Plaintiff v Defendant

Supreme Court of Victoria|2008-10-03|Before: HARPER J

TESTATOR'S FAMILY MAINTENANCE - Application for provision pursuant to Part IV, Administration and Probate Act 1958 - Application by plaintiff, claiming to be the domestic partner - Whether the particular relationship gave rise to moral responsibility to make provision - Plaintiff and deceased maintained separate households and were financially independent - Whether plaintiff in need of provision.

2 Malcolm Forsyth is the testator. He died on 1 July 2004. He was 63 years old, having been born on 21 April 1941. He died suddenly, at work, from a heart attack; the last of several from which he had suffered. It was thought, initially, that he had not left a will. Letters of administration were, by order of this Court made on 27 August 2004, granted to his only sibling, his brother Campbell Forsyth.

3 As it happened, a will was later discovered. It was dated 27 October 1973, and had therefore been made when Malcolm Forsyth was 32. He was then, as he continued to be for the remaining 31 years of his life, a bachelor. By his will, the testator appointed his mother and his brother as his joint executors. His mother, however, predeceased him; and, accordingly, Campbell Forsyth - as the sole remaining executor - applied to have the letters of administration revoked, and for a grant of probate of the will. The application was successful. Probate was granted on 11 November 2004. Mr Forsyth is therefore now the sole executor of his brother's 1973 will.

4 The deceased's estate is valued at approximately $791,000. Campbell Forsyth is the sole beneficiary. Among the assets of the estate is a half share in a property at 1 Clonarg Street, Burwood. This was the matrimonial home of the parents of the two brothers, and remained Malcolm's home address until his death. At that time, as it had been since the death of their parents, the property was jointly owned by Malcolm and Campbell as tenants in common.

5 As the executor and sole beneficiary of his brother's estate, Campbell necessarily has both the legal and beneficial interest in that estate. As such, of course, he could not be an applicant for provision under the Administration and Probate Act 1958. In any event, he was never dependent on his brother. Even had he received nothing under Malcolm's will, his financial position is such that it is doubtful whether he could successfully have claimed that Malcolm had a responsibility to provide for him.

6 The brothers were close. Campbell is married, and he and his wife Noreen - with whom Malcolm also shared an affectionate friendship - often entertained Malcolm for meals and on days of family celebration, such as birthdays and at Christmas. Malcolm was fond of children, and particularly fond of his nephews, the two sons of his brother.

7 The plaintiff, Marlene Sinclair, is the person with whom Malcolm enjoyed the relationship upon which her claim for provision under the Act is based. I am satisfied that it enriched the last 15 years or so of his life. She was born on 3 August 1947, and was therefore approaching 57 when Malcolm died. She married Robert Sinclair on 12 December 1970. They were divorced in November 2004, some four months after Malcolm's death. I am satisfied, however, that in February 1992 or thereabouts husband and wife ceased to sleep together. It is true that, with the exception of some 18 months during which Robert Sinclair was in New Zealand, they each continued to use the matrimonial home in South Croydon as a principal place of residence. Otherwise, however, they lived separate lives. The separation was not a bitter one; and both Robert and the plaintiff were and remain close to their son Kristian and their daughter Carlie, each of whom continued - at intervals - to use the South Croydon house as their home.

8 Mrs Sinclair met Malcolm Forsyth in 1989. He, a pharmacist, and she, a nurse, were both then employed by an organisation known as "Health and Life Care". They became friends. The friendship developed. Sexual relations commenced between them in April 1992. I accept Mrs Sinclair's evidence that on 4 April that year the two decided that they would become sexual partners to the exclusion of all others. And so it remained, for both of them, for the balance of Malcolm's life.

9 I need not recount all the evidence pointing to the maintenance of a loving and intimate relationship between the plaintiff and Malcolm Forsyth from 1992 onwards. Witness after witness spoke of it. None said anything else. Only Campbell and Noreen Forsyth were somewhat sceptical. Their scepticism is understandable, since Malcolm was not, I find, willing to allow them to be fully informed. They knew Marlene Sinclair as Malcolm's friend. They did not know of the breadth or strength of the friendship.

10 Yet the evidence leaves me in little doubt. I accept Mrs Sinclair's evidence that she met Malcolm Forsyth in 1989 when they became work colleagues. He was at a low point, having suffered a set-back in his career. For the next two or three years the friendship developed, with 8 October 1990 being marked thereafter by both of them as the date on which it became particularly significant. Then, in April 1992 they became sexually intimate. Shortly after that, Malcolm took up a twelve month appointment as a pharmaceutical consultant to the Maryborough Hospital in Queensland. Before he left, he arranged for two people to manage his affairs, albeit independently of each other. One was Mrs Sinclair; the other, Campbell Forsyth. Both had access to at least one of his bank accounts, and to his post office box. Both also had the key to his Clonarg Street home. From there, every Saturday, Marlene Sinclair spoke to Malcolm by phone. And he wrote to her, frequently. The correspondence, or some of it, is in evidence. There can be no doubt about its tenor. Unless Malcolm was a person who played false with others' affections (and was therefore the opposite of the considerate and generous person portrayed by both sides in this litigation) he was writing to someone he loved. It was a sentiment she reciprocated.

11 The unequivocal weight of the evidence is that the pair remained on intimately affectionate terms for the rest of his life. On his return to Melbourne from Maryborough, they spent the majority of the nights of each week together in the home of one or the other of them. This pattern was broken for another 12 months while he was working at a hospital in Bendigo. But even during this period, each week-end was devoted to joint activities, the cinema being an especial attraction. They shared the cost, as they shared the cost of all the myriad of things they did together.

12 Mrs Sinclair was a devoted member of three Toastmasters Clubs and of one Rotary Club. There were, of course, regular and frequent meetings for members. Those who were not members may or may not have been permitted occasional attendance at these; the evidence does not enable a confident conclusion. It must be the case, however, that a guest could hardly attend as a matter of routine without being required to join. Malcolm Forsyth was not a member, and so did not regularly attend ordinary meetings, if he attended any. But each club also held functions to which guests were invited: a total, excluding conventions, of more than one a month. It is at least broadly true to say that Mrs Sinclair and Malcolm Forsyth attended them all; and always as the loving domestic partners everyone took them to be. They were very much at home in each others' company. And he adopted her friends, as they adopted him.

13 Malcolm was therefore readily accepted by Mrs Sinclair's Toastmaster and Rotarian colleagues as her constant companion. Many assumed that they were married; and very happily married at that.

14 Just as Toastmasters held regular evening meetings, so they met in an annual conference. From about 1998, Malcolm Forsyth attended every one, always in his capacity as Marlene Sinclair's partner. They also enjoyed many joint holidays in addition to the conferences. Over and above all this, there were Toastmaster international conventions. The two travelled together to Atlanta Georgia for that held in 2003. Another was to be held in Toronto in 2004. They were booked to go, but Malcolm's death intervened. As with all their travel together, cost and accommodation were shared.

15 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 Mrs Sinclair, 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.

16 There is, I think, another point. Mrs Sinclair had released Malcolm Forsyth 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 Forsyth she met in 1989, and the Malcolm Forsyth his brother and Noreen Forsyth knew, was not the Malcolm Forsyth 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 Mrs Sinclair, he replied "we are just good friends". The subject was never again discussed.

17 This helps to explain why Campbell and Noreen Forsyth were and are unwilling to accept that Mrs Sinclair has a legitimate claim on Malcolm's testamentary beneficence. While they knew of her as a friend of Malcolm's, he continued to attend family gatherings, generally without her, as if his status as an unattached bachelor had not changed. He also came, without her, to their home for occasional meals. Since they are hospitable people, and since Malcolm continued to live (as they thought) at least basically alone at 1 Clonarg Street, Burwood, those occasional meals were not infrequent.

18 Campbell and Noreen Forsyth also assumed responsibility for caring for Malcolm after his two non-fatal heart attacks, and again when he was hospitalised with angina. They visited him in hospital after each of his three admissions there, and played host to him at their home during his convalescence. On the last of these occasions, Mrs Sinclair visited the patient, and the relatives who were his hosts. It was one of the few meetings she had with Campbell and Noreen.

19 While Malcolm often visited his brother and sister in law at their home, he never invited them inside his own. On the relatively infrequent occasions on which they met at the Clonarg Street address, they spoke on the front porch.

20 There was a reason for this. Malcolm had always been an untidy man; one of a largish proportion of the human race who either have an aversion to tidiness, or who would much rather be untidy than assume the burden of putting things away. Nearly all teenagers suffer from this condition. Some remain beholden to it throughout their lives. Malcolm Forsyth was one of those. In about 1989, he terminated the services of the housekeeper his parents had employed to keep the house clean. When, in 1997, Campbell entered the house for the last time while his brother was alive, the chaos was progressively dominating room after room.

21 This accords with the evidence of Noreen Forsyth. She ventured only very rarely into the interior of 1 Clonarg Street, although she had a key. As she said in examination in chief, she knew that her brother in law was embarrassed about it. Her last visit before Malcolm Forsyth's death occurred in about 2003. When, referring to his untidiness, she was asked whether she ever discussed with Malcolm "the rectification of that situation" she responded:

Many times, many times ... and he said ... I will be right, I will patter around, or whatever his words were, something like that, and little by little ... the house started to accumulate and accumulate and accumulate and ... around '92 ... the build up ... started into other rooms ... even when the parents were at home, Malcolm's ... bedroom at the back was chocker-block, books everywhere, papers slotted into books and into shelves everywhere. And he had also taken over ... the ... room which used to be Campbell's old bedroom, he had two enormous speakers that would have been half the size of this witness box each, in that room, he had a little loungeroom, and there were books piled on top of that and just everywhere in there, and he was starting to move things into the dining room and around the walls of the loungeroom. And when I used to go over, and I used to go over quite frequently ... I would go by and collect the mail, sort through the mail, he had so many periodicals in his mail, I put them in a pile just in the hallway just inside the front door, and take other mail that I thought was accounts or whatever back to Campbell and Campbell would attend to those, payment of those bills, and Malcolm periodically would reimburse him.

22 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?

23 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.

24 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).

25 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 Mrs Sinclair. 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.

26 The retention of separate residences is explicable in part by Mrs Sinclair'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.

27 When, after hearing of Malcolm's death, Campbell and Noreen entered 1 Clonarg Street, they knew very little of any of this. What they found, in addition to belongings scattered everywhere, was Mrs Sinclair. She was in grief and shock, because this was the morning after Malcolm's sudden death from his final heart attack, suffered at work the previous afternoon. As was to be expected, the meeting was somewhat awkward, although politeness was maintained. She was gathering her things, and making an attempt to do some tidying. What one would expect of the domestic partner of someone who had recently died. But 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.

28 So this litigation has been fought out to the end. It has indeed produced patterns of clear but not readily reconcilable evidence. There is more in this latter category than the evidence of the condition of the interior of 1 Clonarg Street Burwood. 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."

29 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.

30 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.

31 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.

32 Mr Loewenstein rightly relied upon the evidence, given by both sides, about the financial and residential independence of both Malcolm Forsyth and Marlene Sinclair. It could be said in opposition that each frequently spent nights as well as days with the other, and they did much travelling together. They also shared recreational and some other expenditure. Mrs Sinclair was the second signatory to Mr Forsyth's American Express card. The fact nevertheless remains that, in essence, they maintained separate dwellings and separate finances. Nor was either financially dependent on the other. In this sense their relationship was not that of the conventional de facto married couple. And Mrs Sinclair, of course, remained, throughout the relationship, married to someone else. She did not even file for divorce until after Mr Forsyth's death.

33 Mr Loewenstein also justifiably relied on the fact that Mrs Sinclair made no will in favour of Malcolm Forsyth and, as far as we know, neither did he make a will by which she became his beneficiary. Indeed, the question was not even discussed. It is to be distinguished in this context from the subject of marriage. I accept Mrs Sinclair's evidence that the latter subject was frequently raised, and that both saw it as the ultimate outcome of the relationship. The principal reason for any hesitation Malcolm may have had was, I think, grounded in his fear that his brother and sister in law would not approve because of their attitude towards Mrs Sinclair.

34 Particularly significant evidence about the relationship was given by Gordon Gullick and his wife Jacqueline Gullick. According to Mrs Gullick, whose evidence I accept, she and her husband became friends, through Toastmasters, with Mrs Sinclair in 1999. They met Mr Forsyth shortly afterwards. All four became very good friends. They dined together, went out together, travelled together. On one long weekend, Mr Forsyth and Mrs Sinclair were guests of Mr and Mrs Gullick, who lived at Pioneer Bay. During the course of the weekend, they travelled to nearby Inverloch. In a conversation with Mrs Gullick and her husband, Mr Forsyth described Mrs Sinclair as the love of his life. He went on to say that she would never in the future want for anything, as he had "fixed all that up."

35 Gordon Gullick also gave evidence about that weekend. He too recalled the conversation with Mr Forsyth in Inverloch. By contrast to his wife, however, his recollection was that the participants were only Malcolm Forsyth and himself. His wife, as he remembered it, was with Mrs Sinclair at the time - and nobody suggests that Mrs Sinclair was with the two men.

36 Understandably enough, Mr Loewenstein emphasised this point. Nevertheless, in the end it does not necessarily help him. In other - equally, or more important - respects, the accounts of husband and wife coincided. Both, for example, told of a shopping excursion that day in which the two men had purchased matching trousers, and had as a result been nicknamed "the Bobbsey Twins" by their wives/partners. And according to both, Mr Forsyth not only declared his love for Mrs Sinclair, but also said that he had taken steps to ensure her financial security should he pre-decease her - or, in other words, that he had "fixed all that up." In these circumstances, the difference in their respective memories about who was present speaks strongly of a lack of any plan to deceive the Court.

37 If Mr and Mrs Gullick are to be believed, it would follow, it seems to me, that Malcolm Forsyth intended to provide for Mrs Sinclair should she survive him. This, in my opinion, 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.

38 I accept the evidence of Mr and Mrs Gullick. Each seemed to me to be a witness of truth. There can be little doubt that they were on particularly friendly terms with Malcolm Forsyth, as well as with Mrs Sinclair, and that it is in the context of that affection that Malcolm spoke to them about his relationship with her. My only doubt is that, if Mr Forsyth said what they ascribed to him, then he was either not telling them the truth - certainly, not the whole truth - or the measures he had taken to "fix all that up" have not been discovered.

39 From all I know of the character of Malcolm Forsyth, he was not one to have deliberately deceived his friends the Gullicks about his concern for Mrs Sinclair's future. At worst, he may have given them the impression that he had done that which he had not. If he gave that impression, he did so in circumstances that reflected his fixed resolve to take, in the future, the steps they believed had already been taken. In my opinion, he had that resolve.

40 I must not make an order in favour of Mrs Sinclair unless I am of the opinion that she was a person for whom Malcolm Forsyth had responsibility to make provision out of his estate.[2] I am also subject to a further legislative constraint. I must not make an order in favour of Mrs Sinclair unless, if such an order is not made, she will lack adequate provision for her proper maintenance and support.[3] And, in determining whether or not Mr Forsyth had responsibility to make provision for Mrs Sinclair, and the amount of provision (if any) which the Court might order for her, I must have regard to all the matters listed in paragraphs (e)-(o) of s.91(4) of the Administration and Probate Act. I must also have regard to any other matter I think relevant. I have done this. In the light of the evidence before me, the particularly pertinent paragraphs are (e), (f), (g), (h), (j), (l) and (m). I have had regard to each accordingly. And I have done so bearing in mind (among other things) the judgment of Nettle JA in Blair v Blair.[4] The test applied to the matters thus considered has therefore been whether and if so what provision Mr Forsyth as a wise and just testator would have thought it his moral duty to make in Mrs Sinclair's interest.

41 I have already referred to the large number of witnesses who spoke of the affection which Mr Forsyth and Mrs Sinclair had for each other. Mr Loewenstein submitted that none were independent witnesses. That is true, if by "independent" one means a witness who was not on friendly terms with both. On the other hand, every one of those witnesses impressed me as being reliable and as telling what they knew of the truth. I accept their evidence. Save for the understandable skepticism which informed the evidence of Campbell and Noreen Forsyth, no hint of evidence to the contrary was placed before me. In these circumstances, I am satisfied 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.

42 In these circumstances, I find that Marlene Sinclair was a person for whom Malcolm Forsyth had responsibility to make provision out of his estate unless she already had adequate means for her proper maintenance and support.

43 In Grey v Harrison,[5] Callaway JA said:

[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in section 91 [of the Administration and Probate Act 1958], the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. So much may be derived from the concept of "proper" maintenance and support, but also, and more fundamentally, from those considerations.

44 As with all judicial pronouncements, this statement must be read in its context. Malcolm Forsyth abused no right and breached no moral duty when he made his will. But he made it in 1973. If he made another, he did not mention it to Mrs Sinclair, and it has not been found. It is therefore likely that the 1973 will has no successor. If so, the reason is probably not because he had decided that Marlene Sinclair was a person for whom he had no responsibility to make testamentary provision, or because he was of the opinion that sufficient provision was already available for her. It is probably because he never got around to fulfilling the intention to which he gave (distorted) expression when speaking to Mr and Mrs Gullick.

45 Malcolm Forsyth was not a man who led an entirely structured life. And the evidence for this is not confined to the state of the interior of his home. For all his loveable characteristics, his management of his own affairs was, at least at times, slipshod. As his sister in law said in her evidence, she would often call at 1 Clonarg Street, Burwood and, if Malcolm was not at home, collect his mail. She would open the front door with the key she had. She would not go far into the house; it was too cluttered. So, after sorting the mail, she would retain the bills and leave the remainder of the mail on the floor of the hallway. It seems that, in those circumstances, Malcolm would notice that it was there. Meanwhile, the bills would be passed to Campbell for his attention. They would, by this means, get paid. Some time later, Malcolm would reimburse his brother.

46 This was not the sort of man who one would expect to be fastidious about keeping his testamentary dispositions strictly in line with contemporary circumstances. Neither the death of his mother nor the birth of his nephews evoked a change in his will. I do not suggest that this involved any dereliction of duty; I refer to it merely as being consistent with a disposition to leave until tomorrow some things that need not be done today.

47 The result is that, despite his generosity, he left nothing in his will by which his much loved nephews would remember him. It may be, of course, that he made other arrangements for them. For Mrs Sinclair, however, it meant that, as she approached the age of 60 and, some time thereafter, retirement, on a gross salary of $70,000 per annum, she would find real difficulty in discharging her mortgage of $286,000, and in accruing sufficient income to make adequate provision for her maintenance and support. I am satisfied that the alternative she and Malcolm Forsyth contemplated was a pooling, in retirement, of assets and liabilities, with consequential financial benefits. His premature death put those plans to rest with him.

48 In these circumstances, I am satisfied not only that Mrs Sinclair was a person for whom Mr Forsyth had responsibility to make provision out of his estate, but also that without such provision she would lack proper maintenance and support. He failed to discharge that responsibility. In my opinion, adequate provision for her proper maintenance and support would be a sum sufficient to make significant inroads into her mortgage. This in turn will assist her to increase her superannuation benefits. In the circumstances of this case, an order that provision of one half of the estate be made to her is appropriate. The costs of this litigation must, when taxed, be paid out of the estate. I will ask the parties to prepare the orders necessary to give effect to this judgment.

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