Alexakis v Masters (No 2)

[2023] NSWSC 509

Supreme Court

New South Wales

Medium Neutral Citation:

Alexakis v Masters (No 2) [2023] NSWSC 509

Hearing dates:

6 – 10, 13, 15 – 17 December 2021

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Equity

Before:

Henry J

Decision:

See [743]

Catchwords:

SUCCESSION — contested probate — validity of two wills made in 2017 under which large bequests made to doctor — lack of knowledge and approval alleged — consideration of suspicious circumstances — probate undue influence alleged — no challenge to testamentary capacity of the deceased — no issue of valid execution — distinction between undue influence in probate and in equity — whether presumption of undue influence in probate applies where testator is enfeebled, relationship of doctor and patient exists and where testator was never married, had no close family and few friends — where sizable estate — where fraud alleged — where beneficiary introduces own solicitor to the testator but is otherwise not involved in the instructions for or preparation of wills — where no direct evidence of pressure or coercion — consideration of circumstantial evidence — knowledge and approval established, no finding of probate undue influence or fraud

EQUITY — undue influence — whether equity can apply or extend its principles respecting undue influence and dispositions inter vivos to subject gifts under a will to a trust in favour of residuary or past beneficiaries — where presumptive relationship of undue influence exists — where factual findings establish knowledge and approval — presumption arising from relationship of parties rebutted

EQUITY — unconscionable conduct — whether unconscionable conduct applicable to dispositions inter vivos can be extended to invalidate wills or parts thereof — whether acceptance or retention of benefits under a will amounts to unconscionable conduct in the absence of any dealing, transaction or inter vivos arrangement between testator and beneficiary

Legislation Cited:

Evidence Act 1995 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

Alexakis v Masters [2021] NSWSC 158

Allen v M'Pherson [1847] 1 HL Cas 191; (1847) 9 ER 727

Aslanidis v Aslanidis [2020] NSWSC 110

Bar-Mordecai v Hillston [2004] NSWCA 65

Blendell v Byrne [2019] NSWSC 583

Boyce v Bunce [2015] NSWSC 1924

Boyse v Rossborough (1857) 6 HL Cas 2; (1957) 10 ER 1192

Bracher v Jones [2020] NSWSC 1024

Brand v Brand (Unreported, Supreme Court of New South Wales, Rolfe J, 10 December 1991)

Breen v Williams (1996) 186 CLR 71

Bridgewater & Ors v Leahy & Anor (Unreported, Supreme Court of Queensland, de Jersey J, 23 August 1995)

Bridgewater v Leahy [1997] QCA 036

Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Brown v Guss [2014] VSC 251

Buckley v Maddocks (1891) 12 Lr (NSW) Eq 277

Buckley v Millar (1869) 8 SCR Eq 4

Callaghan v Myers (1880) 1 NSWLR 351

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chant v Curcuruto [2021] NSWSC 751

Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14

Dent v Bennett (1839) 4 My & Cr 269; 41 ER 105

Dickman v Holly [2013] NSWSC 18

Estate of the late Genevieve Bryan [2022] NSWSC 965

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430

Hall v Hall (1868) LR1P&D 481

Hayward (as Executor of Felton Estate) v Speedy & Felton [2021] NSWSC 943

Hobhouse v Macarthur-Onslow [2016] NSWSC 1831

Huguenin v Baseley (1807) 14 Ves Jr 273; [1803–13] All ER Rep 1

Johnson v Buttress (1936) 56 CLR 113

Johnson v Smith [2010] NSWCA 306

Jones v Dunkel (1959) 101 CLR 298

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25

Lewisv Lewis [2020] NSWSC 1306

Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168

Lim v Lim [2023] NSWCA 84

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Mentink v Olsen [2020] NSWCA 182

NationalAustralia Bank Limited v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242

Nicholson v Knaggs [2009] VSC 64

Nicolson v Knaggs (No 3 – Severance and Costs) [2009] VSC 328

Nock v Austin (1918) 25 CLR 519; [1918] HCA 73

Nye v Sewell (1894) 15 NSWR 18

Olsen v Mentink [2019] NSWSC 1299

Parfitt v Lawless (1872) LR2P&D 462

PatesvCraig&Public Trustee (Estate of the late Joyce Jean Cole) (Unreported, Supreme Court of New South Wales, Santow J, 28 August 1995)

Petrovski v Nasev; Re Estate of Janakievska [2011] NSWSC 1275

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Quek v Beggs (1990) 5 BPR 11,761

Re Estate Rofe [2021] NSWSC 257

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Re the Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284

Revie v Druitt [2005] NSWSC 902

Robertson v Barker [2021] NSWSC 1682

Romascu v Manolache [2011] NSWSC 1362

Sangha v Baxter (2009) 52 MVR 492; [2009] NSWCA 78

Schrader v Schrader [2013] All ER (D) 89 (Mar)

Skinner v Frappell [2008] NSWCA 296

Starr v Miller [2021] NSWSC 426

Stivactas v Michaletos (No 2) [1994] ANZ ConvR 252; (1993) NSW ConvR

Stojic v Stojic [2018] NSWCA 28

ThePublic Trustee v Mullane (Unreported, Supreme Court of New South Wales, Powell J, 12 June 1999)

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Tobin v Ezekiel, Re; Estate of Ezekiel (2011) 6 ASTLR 358; [2011] NSWSC 81

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrsapptd) (in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Watson v Foxman (1995) 49 NSWLR 315

Watson v Kerridge (1887) 8 LR (NSW) Eq 25

Watson v Kerridge and Wife (1888) 9 LR (NSW) Eq 35

Wingrove v Wingrove (1885) 11 PB 81

Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116

Wintle v Nye [1959] 1 All ER 552; [1959] 1 WLR 284

Wu v Ling [2016] NSWCA 322

Texts Cited:

G E Dal Pont, Law of Succession (3rd ed, 2020, LexisNexis Butterworths)

G Lindsay, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation”, paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018

J Campbell, “The Overborne Elderly: A Forensic toolkit”, paper delivered to Blue Mountains Law Society Succession Conference, Medlow Bath, September 2020

J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Peter Alexakis (Plaintiff/First Cross-Defendant on the First, Second and Third Cross-Claims)

Gary Masters (First Defendant/Cross-Claimant on the First Cross-Claim/Second Cross-Defendant on the Second and Third Cross-Claims)

Frank Camilleri (Second Defendant/Fourth Cross-Defendant on the First Cross-Claim/Second Cross-Claimant/Third Cross-Defendant on the Third Cross-Claim)

Hildegard Schwanke (Third Defendant/Second Cross-Defendant on the First Cross-Claim/Third Cross-Defendant on the Second Cross-Claim/First Cross-Claimant on the Third Cross-Claim)

Irmgard (Marianne) Schwanke (Fourth Defendant/Third Cross-Defendant on the First Cross-Claim/Fourth Cross-Defendant on the Second Cross-Claim/Second Cross-Claimant on the Third Cross-Claim)

Representation:

Counsel:
L Ellison SC with L Fernandez (Plaintiff)
R Wilson SC with C Birtles (First Defendant)
V Bedrossian SC with L Reeves (Second Defendant)
J Brown with P Wiggins (Third and Fourth Defendants)

Solicitors:
Teece Hodgson & Ward (Plaintiff)
Makinson d’Apice Lawyers (First Defendant)
Crumpton Lawyers (Second Defendant)
Turner Freeman (Third and Fourth Defendants)

File Number(s):

2019/201496

Publication restriction:

Nil

Judgment

1. Raymond McClure was diagnosed with terminal cancer in 2015 and died on 21 November 2017 at the age of 84. He never married, had no children or close family and very few friends. On his death, his estate was valued at approximately $27 million.

2. In the six months before he died, Mr McClure made two wills that left large bequests to his general practitioner (GP), Dr Peter Alexakis, who is the plaintiff in these proceedings.

3. The first of these wills was made on 8 June 2017 (June Will) while Mr McClure was admitted to the Royal Prince Alfred Hospital (RPAH) due to complications from his illness. Under the June Will, Mr McClure left 65% of his estate to Dr Alexakis with the remainder divided between three people who Mr McClure had known for many years: Frank Camilleri, the second defendant; Hildegard Schwanke, the third defendant; and Mrs H Schwanke’s daughter, Irmgard (Marianne) Schwanke, the fourth defendant (I refer to Mrs H Schwanke and Ms M Schwanke together as the Schwankes).

4. Mr McClure’s second and final will was made on 10 July 2017 (July Will) while he was at home. Under the July Will, Mr McClure increased the bequests made to Dr Alexakis by giving him Mr McClure’s home in Strathfield (Strathfield Home) and 90% of the residue of his estate. The balance of the residue, some personal items and a monetary gift of $10,000 were left to Mr Camilleri, Mrs H Schwanke and Mr McClure’s carer at the time.

5. The June and July Wills (together, the 2017 Wills) were both prepared by Angelo Andresakis, a solicitor that Dr Alexakis introduced to Mr McClure.

6. The 2017 Wills also departed from the testamentary intentions expressed in Mr McClure’s prior will, made on 27 May 2016 (2016 Will), under which Mr McClure left the bulk of his estate to the Salvation Army (New South Wales) Property Trust, similar to the terms of a will he made in 2012.

7. Gary Masters is an officer of the Salvation Army and the first defendant. He was the executor under the 2016 Will as he was the Salvation Army’s financial secretary when Mr McClure died and when these proceedings commenced. In these reasons, I refer to Mr Masters and the Salvation Army (New South Wales) Property Trust collectively as the Salvation Army.

Overview of the proceedings

8. In these proceedings, Dr Alexakis seeks for letters of administration of the July Will to be granted to him in circumstances where Mr Andresakis, the named executor under the July Will, renounced his appointment on 9 September 2021. In the alternative, Dr Alexakis seeks a grant of probate of the June Will as the named executor under that will.

9. Dr Alexakis’ application is opposed by the Salvation Army, Mr Camilleri and the Schwankes. They have each filed defences and cross-claims that raise various challenges to the validity of the 2017 Wills, the gifts to Dr Alexakis under those wills and his retention of those gifts assuming the 2017 Wills are valid testamentary instruments.

10. No challenge is made on the grounds that Mr McClure lacked testamentary capacity or that the 2017 Wills were not duly executed.

11. While there is significant overlap in the allegations made by the Salvation Army, Mr Camilleri and the Schwankes in opposition to Dr Alexakis’ claim, the particular defences and claims they advance and the relief they seek differ in some material respects.

12. The Salvation Army claims that both of the 2017 Wills are invalid for lack of knowledge and approval, undue influence and/or fraud on the part of Dr Alexakis. It seeks an order for a grant of probate in solemn form of the 2016 Will under which the Salvation Army is the main beneficiary. There is no challenge to the validity of the 2016 Will by any party, other than that it had been revoked by the later 2017 Wills.

13. In the alternative, and in the event the Court grants administration or probate to Dr Alexakis of either of the 2017 Wills, the Salvation Army seeks declaratory relief that Dr Alexakis, as administrator of Mr McClure’s estate, holds the Strathfield Home and 90% of the residue, or alternatively 65% of the residue, on constructive trust for the Salvation Army on the basis that these gifts were procured by undue influence (actual and presumed) on the part of Dr Alexakis.

14. Mr Camilleri does not plead any matter in his defence by way of challenge but does not admit the validity of the 2017 Wills. In his cross-claim, Mr Camilleri seeks to invoke the Court’s general equitable jurisdiction and relies on s 42(2) of the Succession Act 2006 (NSW) (Succession Act) for orders that the gifts to Dr Alexakis under the July Will, or alternatively the June Will, are held on constructive trust in favour of Mr Camilleri and the Schwankes. He claims that the gifts to Dr Alexakis were procured by unconscionable conduct and/or equitable undue influence and that it would be unconscientious and unconscionable for Dr Alexakis to retain them. In addition, Mr Camilleri seeks an order that an independent administrator be appointed.

15. The Schwankes contend that the 2017 Wills are valid testamentary documents except for the clauses that provide for gifts to Dr Alexakis and the appointments of Mr Andresakis and Dr Alexakis as executor and trustee (which they refer to as the Impugned Clauses). The Schwankes challenge the validity of the Impugned Clauses on similar grounds to the Salvation Army, namely, lack of knowledge and approval and undue influence (in probate and/or in equity) and seek orders that the July Will, or alternatively the June Will, is admitted to probate without the Impugned Clauses and that they and Mr Camilleri receive the benefit of the gifts to Dr Alexakis which fail.

16. In the alternative, and in the event that the Court finds that one of the 2017 Wills should be admitted to probate, the Schwankes seek orders similar to those sought by Mr Camilleri, namely, a declaration that Dr Alexakis holds his interest in Mr McClure’s estate on constructive trust for them and Mr Camilleri on the basis that the Impugned Clauses were obtained through equitable undue influence and an order for the appointment of an independent administrator.

17. Thus, the position of the Salvation Army, which seeks to invalidate the 2017 Wills and obtain probate of the 2016 Will, is at odds with that of Mr Camilleri and the Schwankes, whose positions are aligned. The latter parties say that the gifts to them under the 2017 Wills are unaffected by Dr Alexakis’ conduct and they should be the recipients of the gifts to Dr Alexakis under whichever of the 2017 Wills the Court determines is Mr McClure’s last valid will. They contend that this is the appropriate outcome based on Mr McClure’s clear and deliberate testamentary intention to remove the Salvation Army as a beneficiary of his estate and the fact that they were not involved in the preparation and execution of the 2017 Wills.

18. Dr Alexakis contests these claims. He denies that the circumstances surrounding the preparation and execution of the 2017 Wills are suspicious, says that the evidence establishes that Mr McClure knew and approved of the contents of the 2017 Wills and denies that he exercised any form of undue influence over Mr McClure or otherwise engaged in conduct that vitiates the 2017 Wills.

19. Dr Alexakis also says that the 2017 Wills should not be modified by a grant of equitable relief to any of the defendants, contending that equitable principles of undue influence and unconscionable conduct do not apply in probate.

20. The issues raised require a close examination of the facts and the evidence adduced by the parties. The evidence comprised affidavit and oral evidence from the parties and non-party witnesses, and a range of documents such as letters and reports relating to Mr McClure’s medical history, records from his hospital admissions, phone call records and documents from Mr Andresakis’ file relating to Mr McClure’s 2017 Wills.

21. The documentary evidence is contained in volumes three and four of the court book (CB), volumes one to five of the medical tender bundle (MTB), volumes one and two of the combined subpoena tender bundle (CSTB) and exhibits A–J, 1A–1G and 1–6.

22. The evidence refers to conversations with and statements attributed to Mr McClure. No objection was taken to this evidence and it was generally accepted that Mr McClure made the statements as recorded in the contemporaneous documents. However, there are disputes as to the accuracy of statements made by Mr McClure to non-party witnesses about what he discussed with Dr Alexakis relating to his wills.

23. The Court has been assisted by the parties’ written opening and closing submissions that were supplemented by oral submissions at the hearing.

24. I have had regard to all the facts contended for and the arguments advanced in the parties’ written and oral submissions but have not dealt with pleaded allegations that were not addressed by the parties’ submissions or were not pressed at the hearing.

The evidence and assessment of witnesses

25. The affidavit evidence relied on by the parties and my assessment of the witnesses who gave oral evidence at the hearing are set out below. In coming to my views on the witnesses, I have had regard to my notes taken during the hearing in addition to the transcript, affidavits, documents in evidence and submissions of the parties. I have also had regard to the following principles which have informed my approach to the statements attributed to Mr McClure, findings of fact and determination of the claims generally.

Legal principles

26. In view of the frailty of human memory, the inability of Mr McClure to give evidence and the parties’ self-interest, more weight is to be placed on the contemporaneous documents where they are available, the objective surrounding circumstances and the inherent probabilities and improbabilities of events: Watson v Foxman (1995) 49 NSWLR 315 at 319; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]–[31].

27. Evidence of statements made by Mr McClure, particularly where they are disputed, must be examined carefully and treated with caution. Where possible, the Court should look for some corroboration: Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14; Chant v Curcuruto [2021] NSWSC 751 (Chant v Curcuruto) at [263]–[264].

28. The Court is not bound to accept or reject the evidence of a witness in its entirety, and there are risks in making global findings about the credibility of any particular witness. Where a witness is found to have lied about one matter, this does not automatically mean that they are to be disbelieved about all other matters or prove the opposite of the lie. The fact of the lie may indicate a consciousness that the truth in respect of that matter would not have assisted the witness’ case or may constitute evidence which is corroborative of other evidence. Where possible, an assessment should be made as to the reasons for the untruthfulness of the information in order to see if other aspects of the evidence are likely to be infected by the same concern and whether, and what, inferences can be drawn from the untruths: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (Tobin v Ezekiel) at [60]–[61] per Meagher JA (with whom Basten and Campbell JJA agreed); Sangha v Baxter (2009) 52 MVR 492; [2009] NSWCA 78 at [155]–[156] per Basten JA (with whom Handley AJA agreed).

29. As observed by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141 (and cited by Hallen J in Chant v Curcuruto at [755], Robertson v Barker [2021] NSWSC 1682 at [453] and Starr v Miller [2021] NSWSC 426 at [6]):

"The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details."

30. The Court must have regard to the serious nature of the allegations of undue influence, fraud and unconscionable conduct when considering whether the claims are proven and must feel an actual persuasion of its occurrence or existence before a fact can be found: Evidence Act 1995 (NSW) (Evidence Act), s 140; Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw v Briginshaw) at 361–2; [1938] HCA 34; Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48].

Dr Alexakis’ witnesses

31. Dr Alexakis relied upon his own evidence and affidavits read from the following witnesses, each of whom were cross-examined: Mr Andresakis, Archana Narayan, Catherine Guy and Peter Skouteris.

Dr Alexakis

32. Dr Alexakis swore two affidavits in these proceedings. His affidavit dated 29 November 2019 is an executor’s affidavit in relation to the July Will.

33. In his second affidavit dated 25 June 2020 (Alexakis), Dr Alexakis gives evidence about his qualifications, his knowledge of the 2017 Wills and his relationship with Mr McClure. He refers to Mr McClure’s requests for legal advice and admissions to hospital, his home visits to Mr McClure after he was discharged from the RPAH and the circumstances in which he ceased treatment of Mr McClure in October 2017. Dr Alexakis gives evidence that, on 13 March 2018, he was informed of Mr McClure’s death and it was only at that time he became aware of the July Will and his status as beneficiary under it (Alexakis at [6]–[7]). He deposed that he first became aware of the June Will on 3 May 2018 (Alexakis at [9]). He also gives evidence about his relationship with Mr Debnan, a former patient who died in 2015 and left a will dated 27 August 2005 that named Dr Alexakis as executor and sole beneficiary.

34. Dr Alexakis’ evidence was subject of significant challenge. It was fairly put to Dr Alexakis that he was lying on occasion and that he gave false evidence (see, for example, T48.23, T95.41–4 and T99.22–7). The defendants submitted that Dr Alexakis was not a witness of truth, the Court should not accept his evidence unless confirmed by other evidence and, where his evidence is contradicted by other evidence (for example, in relation to what Mr McClure told non-party witnesses about his discussions with Dr Alexakis regarding his wills), that other evidence should be accepted.

35. I deal with the key aspects of Dr Alexakis’ evidence and set out my findings in relation to it in the Facts section below and when dealing with the issues for determination. In summary, I make no finding that Dr Alexakis gave deliberately false evidence and is not a witness of truth. That said, Dr Alexakis’ self-interest in these proceedings, some inconsistences and inadequacies in his evidence (which I refer to below) and the existence of suspicious circumstances in this case have led me to accept Dr Alexakis’ evidence where it is corroborated by contemporaneous documents or independent witnesses, the alternative is inherently improbable or it is against Dr Alexakis’ own interest, however, I have treated his uncorroborated evidence with caution, particularly his evidence about what he knew and the extent of his involvement in Mr McClure’s will-making process, and have carefully considered it against the other evidence, the objective facts and the logic of events before making my findings on factual matters in dispute.

36. In general, Dr Alexakis was an articulate witness who gave oral evidence in a clear and forthright manner. He was very careful and considered when answering questions (see, for example, T113.13–21 and T137.43–138.6) and had no hesitation in rejecting matters with which he disagreed, sometimes in strong terms (see, for example, T45.44 and T66.37–40). Throughout cross-examination, Dr Alexakis maintained that he did not know that he was a beneficiary under the 2017 Wills at the relevant times and denied that he sought or acquiesced to an agreement pursuant to which Mr McClure would make him a beneficiary under his will in return for Dr Alexakis getting him out of the RPAH and caring for him at home (see, for example, T160.42–161.1).

37. In most respects, I found Dr Alexakis’ evidence concerning Mr McClure to be credible and reliable. Much of it was supported by or consistent with evidence from other witnesses and contemporaneous documents, and his oral evidence was generally consistent with his affidavit evidence. The explanations that Dr Alexakis provided about Mr McClure’s medical care and the dates of his home visits to Mr McClure were plausible in my view, as was his evidence that Mr McClure did not discuss the content of his wills with him.

38. One matter raised by the defendants related to Dr Alexakis’ evidence that Mr McClure did not tell him about the contents of his will in late 2016 (Alexakis at [45]), Dr Alexakis did not know that Mr McClure left his estate to the Salvation Army under his will (T44.43–50) and he never had discussions with Mr McClure about his wills (T45.38–44). This evidence was shown to be incorrect on the second day of the hearing when, in response to questions put to Dr Alexakis concerning statements he had made to the Medical Council of New South Wales (Medical Council) in November 2017, Dr Alexakis said that Mr McClure told him he was unhappy with his will and he wished to take certain parties off his will, namely, the Salvation Army (T93.48–94.8; T95.17–46). For the reasons set out at [505] below, I have not found that Dr Alexakis deliberately lied about this matter or sought to conceal the truth to assist his case.

39. Dr Alexakis’ affidavit evidence that he must have had two conversations with Mr Andresakis regarding a date and time for him to be introduced to Mr McClure and that he did not speak to Mr McClure or Mr Andresakis about any of their meetings in June or thereafter (Alexakis at [81] and [89]) was also shown to be inaccurate during cross-examination, when it was shown that there were six calls between Dr Alexakis and Mr Andresakis prior to and following the meetings between Mr Andresakis and Mr McClure in June 2017. Mr Andresakis also gave evidence that Dr Alexakis may have been involved in arranging his meetings with Mr McClure in July (see [307] below). I did not consider that Dr Alexakis’ failure to refer to these calls was indicative of him seeking to distance himself from the framing of Mr McClure’s testamentary dispositions or that he was not a witness of truth. Memories fade and it is to be expected that Dr Alexakis, who had a busy medical practice, may not have recalled each of the calls he had with Mr Andresakis over that period. Dr Alexakis also accepted in cross-examination that there may have been more than two telephone calls regarding his introduction of Mr Andresakis to Mr McClure at the RPAH (T48.43–7).

40. The defendants also referred to Dr Alexakis’ evidence concerning the reasons given to Dr Lim for seeking a capacity assessment of Mr McClure, which is referred to at [174], [181]–[183] below (see also, T50.12–39 and T96.44–100.16). Dr Alexakis’ explanation to Dr Lim was at odds with his written explanation to the Health Care Complaints Commission (HCCC), which stated that the assessment was requested after the lawyer (Mr Andresakis) suggested it may be required (Exhibit 1A) and his evidence to the Medical Council which was that he sought the capacity assessment because Mr McClure wanted to make changes to his will (T96.44–100.16). From the timeline of events established on the facts (as set out in the Facts section), it is clear that Dr Alexakis sought the capacity assessment prior to speaking to Mr Andresakis and that Dr Alexakis did not disclose to Dr Lim that the assessment was sought in circumstances where Mr McClure wished to change his will.

41. Dr Alexakis’ evidence in cross-examination that he first became aware of the complaint to the HCCC in about mid-November 2017 was also inconsistent with the note of his home visit to Mr McClure on 29 September 2017 (CB602) which refers to the “HCCC investigation”.

42. While Dr Alexakis was mostly clear and direct when giving answers, on occasion, he came across as somewhat evasive and defensive in cross-examination. I formed the impression that the explanation for this was more likely due to Dr Alexakis being wary of accepting propositions that were open to interpretation or led to unintended responses, rather than trying to hide matters and not give honest evidence.

43. For example, Dr Alexakis was unwilling to acknowledge that he was aware Mr McClure was a man of “substantial means” (T153.7–9) although he had referred to Mr McClure as a “successful individual” in his letter to the HCCC (T140.25) and was aware that Mr McClure paid for the cost of surgery at a private hospital (T54.21–4), could afford to pay for private care at home (MTB1276), had his own companies (T42.49) and was involved in the stock market (Alexakis at [34] and [46]; T140.21). That said, I accept Dr Alexakis’ evidence that he did not know the details of Mr McClure’s finances or the value of his estate (T61.7; T118.14–9). Such a finding is plausible in the context where the evidence makes clear that Mr McClure was a private person about his financial affairs.

44. Dr Alexakis also came across as somewhat avoidant when asked whether Mr McClure regarded Dr Alexakis as his friend. Dr Alexakis said “[y]ou’d have to define friend”; he had no social interaction with Mr McClure; he could not say that Mr McClure was his friend; and referred to himself and Mr McClure as having a “degree of mutual respect” (T109.21–31).

45. Similarly, when it was put to Dr Alexakis that Mr McClure was a man who was desperate to get out of hospital and that Dr Alexakis agreed to look after Mr McClure and keep him out of hospital in exchange for Mr McClure putting him in his will and increasing the share, rather than responding directly, Dr Alexakis referred to his handwritten notes of his home visit to Mr McClure, which he said “don’t reflect that at all”, and then went on to describe the pride he had in the work of himself and Mr McClure’s carer for the five months that Mr McClure was at home (T81.18–25).

46. Dr Alexakis did not disclose that Mr Andresakis’ firm, Andresakis & Associates, had completed work for his wife and extended members of their respective families or that the Alexakis family were major established clients of that firm (T64.5–9), matters which might be expected to have been addressed by Dr Alexakis’ evidence-in-chief given an allegation of agency that was raised by the pleadings.

Mr Andresakis

47. Mr Andresakis swore two affidavits. In his first affidavit dated 16 December 2019 (Andresakis 1), Mr Andresakis gives evidence as an attesting witness to the July Will and in relation to his renunciation of probate of that will by declaration sworn 3 December 2019.

48. Mr Andresakis’ second affidavit dated 19 December 2019 (Andresakis 2) outlines the circumstances relating to the preparation and execution of the 2017 Wills and was filed pursuant to an order made by Lindsay J. For that reason, Mr Andresakis was treated as a witness of the Court and was cross-examined by Senior Counsel for Dr Alexakis in relation to execution of the 2017 Wills. During that cross-examination, Mr Andresakis gave evidence that the affidavit was not settled or drafted by Dr Alexakis’ solicitors and that he declined a “question-and-answer session” with Dr Alexakis’ Senior Counsel prior to the hearing (T196.37–40; T198.6–9).

49. Some aspects of Mr Andresakis’ evidence were undermined by matters that arose in cross-examination. For example, Mr Andresakis was unable to explain how certain percentage shares of Mr McClure’s estate were arrived at; he could not recall critical phone calls with Dr Alexakis and Mrs Alexakis nor meeting Dr Brian Fernandes; he was unclear about the circumstances in which he arranged to meet Mr McClure to obtain initial instructions for the preparation of the July Will; and his affidavit evidence did not refer to the creation of a draft will prior to meeting with Mr McClure on 5 July despite that document appearing in his file. These aspects are referred to in more detail at [210]–[211], [213]–[214], [234], [306]–[310], [316] and [319] below.

50. While Mr Andresakis’ evidence was incomplete and inaccurate in some respects, I make no finding that this was intentional or that Mr Andresakis was not a witness of truth, noting that such a finding was not sought or put to him in cross-examination. Mr Andresakis readily accepted when he could not recall or explain matters (T215.6–44; T232.47) and acknowledged and accepted propositions that were put to him during cross-examination (T232.7–12; T238.32–7; T253.36–43). He also did not come across as seeking to present his evidence to suit an agenda.

51. Mr Andresakis’ conduct as Mr McClure’s solicitor is criticised by the defendants. In particular, they say that Mr Andresakis’ acceptance of Mr McClure’s instructions for the 2017 Wills without enquiring as to the reasons for including Dr Alexakis as the main beneficiary or testing whether Mr McClure knew the effect of his testamentary actions was deficient and in conflict with his duties as a solicitor.

52. Later in these reasons, I refer to Mr Andresakis’ conduct in greater detail and its impact on the issues for determination, particularly the issue of whether Mr McClure knew and approved of the contents of the 2017 Wills. I simply note here that, in assessing Mr Andresakis as a witness, I did not form the impression that he was attempting to embellish his past conduct or suggesting he took greater care than that which was portrayed by the objective facts and contemporaneous documents.

53. Overall, and notwithstanding the defendants’ criticisms, I am satisfied that Mr Andresakis sought to provide the best and most accurate recollection of what took place in connection with the making of the 2017 Wills, bearing in mind the passage of time. In particular, and accepting that his memory was poor on occasion, I am satisfied that he was telling the truth about his conversations with Mr McClure and Dr Alexakis and his evidence as to what he could recall should be accepted by the Court.

Ms Narayan and Mrs Guy

54. Ms Narayan and Mrs Guy are secretaries at Andresakis & Associates.

55. Ms Narayan swore an affidavit on 11 November 2021 as an attesting witness to the June Will. Mrs Guy swore three affidavits dated 16 December 2019 (Guy 1), 2 August 2021 (Guy 2) and 13 December 2021 (Guy 3). She gives evidence as an attesting witness to the July Will and in relation to the dates on which the 2017 Wills and their drafts were created.

56. No submissions were made challenging the evidence of Ms Narayan or Mrs Guy. I accept their evidence, noting that both of them appropriately acknowledged when they could not recall some matters (which are identified at [222], [328], [336] and [339] below).

Mr Skouteris

57. Mr Skouteris is a partner at Andresakis & Associates since 1997 and has a general practice which includes wills and estates work. He has known Dr Alexakis since 1995 and has acted as solicitor for him, Mrs Alexakis and their extended families over the years, mainly in relation to commercial leasing arrangements involving Mrs Alexakis, her family and two related companies.

58. In his affidavit sworn 12 November 2021, Mr Skouteris gives evidence about his dealings with Dr Alexakis and the preparation of Mr Debnan’s will in 2005.

59. Evidence was adduced of phone calls between Mr Skouteris and Mrs Alexakis in June, July, September and October 2017. In cross-examination, Mr Skouteris candidly accepted that he could not recall what was discussed during his calls with Mrs Alexakis, including the call on 22 September 2017 that lasted 15 minutes (T192.20–34), and explained that without having access to files and records at the office, he was unable to say whether he had any ongoing matters with Mrs Alexakis in June and July 2017 (T193.3–8). He gave evidence that at the time Mr Andresakis saw Mr McClure on 8 June 2017 he did not know Mr McClure had made the June Will. Mr Skouteris said he also did not know Mr Andresakis saw Mr McClure in July 2017 or that Mr McClure made the July Will (T192.40–50).

60. Mr Skouteris answered questions directly and clearly and impressed me as a truthful witness who endeavoured to give evidence to the best of his recollection. Other than pointing out his lack of recall about some matters, no issues were raised by the defendants about Mr Skouteris and I accept his evidence.

Absence of Mrs Alexakis

61. Mr Masters submitted that the Court should draw an inference pursuant to Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) from Dr Alexakis’ failure to call Mrs Alexakis given she was a party to numerous phone calls made at critical times during the will-making process. Mr Masters refers to eight calls between Mr Skouteris and Mrs Alexakis in June and July 2017 (Outline of Final Submissions of First Defendant at [18]).

62. The rule in Jones v Dunkel provides that an inference may (not must) be drawn where there is an unexplained failure to call evidence from a person where a party is required to explain or contradict something: NationalAustralia Bank Limited v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242 at [138].

63. In my view, it is expected that Mrs Alexakis could have given evidence about the calls she had with Mr Andresakis (those calls being on 16 June 2017 at 1.43pm for 1 minute and 3.42pm for 5 minutes, 21 June 2017 at 3.05pm for 11 minutes and 9 July 2017 at 2.41pm for 3 minutes). Mrs Alexakis’ failure to do so means that I can more comfortably draw the inference, which I consider is available from the evidence, that on 9 July 2017 Mrs Alexakis spoke to Mr Andresakis about arrangements for him to meet with Mr McClure on 10 July 2017 in relation to the execution of his will.

64. However, I do not consider that a Jones v Dunkel inference should be drawn in relation to Mrs Alexakis’ calls with Mr Skouteris. The evidence that Mr Skouteris did ongoing work for Mrs Alexakis, her family and two related companies, and that he was unaware of Mr Andresakis’ dealings with Mr McClure at the relevant times, satisfies me that his calls with Mrs Alexakis did not require further explanation and most likely concerned her or her family’s property matters unrelated to the making or execution of Mr McClure’s 2017 Wills.

The Salvation Army’s witnesses

65. The Salvation Army read the following affidavits: Mr Masters’ executor’s affidavit sworn 12 September 2019 in relation to the 2016 Will; an affidavit from an attesting witness to the 2016 Will, Ian Foulsham, sworn 12 September 2019 (Foulsham); affidavits of notice of the proceedings and service from Isabel McLelland, sworn 13 September 2019, and Andrew Khee Tuan Ng Saad, sworn 19 September 2019; and a further affidavit from Ms McLelland, sworn 17 July 2020, that exhibits documents. None of these deponents were cross-examined.

66. The Salvation Army also read affidavits from various people who dealt with Mr McClure in the period from 2012 to 2017, including doctors who treated him at the RPAH, each of whom were cross-examined; their evidence is outlined below.

Glen Evans

67. Glen Evans was employed by the Salvation Army from 2009 to 2016 in its Public Relations and Communication Department and has sworn an affidavit dated 20 June 2020 (Evans). Mr Evans met Mr McClure in 2012, when Mr Evans was an officer and bequest manager for the Salvation Army and Mr McClure enquired with the Salvation Army about making a bequest to the organisation.

68. Mr Evans gives evidence of his dealings with Mr McClure from 2012 to September 2016, including in relation to Mr McClure’s 2012 will and his discussions with Mr McClure about his testamentary intentions prior to the making of the 2016 Will.

69. No issues of credit were raised in relation to Mr Evans and I accept his evidence.

Dr Natasha Spalding

70. Dr Natasha Spalding is a geriatrician employed by the Sydney Local Health District and based at Concord Repatriation General Hospital (Concord Hospital). Dr Spalding swore an affidavit dated 13 November 2020 (Spalding).

71. Dr Spalding first met Mr McClure on 19 June 2015 when Mr McClure was admitted to Concord Hospital. She gives evidence about Mr McClure’s medical history, her ongoing treatment of and discussions with Mr McClure while he was an outpatient at the Concord Aged Care and Rehabilitation Outpatient Clinic, her dealings with Mr McClure, Dr Alexakis and others in charge of Mr McClure’s treatment while he was at the RPAH, and her last contact with Mr McClure in November 2017.

72. Dr Spalding’s evidence, particularly the information contained in her regular written reports to Dr Alexakis, provides insight into Mr McClure’s general character, physical and mental acuity and his relationship with Dr Alexakis. She was an impressive witness whose evidence I accept unreservedly.

Drs Lynn Lim and Brian Fernandes

73. Dr Lynn Lim is a palliative medicine specialist at the RPAH. She swore an affidavit on 24 July 2020 (Lim) and gives evidence of meeting Mr McClure on 8 May 2017 and her dealings with Mr McClure thereafter, particularly during his admissions to the RPAH in May and June 2017.

74. Dr Brian Fernandes is a resident medical officer at the RPAH who met Mr McClure in late May 2017 following Mr McClure's admission to the RPAH on 26 June 2017. He swore an affidavit on 4 August 2020 (Fernandes) and gives evidence of his dealings with Mr McClure during his hospital admissions in May and June 2017.

75. Drs Lim and Fernandes are the authors of various progress notes relating to Mr McClure which, like Dr Spalding’s written reports, provide valuable insight into Mr McClure’s character and relationship with Dr Alexakis. I accept that the progress notes are reliable records of what Drs Lim and Fernandes were told by Mr McClure at the relevant times.

76. Both Drs Lim and Fernandes were open and frank during cross-examination. They impressed me as credible and reliable witnesses who had no immediate self-interest in the outcome of the proceedings. For this reason, and because no issues of credit were raised, I have generally accepted their evidence. Where there is a conflict between their evidence and that of Dr Alexakis, and there is no objective circumstance that points to the likelihood of Dr Alexakis’ account of the disputed matter being correct, I have preferred the evidence of Drs Lim and Fernandes.

Dr Melanie Wroth

77. Dr Melanie Wroth is a senior staff specialist geriatrician at the RPAH who also works part time as a senior hearing member at the New South Wales Civil and Administrative Tribunal. Dr Wroth swore an affidavit dated 17 July 2020 (Wroth) that gives evidence about her consultation with Mr McClure on 13 June 2017 and a complaint she filed on 28 June 2017 with the HCCC regarding Dr Alexakis’ conduct.

78. The subject matter of Dr Wroth’s complaint to the HCCC is not for determination in these proceedings although aspects of the complaint are common to matters asserted by the defendants in these proceedings, such as whether Dr Alexakis influenced Mr McClure to make his June Will. It is referred to in the Facts section below as it provides context to police investigations that occurred in September 2017 as well as statements made by Mr McClure, Dr Alexakis and Mr Andresakis to the police and statements made by Dr Alexakis to the Medical Council in November 2017. Related to this, I make no finding that Dr Wroth or the other doctors at the RPAH alleged undue influence without proper investigation: a finding sought by Dr Alexakis in his written submissions (Plaintiff’s Outline of Closing Submissions, Part B: the Facts at [48]–[51]). It is unnecessary and, in my view, inappropriate to consider whether such a finding is warranted, given it relates to the actions of non-parties.

79. Dr Wroth was an impressive witness. Her oral evidence, in which she answered questions and provided opinions about the relationship of Mr McClure and Dr Alexakis, was of assistance and, as acknowledged by Dr Alexakis’ written submissions (Plaintiff’s Outline of Closing Submissions, Part B: the Facts at [47]), important in determining whether Mr McClure was unduly influenced by Dr Alexakis. However, I have treated some of Dr Wroth's views with caution as it was evident that some of her concerns and opinions expressed in oral evidence were influenced by assumptions or understandings that were not supported by the facts. These matters are addressed at [506]–[509] below.

Brendan Myhill

80. Brendan Myhill is a community palliative care social worker employed by the Sydney Local Health District and based in Concord Hospital. He first met Mr McClure on 21 September 2017.

81. Mr Myhill swore an affidavit on 12 November 2020 (Myhill) which gives evidence about his dealings with Mr McClure immediately prior to his death, including discussions with Mr McClure about Dr Alexakis, the making of Mr McClure’s will in hospital and Mr McClure’s desire to make another will.

82. As with the other non-party witnesses, Mr Myhill was an impressive witness. He gave evidence in a calm and considered manner and acknowledged, appropriately, that he would defer to his notes where they differ from his affidavit evidence (T329.45). This, together with his lack of self-interest, leads me to generally accept his evidence, although I place more weight on the contemporaneous documents created by Mr Myhill based on my belief that they are a more accurate record of his discussions with Mr McClure.

Mr Camilleri

83. Mr Camilleri read an affidavit that he swore on 16 November 2020 (Camilleri), which describes meeting Mr McClure in or about 1970 and his dealings with him until his death. Much of Mr Camilleri’s affidavit evidence was not probative on the issues and was read as background information only.

84. Mr Camilleri’s credit and the reliability of his evidence were not challenged at the hearing. I have generally accepted his evidence, although I have treated some of evidence regarding his discussions with Mr McClure in 2017 with caution given his self-interest in the proceedings and because the matters referred to in those discussions (such as that Mr McClure was under pressure from his GP and that Dr Alexakis was visiting Mr McClure in Concord Hospital in November 2017) are not corroborated by the evidence of the non-party witnesses, such as Mr Myhill.

The Schwankes

85. The Schwankes relied on affidavits they each swore on 12 August 2020, a further affidavit from Mrs H Schwanke sworn 2 December 2021 (H Schwanke) and an affidavit from Andrew Fleming affirmed 5 December 2021. Mr Fleming is the legal practice director of Walker & White Pty Ltd, a legal practice that specialises in the law of wills and estates. His affidavit is relied on in support of his appointment as administrator of Mr McClure’s estate.

86. No issues of credit or reliability were raised in relation to the Schwankes’ evidence. I have accepted their evidence noting that, other than a conversation between Mrs H Schwanke and Mr McClure in late May 2017, the Schwankes did not have any dealings with Mr McClure at the critical times when Mr McClure was considering and giving instructions for the 2017 Wills.

Facts

87. The following facts are drawn from the affidavit, oral and documentary evidence. Unless otherwise indicated, I am satisfied of these matters.

Mr McClure

88. Mr McClure was born in Sydney in 1933. He has one brother, nine years his senior, who lives in Queensland. Mr McClure had not seen his brother for at least 20 years, and possibly 40 years, prior to his death.

89. Mr McClure worked in the real estate industry in Australia and travelled and worked overseas, including in California. He had a business partner, Irene Aeckerle, with whom Mr McClure had a close and personal relationship. Ms Aeckerle died sometime prior to 2012.

90. Mr McClure managed real estate that he owned in his own name and through various companies. He also had an interest in the stock market and invested in shares.

91. In late 1997, Mr McClure bought and moved into the Strathfield Home.

92. In the four years prior to his death, Mr McClure lived by himself at the Strathfield Home. It appears that he had very few friends or people who visited him. Three of the people he saw on a regular basis were Mr Camilleri and the Schwankes.

93. Mr McClure met Mr Camilleri through Ms Aeckerle in or around 1970. From around that time, Mr Camilleri undertook work for Mr McClure in relation to various properties he owned, including gardening and handyman tasks, and also assisted Mr McClure with running his companies. Mr Camilleri was granted powers of attorney for Mr McClure on 6 April 1984 and Ms Aeckerle on 4 October 1984, which he used to sign documents on their behalf while they were travelling overseas.

94. According to Mr Camilleri, he undertook work for Mr McClure based on an arrangement that involved no pay or immediate remuneration but, instead, a conferral of a future interest in assets accumulated by Mr McClure. Mr Camilleri intends, in separate proceedings, to assert a beneficial entitlement to a portion of Mr McClure’s estate on grounds unaffected by the identity of the executor or administrator of the estate.

95. Mr McClure’s health began to decline in early 2014. A chronological narrative of facts which primarily relate to his hospital admissions and his dealings with Dr Alexakis and other doctors is set out below.

96. From the time that his health began to decline, Mr McClure became more reliant on Mr Camilleri to drive him around and assist him with other activities, such as bringing him the mail, doing shopping, cleaning and odd jobs, and taking him to appointments. In February 2016, Mr Camilleri’s wife was diagnosed with terminal cancer. Mr Camilleri said that from that time until after her death in July 2017, he did not see Mr McClure at the Strathfield Home or do work for him except for a short time most Sundays although he rang Mr McClure on a regular basis (Camilleri at [58]–[59]).

97. While they had, in significant part, a working relationship, I accept Mr Camilleri’s evidence that a friendship also developed between he and Mr McClure.

98. Mr McClure met Mrs H Schwanke in about 1971, when she rented a property that he owned in Dulwich Hill. They kept in contact after she moved out of that property in or around early 1972. Over the years, Mrs H Schwanke assisted Mr McClure with various domestic tasks, such as decorating his Strathfield Home and cooking meals for him. When Mr McClure travelled for business, Mrs H Schwanke took care of his birds and plants and stocked his home with food for his return. Mrs H Schwanke visited Mr McClure on a regular basis, often with her daughter, Ms M Schwanke, including on occasions such as Mr McClure’s birthday, Christmas and Easter, and also called to speak to him on the phone on occasion.

Mr McClure’s wills

99. Mr McClure made six wills between 1986 and July 2017.

100. The first of these was made on 28 July 1986 and appears to have prepared by a solicitor. Under the 1986 will, Mr McClure appointed Mr Camilleri and a solicitor, Dean Mitchelmore, as executors and trustees, gave two pieces of real property and $30,000 to Mr Camilleri, monetary bequests of 250,000 Swiss francs to Mrs H Schwanke, $150,000 to Ms M Schwanke, $10,000 to his mother and left the residue of his estate to Ms Aeckerle. The will provided that in the event Ms Aeckerle predeceased Mr McClure the residue was left to Mr Camilleri and Mrs H Schwanke in equal shares and also stated that Mr McClure considered making provision for his brother, Herbert McClure, but had decided against it.

101. Mr McClure’s next will, made on 6 March 2007, was prepared by the Public Trustee of New South Wales. Under the 2007 will, Mr McClure appointed the Public Trustee as executor and trustee and gave the Strathfield Home and its contents to his “friends”, Mr Camilleri and Mrs H Schwanke, monetary bequests totalling $40,000 to other persons who are not parties to these proceedings and, after payment of estate liabilities, the residue of his estate to Mr Camilleri.

102. It appears that Mr McClure took steps to prepare another will in 2008 with the Public Trustee, although no will was executed at that time. The documents in evidence include a handwritten note in which Mr McClure sets out instructions to update his will by reference to the clause numbering of the 2007 will (CB103–4). Under the headings “change of address”, “new gifts”, “delete gift” and “residue changes”, Mr McClure records that he wished to make gifts to Mr Camilleri and Mrs H Schwanke of $50,000, make another small monetary gift to Melinda Rivera, delete a gift to Won Lee and replace Mr Camilleri, the previously named recipient of the residue, with Mrs H Schwanke. Accompanying the instructions is a further handwritten note by Mr McClure of an attendance with the Public Trustee on 25 June 2008 (CB101–2) which refers to “problems from start – she refused to look at my written changes”, “I asked questions which she would not answer” and “I left in a huff – nothing signed”.

103. The third will was made on 27 September 2012 and was prepared by Michael Shephard of Shephard & Shephard Solicitors. Under the 2012 will, Mr McClure appointed the financial secretary of the Salvation Army as executor, gave the contents of the Strathfield Home to Mr Camilleri and Mrs H Schwanke in equal shares, and left the residue of the estate to the Salvation Army for its general purposes.

104. Mr Shephard was recommended and introduced to Mr McClure by Mr Evans, the Salvation Army’s bequest manager at the time. Mr Evans arranged the meetings between Mr McClure and Mr Shephard in relation to Mr McClure’s 2012 will and drove Mr McClure to them (Evans at [21]–[24]).

105. Between 2012 and 2016, Mr McClure made a series of donations to the Salvation Army and became part of its “Honoured Friends” program. From 2012 until Mr Evans’ retirement on 8 September 2016, Mr Evans visited Mr McClure at his home and had various discussions with him about his life and testamentary intentions. Mr Evans said that during one of their discussions, Mr McClure described the people who assisted him as a lady who came from Mount Druitt who cooked and cleaned one day a week (I infer this to be a reference to Mrs H Schwanke) and a handyman and gardener, “Frank”, who came one or two days a week.

106. The fourth will made by Mr McClure was the 2016 Will, which was prepared by Bull, Son & Schmidt Solicitors and executed on 27 May 2016.

107. Under the 2016 Will, Mr McClure:

1. revoked all former testamentary dispositions (cl 1);

2. appointed the financial director of the Salvation Army operating in Sydney as executor (cl 2);

3. gave his personal effects and the contents of the Strathfield Home (including safes, any jewellery and cash) to Mrs H Schwanke and left the residue of the estate (including any assets which Mr McClure held overseas) to the Salvation Army (cll 3 and 4); and

4. directed that Bull, Son & Schmidt Solicitors were to act for the estate in the probate application and administration (cl 7).

108. Mr Foulsham’s evidence confirms that the 2016 Will was signed by Mr McClure in the presence of he and Ms Linda Foulsham and that, at Mr McClure’s request, they attested and subscribed to the 2016 Will in Mr McClure’s presence (Foulsham at [1]). Mr Foulsham’s evidence was not challenged and I accept that it establishes the due execution of the 2016 Will.

109. Mr Evans has no recollection of speaking with Mr McClure about Mr Foulsham, making arrangements for Mr McClure to meet with Mr Foulsham in relation to the preparation and execution of the 2016 Will or speaking to Mr Foulsham about Mr McClure, although his affidavit refers to a file note which records that Mr McClure asked him to contact Mr Foulsham to inform him that Mr McClure was not in a hurry for his new will (the file note is not in evidence) (Evans at [51] and [54]; T313.10–25).

110. Mr McClure’s next will was the June Will. As already noted, it was prepared by Mr Andresakis and executed by Mr McClure while a patient at the RPAH.

111. The June Will is two pages long and also has a back page. The first clause of the June Will revokes all former wills and testamentary dispositions and declares it to be Mr McClure’s last will and testament. Clauses 2 to 4 provide as follows:

“2.   I APPOINT PETER ALEXAKIS of [Mr Alexakis’ address] as Executor and Trustee (hereinafter called “my Trustee”) of this my Will AND I GIVE the whole of my estate to my Trustee UPON TRUST to sell call in and convert the same into money at such times and in such manner as my Trustee shall think fit (with power to postpone such sale and conversion for so long as he in his discretion may think fit without being responsible for any loss) and out of the proceeds thereof to pay my just debts funeral and testamentary expenses and subject thereto UPON TRUST as follows:-

A)   I GIVE a 65% share of my estate to the said PETER ALEXAKIS for his own use and benefit absolutely.

B)   I GIVE a 25% share of my estate to FRANK CAMILLERI of [Mr Camilleri’s address] for his own use and benefit absolutely.

C)   I GIVE a 5% share of my estate to HILDEGARD SCHWANKE for her own use and benefit absolutely.

D)   I GIVE a 5% share of my estate to the daughter of Hildegard Schwanke, namely MARIANNE (also known as Marianna) SCHWANKE for her own use and benefit absolutely.

BUT IF any of my abovenamed beneficiaries dies before me or before attaining a vested interest leaving children, then those children shall on attaining their majority (or marrying under that age) take equally the share which their parent would otherwise have taken.

3.   I say that I do not wish to leave anything to my brother or to his children who I have not had any contact with for at least 20 years.

4.   I do not want to leave anything to the Salvation Army as I had in my previous Will as I do not want to leave any part of my estate to an organisation that has failed in the past to protect vulnerable children in its care.”

112. Clause 5 is a boilerplate clause that provides for the Trustee to have powers to apply any part of the income or capital for the benefit of any beneficiary, to invest, change investments and to borrow money on such terms as he thinks fit.

113. Mr McClure’s sixth will is the July Will. It was prepared by Mr Andresakis and executed by Mr McClure on 10 July 2017 at the Strathfield Home, 14 days after his discharge from the RPAH.

114. The July Will is three pages long and also has a back page. It is in the same terms as the June Will other than clause 2, which provides as follows:

“2.   I APPOINT ANGELO ANDRESAKIS of [Mr Andresakis’ address] as Executor and Trustee (hereinafter called “my Trustee”) of this my Will AND I GIVE the whole of my estate to my Trustee UPON TRUST to sell call in and convert the same into money at such times and in such manner as my Trustee shall think fit (with power to postpone such sale and conversion for so long as he in his discretion may think fit without being responsible for any loss) and out of the proceeds thereof to pay my just debts funeral and testamentary expenses and subject thereto UPON TRUST as follows:-

(A)   I GIVE my [Strathfield Home] and the contents thereof (except the contents set out in clause (B) below) to PETER ALEXAKIS for his own use and benefit absolutely.

(B)   I GIVE to HILDEGARD SCHWANKE the following:

(i)   The contents of 3 identical curio cabinets complete with glass shelves, glass shelf supports and set of keys for each side door (being 2 keys for each cabinet) for her own use and benefit absolutely.

(ii)   All Hummel products including the original boxes and the boxes I have stored in the attic and those in the hallway outside the bathroom.

BUT IN THE EVENT that the said Hildegard Schwanke predeceases me then I give the contents as set out above to Peter Alexakis for his own use and benefit absolutely.

(C)   I GIVE the sum of Ten thousand dollars ($10,000.00) to MAGGIE NASRA, who works for the care company I have employed for her own use and benefit absolutely.

(D)   I GIVE the rest residue and remainder of my estate as follows:

(i)   As to a 90% share thereof to PETER ALEXAKIS for his own use and benefit absolutely

(ii)   As to a 9% share thereof to FRANK CAMILLERI of [Mr Camilleri’s address] for his own use and benefit absolutely.

(iii)   As to a 1% share thereof to HILDEGARD SCHWANKE for her own use and benefit absolutely BUT IN THE EVENT that the said Hildegard Schwanke predeceases me then I give this 1% share of my estate to the said Frank Camilleri for his own use and benefit absolutely.”

115. The factual circumstances in which the 2017 Wills were prepared and executed are set out in the chronological narrative below.

Mr McClure’s estate

116. On his death, the gross value of Mr McClure’s estate was estimated to be $27,272,801, comprising the value of his share portfolio of $24,272,801 and the Strathfield Home of $3,000,000 (T468.11–45; Exhibit 5).

117. On 30 November 2021, the total net assets held by Mr McClure’s estate and controlled entity Edlan No. 100 Pty Limited was valued by the independent administrator appointed by the Court to be $37,646,747.44 (Estimated Net Assets dated 30 November 2021 (Exhibit 4)). This is made up of estate assets comprising cash in bank accounts (of $2,102,658.52) and the Strathfield Home and contents (of $3,315,580) and net assets held by Edlan No. 100 Pty Limited comprising cash and shares (of $32,228,508.92), noting that no provision was made for any deferred taxation liabilities or outstanding legal claims against the estate.

2014: Dr Alexakis starts treating Mr McClure

118. Dr Alexakis first met Mr McClure as a new patient of his medical practice, the Strathfield Family Medical Centre (SFMC), on 15 January 2014, following the retirement of Mr McClure’s previous GP. The new patient form, completed by Mr McClure on 15 January 2014, records that Mr McClure’s emergency contact is Mr Camilleri, includes a contact phone number for Mr Camilleri and describes Mr McClure’s next of kin as “NONE KNOWN” (MTB2–3).

119. Dr Alexakis graduated from the University of Sydney in 1985 with a Bachelor of Medicine and a Bachelor of Surgery and has been involved in general medical practice for over 30 years. He is married to Tracy Alexakis and they have four children.

120. The SFMC is a large bulk billing medical practice. It was opened by Dr Alexakis in 1991 and he continues to work there. On average, Dr Alexakis sees about 40 patients a day, usually for 15 minute consultations although sometimes for longer (30 to 40 minutes) or shorter (10 minutes) (T146.27–49). There are three or four other medical practitioners and a practice manager who work at the SFMC. Mrs Alexakis is an administrator of the SFMC and her mobile number is a contact number for the SFMC albeit not the main one (T113.15).

121. Dr Alexakis was Mr McClure’s GP from January 2014 to October 2017. He was in regular contact with Mr McClure during that period by way of consultations at the SFMC, visits to Mr McClure during his admission to the RPAH from 26 May to 26 June 2017 and, following Mr McClure’s discharge from the RPAH, regular phone calls and home visits. Dr Alexakis ceased being Mr McClure’s GP on 5 October 2017 in circumstances that I will come to describe below.

122. The evidence includes SFMC patient records relating to Mr McClure for the period 15 January 2014 to 5 October 2017 (SFMC Patient Report) (CB484–513). The SFMC Patient Report indicates that between 15 January 2014 and mid-2015 inclusive Dr Alexakis had 11 consultations with Mr McClure. It also records that by mid-July 2015 Mr McClure had been diagnosed with various medical conditions including colon cancer, diabetes NIDDM (type 2 diabetes), oedema, hypertension, anaemia, renal failure and cellulitis (CB607).

June 2015 – late 2016: Admission to Concord Hospital and appointments with Drs Spalding and Alexakis

123. On 19 June 2015, Mr McClure was admitted to Concord Hospital following a fall. Dr Spalding attended on Mr McClure during his admission. He told her that he lived alone, had no close contacts and an interest in euthanasia and the organisation known as Exit Australia (Spalding at [5]–[7]). He also mentioned his need to change his will (T424.11–3).

124. On the morning of 20 June 2015, Mr McClure discharged himself from Concord Hospital against medical advice and without informing hospital staff. Dr Spalding called Mr McClure at home and he agreed to return to Concord Hospital and was re-admitted that day. His re-admission summary sheet records that he presented with “suicidal ideation” and had “NIL Contact” in the sections headed “Person to Contact” and “Next of Kin” (CB970).

125. On the afternoon of 22 June 2015, Mr McClure again discharged himself from Concord Hospital against medical advice and without informing medical staff. Later that day, Mr McClure called Dr Spalding and told her that he did not wish to be in Concord Hospital as he needed to do company work, complete his tax returns and review his will (Spalding at [15]–[16]).

126. On 24 June 2015, Mr McClure attended an appointment with Dr Spalding at the Concord Aged Care and Rehabilitation Outpatient Clinic (Concord Clinic). As was her usual practice, Dr Spalding sent a letter to Mr McClure’s GP, Dr Alexakis, regarding the appointment and Mr McClure’s hospital admission (CB751). Dr Spalding’s letter reviews Mr McClure’s medical status at the time, referring to likely prostate malignancy, possible bowel malignancy, acute and chronic renal failure, outlines a management plan involving a colonoscopy and colorectal surgery, and states the following (CB753):

“There was some concern regarding mood, given the potential for malignancy and Mr McClure being alone and with very few social supports… He did bring Frank [Camilleri] along to his clinic appointment but did not allow me to talk to him. He did provide Frank’s contact details in the event of emergency. Mr McClure tells me that there are many things that he needs to arrange in terms or finances as he needs to update his Will and also make arrangements for his five companies. He is focussed on getting his affairs in order for the end of the financial year currently.”

127. Mr McClure did not drive and relied on the assistance of Mr Camilleri or taxis for transport. Mr Camilleri sometimes accompanied Mr McClure to medical appointments but Mr McClure never allowed Mr Camilleri to join consultations or to speak to Dr Spalding privately and told Dr Spalding that Mr Camilleri should only be contacted in an emergency (Spalding at [20]–[21]). He also forbid Dr Alexakis from engaging with or talking to Mr Camilleri (T56.20).

128. Mr McClure saw Dr Alexakis at the SFMC on 26 June, 6 July, 29 July, 5 August, 12 August and 28 August 2015. The SFMC Patient Report records that Mr McClure discharged himself from Concord Hospital against medical advice, had a problem with depression and anxiety associated with admission, was not keen to return to Concord Hospital and was starting to use insulin for his diabetes.

129. In an undated letter from Mr McClure to Mr Camilleri titled “F.Y.I (Friday’s happenings)” (CB1084), Mr McClure refers to making an appointment with his “Greek G.P.” to bring him up to date about his colonoscopy at Concord Hospital and that he wants to see him before his next appointment at the hospital. The letter records that Mr McClure received a call from Concord Hospital, which he believed was from Dr Spalding’s secretary, with a reminder of his appointment and that he was “not friendly with her, and cross examined her, telling of [his] experiences with tricks”. Mr McClure’s letter also says that he told “Hildegard and her daughter” of his “nightime experiences at Concord” and they referred him to Westmead Private Hospital for surgery, which he planned to discuss with his “Greek doctor”.

130. In a letter dated 8 July 2015 from Dr Spalding to another specialist, Dr Prabhan, Dr Spalding records that Mr McClure was advised that he should have surgery, Mr McClure was particularly resistant to staying in Concord Hospital and they discussed the potential for the surgery to occur within the private sector. The letter also notes that Mr McClure did not drive.

131. Mr McClure saw Dr Spalding at the Concord Clinic on 2, 4 and 9 September 2015 to manage oedema in Mr McClure’s legs. She recommended that Mr McClure be admitted to hospital which he declined.

132. Mr McClure chose to have private surgery at the Mater Hospital. Dr Spalding reported this to Dr Alexakis in a letter dated 9 September 2015, stating: “You will be aware that he is uninsured and had intervention at the Mater at considerable cost ($33000)”. Dr Spalding’s letter also notes that Mr McClure found the private sector hospitalisation more difficult than Concord Hospital, he was concerned about the appropriateness of treatment and whether therapy was recommended for financial gain, and that it had been extremely difficult to engage Mr McClure in medical intervention to date.

133. In September and October 2015, Dr Spalding and Mr McClure discussed treatment options and his choice between chemotherapy and symptom management. Mr McClure indicated that he did not want anything else done unless absolutely necessary and wanted to be comfortable. Dr Spalding advised Dr Alexakis, in letters dated 16 and 29 September 2015, that she had a discussion with Mr McClure about not proceeding with any further treatment and managing expectancy.

134. During an attendance on Dr Spalding on 16 October 2015, Mr McClure told her that he had suicidal thoughts and she suggested that he see a clinical psychologist. Dr Spalding reported this to Dr Alexakis in a letter to him of the same date. Dr Spalding’s letter notes that trust and rapport takes time with Mr McClure, he did not want to go into any residential aged care facility, his primary goal was quality of life and being independent, and he was offered but declined psychological review for ongoing support.

135. In December 2015, Mr McClure told Mr Evans that he was hurt and disgusted by the child abuse situation with the Salvation Army and other Christian churches and that Mr McClure believed he was a target for elder abuse by people with whom he came in contact (Evans at [46]). The same sentiments were expressed by Mr McClure to Mr Evans when Mr Evans visited Mr McClure at his Strathfield Home on 18 April 2016. According to Mr Evans, on that occasion, Mr McClure said he realised that all organisations have weaknesses and failures and he was still confident in wanting to leave his estate to the Salvation Army (Evans at [48]).

136. In a report to Dr Alexakis dated 11 May 2016, Dr Spalding advised that Mr McClure had declined further intervention, had no plans to end his life but did worry about the future and that his “primary aim is making money with his share portfolio, which he is continuing to enjoy”.

137. Throughout this period, Mr McClure continued to see Dr Alexakis at the SFMC. The SFMC Patient Report records consultations on the following days and includes the following notes: on 22 February 2016, Mr McClure was “getting help from Frank but his wife is unwell and he is a bit distracted and anxious”; on 22 March 2016, Dr Alexakis advised Mr McClure of a taxi voucher scheme – Dr Alexakis gives evidence that he did so to assist with Mr McClure’s limited mobility (Alexakis at [28]); on 11 May 2016, Mr McClure reported eyesight issues and expressed worry about the future; and on 8 June 2016, Dr Alexakis reported that Mr McClure sits all day with little if any movement out of his chair and watches “stocks and market”.

138. As already noted, Mr McClure made the 2016 Will on 27 May 2016. When compared with Mr McClure’s prior and subsequent wills, a notable feature of the 2016 Will is that it omitted Mr Camilleri as a beneficiary. The 2016 Will was prepared shortly after Mr Camilleri commenced providing full-time care to his wife and was no longer available to work for or assist Mr McClure as much as he had in the past. The evidence suggests that the relationship between Mr McClure and Mr Camilleri became less close around this time (see letter from Mr Camilleri to Mr McClure dated 12 April 2016 at CB1078).

139. On 12 June 2016, Mr McClure sent a letter to Mr Foulsham that enclosed payment of his account for $605 by cheque and withdrew Mr Foulsham’s authority to act on his behalf in any matter (CSTB13), including those described in a letter from Mr Foulsham dated 6 June 2016, namely, delivering title documents for the Strathfield Home, checking the current registered offices of Mr McClure’s companies and appointing a guardian for Mr McClure in circumstances where he is unable to make decisions for himself (CSTB7).

140. Mr McClure saw Dr Spalding at the Concord Clinic on 2 September 2016. On that occasion Mr McClure told Dr Spalding the following: he had arranged for a new will to be drafted but had not signed it as he remained uncertain about whether he was making the right decision; he did not trust the solicitor who had visited him at home; he could not leave his assets to the Salvation Army after knowing it allowed child abuse; there was no one Mr McClure trusted for an enduring power of attorney; and he had not seen “Frank” (who he described as working for him but as not understanding his financial affairs) regularly because Frank’s wife was unwell and he was trying not to ask for his assistance. Pausing here, other than the 2016 Will, there is no evidence of a “new will” that had been drafted for Mr McClure around this time.

141. Dr Spalding also gives evidence that, prior to their discussion on 2 September 2016, in 2015 and earlier in 2016, Dr Spalding had several discussions with Mr McClure about getting his affairs in order. During those discussions, Mr McClure told Dr Spalding that he wanted to change his will because he was unhappy with the findings from the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), he did not want to leave his assets to the Salvation Army and he thought that “charitable institutions all seem as bad as each other”. He also told her that he did not know who was best placed to receive his estate, there was no one in his life who was important and that the person with whom he had been closest to was deceased, who he described as a Russian lady who had been in real estate with him in the United States of America.

142. In cross-examination, Dr Spalding described Mr McClure as being troubled by his views regarding the Salvation Army and said he was definite in his views that he did not want to give his estate to a public institution or body. She gave evidence that throughout the time she knew Mr McClure, he was troubled by this and was trying to work out who would actually get his assets (T427.12–21; T430.50–431.1).

143. Dr Spalding’s letter to Dr Alexakis dated 2 September 2016 refers to her discussions with Mr McClure that day about getting his affairs in order and about prolonging Mr McClure’s ability to remain at home by providing palliative care. Her letter states:

“[Mr McClure] is very keen to get his affairs in order and has made previous Wills but is now keen to revise and is currently worrying about which charitable institution he should bequeath his wealth to. We discussed the office of the Public Trustee, as he does not have anyone he would appoint as an Enduring Power of Attorney and we spoke about the possibility of Guardianship Tribunal Order for financial management in the event that this was required. Mr McClure is also considering engaging a financial service, which would be able to assist in knowing his how finances are arranged. He continues with trade sharing on a daily basis.

I have arranged to review Mr McClure in December but would be happy to see him earlier. He is aware that if he develops any symptoms he can contact our reception and we will see him urgently and are happy to provide palliative care support as necessary.”

144. Dr Alexakis also gave evidence that on two separate occasions, during routine consultations at the SFMC in late 2016, Mr McClure asked Dr Alexakis for assistance to find a solicitor as Mr McClure wanted to amend his will. Dr Alexakis deposed that he told Mr McClure that there were a lot of solicitors available in the Burwood and Strathfield areas and that, if he had trouble deciding, he could use the Public Trustee. According to Dr Alexakis, Mr McClure said his previous solicitor had been “unprofessional” and his previous experience with the Public Trustee was “not great” (Alexakis at [43]–[45]).

145. Dr Alexakis accepted in cross-examination that, in the first of these discussions, Mr McClure told him that the Salvation Army was a beneficiary under his will and he wanted to remove them. Dr Alexakis gave evidence that he did not engage in any interaction regarding Mr McClure’s will or the Salvation Army at the time, paid little attention to it and focused on addressing Mr McClure’s physical concerns (T94.23–31).

146. On 12 September 2016, Mr McClure was admitted to Concord Hospital’s aged care ward for constipation and associated pain. He was discharged on 15 September 2016.

147. On 28 October 2016, Dr Alexakis was notified by Dr Gary McKay that Mr McClure was overdue for his repeat colonoscopy but had been removed from the recall database due to Mr McClure’s request that he no longer wished to proceed with medical treatment (CB663).

148. On 16 November 2016, Mr McClure was referred to a community team operated by the Sydney Local Health District which provides short-term support to outpatients requiring assistance with daily activities (START team) (Spalding at [70]).

149. The SFMC Patient Report records that Mr McClure had eight consultations with Dr Alexakis between 23 June and 18 November 2016.

150. Dr Alexakis gave evidence that Mr McClure was a challenging patient due to his underlying chronic and complex medical conditions and that his clinical visits to the SFMC were usually around 30 minutes but extended to one hour at times. Dr Alexakis deposed that Mr McClure was actively involved in decision-making about his medical management, where and by whom he was to be treated and the therapeutic path to be taken, and that on occasion Mr McClure asked questions about what his specialists and therapists had said. He also said that Mr McClure informed him on many occasions that his goal was to live independently and with dignity, he did not want to end his life in suffering and prolongation, and he had informed Dr Alexakis that he was a member of the “Exit Foundation” which promotes choice in end of life wishes (Alexakis at [24]). I accept this evidence. It is consistent with Dr Spalding’s evidence and the contents of her reports to Dr Alexakis and other doctors as outlined at [133]–[134] above.

January – 2 May 2017: Admission to Concord Hospital and some home visits

151. On 4 January 2017, a My Aged Care (MAC) assessment was conducted of Mr McClure. The report of that assessment records the following (CB650): Mr McClure has no carer or family and reports loneliness at times; he shops online but finds organisational tasks difficult; his goal is to remain in the community with support; he is aware that his care needs would increase; he wishes to have services and approvals in place to support him in the future; he presents as alert and orientated; he recorded 28/30 on the mini mental state examination (MMSE) conducted; and he was approved for “Home Care Package Level 3–4”, being residential respite at high level and permanent residential care for the future.

152. On 19 January 2017, Mr McClure was admitted to Concord Hospital after experiencing a hypoglycaemic episode due to self-administering excessive insulin. He was attended by Dr Ng and discharged to his home on 23 January 2017. The discharge notes record that Mr McClure would benefit from services shortly on discharge.

705. I do not accept the Salvation Army’s submission that this is an extremely strong equitable undue influence case because it involves a “grossly improvident transaction” (T493.23–8). That submission would have some force if I had found that Dr Alexakis had come to an arrangement or reached an understanding with Mr McClure that Mr McClure would include him in his wills in return for Dr Alexakis assisting to get Mr McClure out of hospital and providing him with care at home thereafter. In the absence of any inter vivos dealing(s) of that nature, I do not consider that the bequests to Dr Alexakis under the 2017 Wills could be characterised as “improvident transactions”. The bequests were large, with the provision to Dr Alexakis under the July Will including most of Mr McClure’s property. However, I do not think that the value of the gifts demonstrate improvidence in the context where Mr McClure had a power of revocation that he could have exercised at any time and Dr Alexakis was unaware of the terms of the 2017 Wills at the relevant times.

706. The gifts to Dr Alexakis under the 2017 Wills are of a nature that called for vigilant scrutiny of the facts. However, in my view, they are sufficiently explicable when regard is had to Mr McClure’s personal circumstances, his expressed intentions regarding the Salvation Army and charities more generally, his apparent affection and gratitude to Dr Alexakis and the matters referred to at [608] and [654]–[655] above, so as to satisfy me that Mr McClure exercised his own mind and judgement when he instructed Mr Andresakis to include them in the 2017 Wills.

707. For these reasons, I do not accept that the law of probate cannot achieve a just result without the application of an equitable presumption of undue influence in this case.

708. As to the Schwankes’ submissions that the requirement for a recipient of a gift to give evidence is reasonable as a justification for the application of equitable undue influence, that an expansion of equitable undue influence would support freedom of testation by ensuring that a will expressed a testator’s intentions rather than rewarding those who have passed undue influence upon them and their reliance on academic criticism that the law does not provide adequate protection to vulnerable testators who are tricked or coerced into making a will, those matters are not, to my mind, of weight in this case given that Dr Alexakis gave evidence about the circumstances surrounding the making and execution of the 2017 Wills and I have concluded that Mr McClure was not tricked or coerced into making the 2017 Wills, whether by fraud or probate undue influence.

Unconscionable conduct

717. At the hearing, Mr Camilleri submitted that Dr Alexakis’ conduct vis-à-vis Mr McClure was such that Dr Alexakis ought to be disentitled from receiving any benefit from Mr McClure’s estate, relying on equitable principles of unconscionable conduct.

718. Mr Camilleri submitted as follows (Closing Submissions for the Second Defendant at [8]):

“The fact that these proceedings have been characterised as probate proceedings does not render unavailable the grant of other (equitable) relief. It is unremarkable for proceedings in the Probate List to involve other claims to relief. In any event, the complaint regarding the inclusion of Dr Alexakis as a beneficiary in the July 2017 Will (and, if necessary, the June 2017 Will) does not arise solely as a dispute in a testamentary context. The evidence identifies that the Deceased’s inclusion of Dr Alexakis as a beneficiary was part of an arrangement involving a quid pro quo. Self-evidently, this was an inter vivos transaction or arrangement, and one that is open to scrutiny in the context of general equitable principles (quite separately from any question as to the availability of general equitable principles in a probate context).”

719. Mr Camilleri’s primary position was that Dr Alexakis’ retention of any financial benefits under the July Will or the June Will would be unconscientious in the context of the alleged quid pro quo arrangements, based on the application of orthodox equitable principles concerning unconscionability arising from Dr Alexakis taking advantage of Mr McClure’s special disability.

720. He submitted that the relevant vulnerability of Mr McClure, namely his social isolation, age, health and reliance on Dr Alexakis to get him out of hospital and care for him at home, constituted a special disability which was said to have tainted the “transaction” or “arrangement” pursuant to which Dr Alexakis was named as a beneficiary under the 2017 Wills. He submitted that: the quid pro quo arrangements were unnecessary, grossly improvident and obviously so; Dr Alexakis was unable to rely on Mr Andresakis’ involvement as he was little more than a “legally-trained scribe”; and the willingness of Dr Alexakis to leverage his trust, confidence and authority as Mr McClure’s GP for the purpose of gaining and now seeking to retain that financial benefit was unconscionable. He also submitted that no finding of deliberate dishonesty against Dr Alexakis or a finding that he “groomed” Mr McClure was needed, although he argued that Dr Alexakis’ conduct should attract serious criticism as it involved moral turpitude and obloquy in the context of the doctor and patient relationship.

721. Mr Camilleri acknowledged the inter-relationship between undue influence and unconscionability and submitted that the nuanced debate concerning probate and equitable undue influence is unnecessary as unconscionable conduct principles provide a remedy by way of constructive trust over Dr Alexakis’ interest under the 2017 Wills. He submitted that he and the Schwankes were the appropriate beneficiaries of that constructive trust by reason of s 42(2) of the Succession Act and the maxim that equity follows the law.

722. Dr Alexakis submitted that the principles of unconscionable conduct cannot apply to the gifts under the 2017 Wills in the absence of any inter vivos monetary benefit and rejected the description given by Mr Camilleri that his conduct involved “moral turpitude and obloquy” (T570.34–40).

723. The Salvation Army and the Schwankes had also pleaded that the 2017 Wills and the gifts to Dr Alexakis under those wills resulted from unconscionable conduct in their respective cross-claims. The Salvation Army did not address that claim in their written or oral submissions and described it as a “novel argument” during closing submissions (T563.17). The Schwankes confirmed that they were not advancing the unconscionable conduct case (T553.35; T560.5–10).

Consideration and determination

724. The equitable principles relating to unconscionable conduct are closely related to but distinct from those governing undue influence. As Deane J explained in Commercial Bank of Australia v Amadio (1983) 151 CLR 447 at 474–5; [1983] HCA 14 (Commercial Bank of Australia v Amadio):

“Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party (see Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 at 720; Watkins v Combes (1922) 30 CLR 180 at 193–4; Morrison v Coast Finance Ltd (1965) 55 DLR (2d) 710 at 713). Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogued. In Blomley v Ryan (supra, at 405) . Fullagar J listed some examples of such disability: “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”. As Fullagar J remarked, the common characteristic of such adverse circumstances “seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other”.

725. Similarly, Mason J (as his Honour then was) said, at 461:

“… Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.”

726. The doctrine applies where one party to the transaction is placed at a special disadvantage vis-à-vis the other in the sense that the disabling condition or circumstance is one which seriously affects the ability of that party to make a judgement as to his or her own best interests and the other party understood the first party to be at a special disadvantage and its effect with respect to his or her not being in a position to look after his or her interests. Where those circumstances make it prima facie unfair or “unconscientious” that the “stronger party” procure or accept the weaker party’s assent to the impugned transaction, the onus is cast on the stronger party to show that the transaction was fair, just and reasonable: Mentink v Olsen [2020] NSWCA 182 (Mentink v Olsen) at [2], per Meagher and Payne JJA, citing Commercial Bank of Australia v Amadio at 474.

727. As with undue influence, it is not necessary that the transaction be induced or instigated by the stronger party and the existence of independent advice may be important. It is the opportunity to offer independent advice or the absence of opportunity that is important: Bridgewater v Leahy at [100], per Gaudron, Gummow and Kirby JJ. The concern which engages the principle of unconscionable conduct is to prevent victimisation of the weaker party by the stronger: Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [117] per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ, citing Commercial Bank of Australia v Amadio at 474–5, per Deane J; Wu v Ling [2016] NSWCA 322 (Wu v Ling) at [13], per Leeming JA.

728. Mr Camilleri argued that there was no clear reason, by reference to the authorities nor general principles, why equitable principles of unconscionability cannot have application with respect to testamentary gifts as equity was capable of enforcing in a testamentary context an inter vivos arrangement for the conferral of certain testamentary benefits. He contended that it would be at least curious (if not inexplicable) why equity could not, in a testamentary context, give relief in respect of an inter vivos arrangement that arose and which was thereafter sought to be enforced in circumstances involving unconscionability.

729. He placed reliance on the observations by Meagher and Payne JJA in Mentink v Olsen at [44], where their Honours stated:

“… The appellant’s remaining argument was that the deceased intended to make a bequest in the amount of the gift and would have done so if the inter vivos gift had not been made. Thus, it was said, it was fair, just and reasonable that the appellant retain the gift. This argument does not take account of the primary judge’s finding that the unconscionable conduct extended to the deceased’s initial decision to make the gift by way of a bequest, nor of the possibility of John Olsen bringing a claim against the estate.”

730. I do not consider that the findings of Sackar J, the primary judge in Olsen v Mentink [2019] NSWSC 1299, assists Mr Camilleri in this case. Unlike the position of Dr Alexakis and Mr McClure, his Honour found that the defendant initiated the deceased’s decision to make changes to her will, knew that the deceased proposed to leave her $2.2 million, was involved in her decisions to make a gift as opposed to a bequest of the $2.2 million, was present at a meeting in which the deceased misspoke about what had happened and did nothing to correct it, and the deceased was confused and of ill-health.

731. I accept that Mr McClure was suffering a disabling condition or circumstance which seriously affected his ability to make a judgement as to his own best interests. His vulnerability and desperation to get out of hospital, which led him to offer to pay Dr Alexakis $10,000 to help him abscond from the RPAH, together with his advanced age, ill health and physical weakness satisfy me of that matter. I also accept that Dr Alexakis had knowledge of Mr McClure’s special disability.

732. However, the difficulty with Mr Camilleri’s unconscionable conduct claim is that it was premised on Dr Alexakis’ quid pro quo arrangement with Mr McClure, which Mr Camilleri characterised as the inter vivos transaction or arrangement that was open to scrutiny. As I have rejected that Dr Alexakis and Mr McClure had an arrangement or understanding that Mr McClure was to make provision in his wills for Dr Alexakis in return for Dr Alexakis getting Mr McClure out of the RPAH and providing him with care at home thereafter, the foundational aspect of Mr Camilleri’s claim is missing, namely, the lack of any relevant “dealing” or “transaction” between Dr Alexakis and Mr McClure in relation to the financial benefits which favour Dr Alexakis under the 2017 Wills.

733. Thus, Mr McClure’s special disability did not “taint the ‘transaction’ or ‘arrangement’ pursuant to which Dr Alexakis was named as a beneficiary in the relevant testamentary instruments”. Nor could it be said that Dr Alexakis unconscientiously took advantage of Mr McClure’s disability by seeking to procure or accept Mr McClure’s assent to an arrangement that provided Dr Alexakis with the benefits under the 2017 Wills which were entirely unnecessary and grossly improvident.

734. In the absence of an inter vivos dealing, transaction or understanding between Mr McClure and Dr Alexakis that Mr McClure was to include Dr Alexakis as a beneficiary under the 2017 Wills in return for Dr Alexakis providing care and assistance to Mr McClure, I do not consider that Dr Alexakis’ receipt and retention of the gifts under the 2017 Wills involves any unconscientious taking advantage of Mr McClure’s position or is sufficient to amount to the passive acceptance of benefits that is unconscionable in the circumstances as I have found them.

735. I do not accept Mr Camilleri’s alternate submission that was advanced at the hearing that it was unconscionable for Dr Alexakis to simply receive and retain the benefits of his gifts under the July Will (or June Will) because of the existence of the doctor and patient relationship.

736. As was put in oral submissions:

(T536.21–33)

The situation can be as simple as Dr Alexakis receiving and retaining the benefit. So, for example, if – and I emphasise that the unconscionability is particularly in this scenario the retention of the benefit, because if a person is completely passive, they have done nothing to procure it. They have just received it. But here, if Dr Alexakis, after the death of Mr McClure, had found out for the very first time that he was to be the beneficiary under his estate, 90%, and Dr Alexakis had, in terms of his thought process “this was a doctor-patient relationship – he relied upon me. I don’t think this is appropriate. I am going to not take the gift” then there is no unconscionability, because he hasn’t sought to retain it.

(T537.1–9)

….But part of the context is, obviously, the relationship, but also the nature of the gift. Is the gift explicable by ordinary experience or the ordinary - the usual nature of that particular relationship?  So if the gift to the doctor was very expensive bottles of wine or a much less significant financial benefit, it would strain the boundaries of unconscionability for me to say it's all unconscionable, it must be returned, that's the end of it - because of the nature of the gift. But here, when one is talking about a percentage - high percentages of a multimillion‑dollar estate, when the only relationship between these two persons was doctor‑patient….

(T538.7–14)

But the gift, in the scenario of a gift, the gift is effective immediately. It is passively received. It is not an arrangement, nor is it a transaction in that sense. For example, one could take a bundle of cash, leave it at someone’s front door, never even knock on the door. It’s still a gift; there’s still a receipt, entirely passive, but it can still be unconscionable, because it’s a gift. And there is no reason, we say with respect, for testamentary dispositions’ to be treated differently, provided the other facts establish the moral criticism that’s necessary.

737. I accept that the grant in equity of relief against unconscionable conduct may, in some circumstances, be justified not by the fact that a donee has brought about a transaction but by their acceptance of the transaction and its benefits, albeit at the invitation of the donor: Bridgewater v Leahy at [76]; Stivactas v Michaletos (No 2) [1994] ANZ ConvR 252; (1993) NSW ConvR 55-683 per Mahoney JA (as his Honour then was).

738. Provided that the stronger party has the requisite knowledge in respect of the weaker party’s special disability, the passive acceptance or receipt of a benefit under an impugned transaction may amount to unconscionable conduct. As identified by Leeming JA in Wu v Ling at [14]–[15], “victimisation” is no “narrow concept” and can include the passive acceptance of a benefit.

739. What lies at the heart of the unconscionable conduct doctrine is that advantage was taken by Dr Alexakis of Mr McClure’s special disadvantage: Johnson v Smith [2010] NSWCA 306 at [5]. In this case, I have made no finding of any “victimisation” of Mr McClure by Dr Alexakis. Nor have I found facts that establish that any moral criticism or obloquy should be attributed to Dr Alexakis in his dealings with Mr McClure. Further, Dr Alexakis’ passive acceptance of the benefits under the 2017 Wills could not be said to have potential for disadvantage to Mr McClure. In those circumstances, and having regard to my findings in this case, I do not accept that it is unconscionable for Dr Alexakis to receive the testamentary benefits under the July Will notwithstanding the monetary value of those gifts and the primary relationship between Mr McClure and Dr Alexakis was that of patient and doctor.

Conclusion on equitable claims

740. It follows from my findings that the defendants’ claims that Dr Alexakis, as administrator of Mr McClure’s estate, holds the gifts to him under the July Will of the Strathfield Home and 90% of the residue on constructive trust on the basis that the gifts were procured by equitable undue influence or unconscionable conduct fails.

741. In light of my conclusions, it is not necessary to deal with the question of whether the Salvation Army or Mr Camilleri and Ms H Schwanke should be the beneficiaries of the proposed constructive trust. I should record that, if I had been satisfied that the gifts to Dr Alexakis were procured by his undue influence or unconscionable conduct, I would have been inclined to treat the gifts of the Strathfield Home, its contents and 90% of the residue as failing gifts which would fall into residue and be split between Mr Camilleri and the Schwankes, rather than be held on constructive trust for the Salvation Army.

Costs and orders

742. I have deferred dealing with the issue of costs to enable the parties to consider these reasons and will direct them to provide written submissions on costs within 21 days with a view to dealing with that issue on the papers if it cannot be agreed.

743. For these reasons, I make the following orders:

1. Letters of administration of the will dated 10 July 2017 of Raymond John McClure of Strathfield be granted to Peter Alexakis, a beneficiary under that will.

2. Refer the matter to the Senior Deputy Registrar in Probate to complete the grant in accordance with the Rules.

1. Dismiss the First Defendant’s Amended Statement of Cross-Claim (First Cross-Claim) filed on 11 June 2020.

2. Dismiss the Second Defendant’s Statement of Cross-Claim (Second Cross-Claim) filed on 25 March 2021.

3. Dismiss the Third and Fourth Defendants’ Statement of Cross-Claim (Third Cross-Claim) filed on 10 November 2021.

4. Direct the parties to file and serve brief written submissions as to costs within 21 days of these orders together with any affidavit evidence relied on in support of those submissions, and that the question of costs be dealt with on the papers if no agreement can be reached on that issue.

Addendum: When these reasons were handed down, plaintiff’s counsel requested a stay to provide time to deal with the independent administrator appointed by the Court prior to the orders taking effect. There was no objection to that order and, accordingly, I make the following additional order.

7. Stay the operation of Orders (1) to (5) for 21 days.

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Endnote

Decision last updated: 16 May 2023