A recent decision of the Victorian Supreme Court, subsequently affirmed on appeal, gives great pause for thought to those of us who would choose to maintain a relationship with a lover alongside their marriage or with a married person.
Malcolm Forsyth died suddenly of a heart attack aged 63. He left his share of the family home which he had inherited from his parents, to his Brother. He was a single man but had commenced an intimate relationship with a married woman in 1992. After Malcolm's death, his lover claimed that even though she was already married, she and Malcolm had made a "life long" commitment to each other and had decided to spend as much time together as they could and that they would get married when they could.
Malcolm was, of course dead by this time, so this evidence is always difficult to controvert.
The facts were that they never married (she in fact remained living with her Husband for most of the relationship), they maintained separate homes, were each financially independent and kept their relationship hidden from some family members.
Numerous offers of settlement were made to Malcolm's lover none of which were accepted.
His Honour Mr. Justice Harper decided to award half of Malcolm's estate to his lover on the basis that she was someone that Malcolm had an obligation to provide for from the proceeds of his estate. Whilst some concern was expressed by one of the Judges on appeal about the decision being "at the margin" the decision was upheld on appeal.
Thus the family home no doubt, together with several hundred thousand dollars in legal costs, disappeared out of the fortunes of the Forsyth dynasty forever.
Rest in Peace Malcolm
For practitioners the appeal provides a most interesting examination of the admissibility and confidentiality of discussions at mediation, in the light of SS 24A of the Supreme Court Act and 131(1) of the evidence Act.
See - Forsyth -v- Sinclair [2010] VSCA 195
Malcolm Forsyth died suddenly of a heart attack aged 63. He left his share of the family home which he had inherited from his parents, to his Brother. He was a single man but had commenced an intimate relationship with a married woman in 1992. After Malcolm's death, his lover claimed that even though she was already married, she and Malcolm had made a "life long" commitment to each other and had decided to spend as much time together as they could and that they would get married when they could.
Malcolm was, of course dead by this time, so this evidence is always difficult to controvert.
The facts were that they never married (she in fact remained living with her Husband for most of the relationship), they maintained separate homes, were each financially independent and kept their relationship hidden from some family members.
Numerous offers of settlement were made to Malcolm's lover none of which were accepted.
His Honour Mr. Justice Harper decided to award half of Malcolm's estate to his lover on the basis that she was someone that Malcolm had an obligation to provide for from the proceeds of his estate. Whilst some concern was expressed by one of the Judges on appeal about the decision being "at the margin" the decision was upheld on appeal.
Thus the family home no doubt, together with several hundred thousand dollars in legal costs, disappeared out of the fortunes of the Forsyth dynasty forever.
Rest in Peace Malcolm
For practitioners the appeal provides a most interesting examination of the admissibility and confidentiality of discussions at mediation, in the light of SS 24A of the Supreme Court Act and 131(1) of the evidence Act.
See - Forsyth -v- Sinclair [2010] VSCA 195
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