Forsyth v Sinclair

[2010] VSCA 147

Victorian Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Testator's family maintenance
3. › Claim by domestic partner
4. › Responsibility to make provision
5. › Whether deceased had moral duty to provide for long-term intimate partner who maintained separate residence
6. › Whether relationship akin to de facto relationship sufficient
7. › Administration and Probate Act 1958 (Vic), s 91(1), (3), (4)
1. Succession
2. › Testator's family maintenance
3. › Quantum of provision
4. › Exercise of discretion
5. › Whether award of half of estate within range of reasonable exercise of discretion
6. › Instinctive synthesis
7. › Administration and Probate Act 1958 (Vic), s 91
1. Appeal
2. › Standard of appellate review
3. › Findings of fact based on credibility
4. › Whether findings contrary to compelling inferences or glaringly improbable
5. › Fox v Percy [2003] HCA 22
1. Appeal
2. › Standard of appellate review
3. › Exercise of discretion
4. › House v The King [1936] HCA 40
5. › Whether trial judge failed to take account of relevant factors or took account of irrelevant factors

Quick Take

A long-standing, close and exclusive intimate relationship may give rise to a moral duty to provide under Part IV of the Administration and Probate Act 1958 (Vic), even where the parties maintained separate residences, were financially independent, and the relationship was not known to the deceased's family. The absence of conventional de facto indicia does not preclude a finding of responsibility to provide, though such cases may be 'at the margin'. A statement by the deceased of an intention to provide for the applicant is a relevant but not determinative consideration under s 91(4)(p).