
[71](1936) 55 CLR 499; Singer v Berghouse (No 2) (1994) 181 CLR 201, 212 (Mason CJ, Deane and McHugh JJ).
[72](2004) 10 VR 69, 81.

This ground fails. For these reasons I would dismiss the appeal.

REDLICH JA:

The nature of the relationship of the plaintiff and the testator lacked a number of features generally found in a de-facto relationship. The plaintiff and the testator did not reside together. The plaintiff was not financially dependant upon the testator. She made no financial or other significant contribution to the testator’s circumstances. Ordinarily a moral duty to provide maintenance and support would

not arise unless one or more of such indicia of responsibility were present. But the absence of such features in a relationship does not preclude the possibility that such a moral obligation may arise. Although I consider the present case to be at the margin, I agree with Neave JA, essentially for the reasons she has given, that having due regard to the relevant factors enumerated in s 91(4) of the Administration and Probate Act 1958, the findings made by the trial judge were sufficient to confer upon the court, jurisdiction to make the order that he did.

The trial judge found that the plaintiff and the testator had a long standing intimate and caring relationship. They had a deep affection for each other. They shared on a daily basis, nearly all of the significant moments of their lives. The plaintiff gave the testator some level of care and support. Their ‘emotional and spiritual bonds were very strong’.[73] They had made a commitment to living together in the future. The testator had said that he intended to make provision for the plaintiff in the event that she survived him. These findings, though challenged on appeal, were plainly open on the evidence. I am not persuaded that the conclusions reached by the trial judge should be disturbed.
[73]Reasons, [41].

The appeal should be dismissed.

HABERSBERGER AJA:

I agree with Neave JA, for the reasons given by her Honour, that the appeal should be dismissed.

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[2010] VSCA 147

22 June 2010