Schwanke v Alexakis; Camilleri v Alexakis

[2024] NSWCA 118

114 NSWLR 459

Schwanke v Alexakis; Camilleri v Alexakis

[EDITORIAL NOTE: An application for special leave to appeal to the High Court was refused: [2024] HCASL 246; [2024] HCASL 247.]

[2024] NSWCA 118 Court of Appeal Ward P, Gleeson and Adamson JJA 25–27 March, 22 May 2024 SUCCESSION — Contested probate — Unconscionable conduct — Onus of proof — Whether equitable principles apply. SUCCESSION — Contested probate — Undue influence — Onus of proof — Whether presumption of undue influence arises. SUCCESSION — Contested probate — Costs — Where reasonable grounds for belief that will induced by undue influence — Whether costs paid out of estate. SUCCESSION — Contested probate — Costs — Relevance of financial interest in proceedings .

A man died in November 2017. He had made a will in June 2017 and another will in July 2017. Both wills left a substantial proportion of his estate to his doctor. Both wills were made in circumstances where the man was suffering from serious health issues. Three of the other beneficiaries under the wills, as well as a charity which was the beneficiary under an earlier will made in May 2016, challenged the wills on the basis that they were the product of undue influence, fraud or unconscionable conduct.

The primary judge ordered that letters of administration of the July will be granted to the doctor. The other beneficiaries appealed.

Held (allowing the appeals and cross-appeal on costs but otherwise dismissing the appeals and cross-appeal): (1) Equitable principles of unconscionability as they apply to inter vivos transactions do not apply to testamentary gifts. ([1]; [5]; [187], [234]–[235])

(2) The onus of proving undue influence is on those seeking to impugn the will on that basis. There is no presumption of undue influence that arises once those seeking to impugn the will have proved that the testator is subject to a special disability of which the beneficiary is aware. ([1]; [5]; [187]–[188], [214], [216]–[217])

Craig v Lamoureux[1920] AC 349; Estate of Phillips (Deceased); Legg v Duncan(Supreme Court (NSW), Needham J, 11 March 1987, unrep); Woodley-Page v Simmons(1987) 217 ALR 25; Bridgewater v Leahy(1998) 194 CLR 457;  [1998] HCA 66; Trustee for the Salvation Army (NSW) Property Trust v Becker(2007) 14 BPR 26,867;  [2007] NSWCA 136; Tobin v Ezekiel(2012) 83 NSWLR 757;  [2012] NSWCA 285; Boyce v Bunce[2015] NSWSC 1924 followed. Callaghan v Myers(1880) 1 LR (NSW) 351 considered.

(3) An unsuccessful defendant may be allowed their costs out of the estate where the actions and statements of the testator immediately before, and subsequent to, the making of the will have given the defendant reasonable grounds for believing that the execution of the will had been induced by undue influence. ([1]; [5]; [329])

Estate of Hacke; Public Trustee v Wilson(Supreme Court (NSW), Powell J, 13 November 1985, unrep) followed.

(4) Given that a financial interest in the proceedings is a prerequisite for standing in probate proceedings, it cannot be a relevant consideration on the question of costs. ([1]; [5]; [330])

(Obiter) (Gleeson JA, Ward P agreeing) The argument that equity might apply or extend its principles with respect to undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiaries or next-of-kin (the Bridgewater hypothesis), should be treated with caution. ([4]; [5]–[8]; [233])

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

CASES CITED

The following cases are cited in the judgments:

Aboody v Ryan(2012) 17 BPR 32,359;  [2012] NSWCA 395 Alexakis v Masters (No 2)[2023] NSWSC 509 Alexakis v Masters (No 3)[2023] NSWSC 694 Baker v Batt(1838) 2 Moore PC 317;  12 ER 1026 Barry v Butlin(1838) 2 Moore PC 480;  12 ER 1089 Blendell v Byrne; Estate of Blendell[2019] NSWSC 583 Blomley v Ryan(1956) 99 CLR 362;  [1956] HCA 81 Boyce v Bunce[2015] NSWSC 1924 Boyse v Rossborough(1857) 6 HL Cas 2;  (1857) 10 ER 1192 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 Browne v Dunn(1893) 6 R 67 Buckley v Maddocks(1891) 12 LR (NSW) Eq 277 Buckley v Millar(1869) 8 SCR Eq 4 Callaghan v Myers(1880) 1 LR (NSW) 351 Collector of Customs v Pozzolanic Enterprises Pty Ltd(1993) 43 FCR 280;  [1993] FCA 456 Commercial Bank of Australia Ltd v Amadio(1983) 151 CLR 447;  [1983] HCA 14 Constable v Tufnell(1833) 4 Hag Ecc 465;  162 ER 1516 Craig v Lamoureux[1920] AC 349 Dent v Bennett(1839) 4 My & Cr 269;  41 ER 105 Devries v Australian National Railways Commission(1993) 177 CLR 472;  [1993] HCA 78 Dickman v Holley; Estate of Simpson[2013] NSWSC 18 Durling v Loveland(1839) 2 Curt 225;  163 ER 393 Durnell v Corfield(1844) 1 Rob Ecc 51;  163 ER 961 Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89;  [2007] HCA 22 Fox v Percy(2003) 214 CLR 118;  [2003] HCA 22 Greville v Tylee(1851) 7 Moore PC 320;  13 ER 904 Hacke, Estate of; Public Trustee v Wilson(Supreme Court (NSW), Powell J, 13 November 1985, unrep) Hendy v Jenkins(1900) 21 LR (NSW) B&P 43 Hindson v Weatherill(1854) 5 De GM & G 301;  43 ER 886 Huguenin v Baseley(1807) 14 Ves Jr 273;  33 ER 526 Jenyns v Public Curator (Q)(1953) 90 CLR 113;  [1953] HCA 2 Johnson v Smith[2010] NSWCA 306 Jones v Dunkel(1959) 101 CLR 298;  [1959] HCA 8 Jones v Godrich(1844) 5 Moore PC 16;  13 ER 394 Lewis v Lewis(2021) 105 NSWLR 487;  [2021] NSWCA 168 Low v Guthrie[1909] AC 278 Markarian v The Queen(2005) 228 CLR 357;  [2005] HCA 25 Mayer v Coe[1968] 2 NSWR 747 Morris v English, Scottish and Australian Bank Ltd(1957) 97 CLR 624;  [1957] HCA 93 Nicholson v Knaggs[2009] VSC 64 Nitopi v Nitopi(2022) 109 NSWLR 390;  [2022] NSWCA 162 Nock v Austin(1918) 25 CLR 519;  [1918] HCA 73 Nye v Sewell(1894) 15 LR (NSW) B&P 18 O’Neill v Medical Benefits Fund of Australia Ltd(2002) 122 FCR 455;  [2002] FCAFC 188 Parfitt v Lawless(1872) LR 2 PD 462 Phillips (Deceased), Estate of; Legg v Duncan(Supreme Court (NSW), Needham J, 11 March 1987, unrep) Scott v Davis(2000) 204 CLR 333;  [2000] HCA 52 Small v K & R Fabrications (W’gong) Pty Ltd[2016] NSWCA 70 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)(1999) 73 ALJR 306;  [1999] HCA 3 Thorne v Kennedy(2017) 263 CLR 85;  [2017] HCA 49 Tobin v Ezekiel(2012) 83 NSWLR 757;  [2012] NSWCA 285 Trustee for the Salvation Army (NSW) Property Trust v Becker(2007) 14 BPR 26,867;  [2007] NSWCA 136 Winter v Crichton; Estate of Galieh(1991) 23 NSWLR 116 Woodley-Page v Simmons(1987) 217 ALR 25

TEXTS CITED

The following texts are cited in the judgments:

Australian Law Reform Commission, Elder Abuse — A National Legal Response: Final Report (ALRC Report 131, May 2017) Australian Law Reform Commission, Elder Abuse: Discussion Paper (DP 83, December 2016) Campbell J, “Estate litigation to challenge tainted dispositions” (Blue Mountains Regional Law Society, Succession Conference, 12–13 September 2020) New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Report 85, April 1998) Victorian Law Reform Commission, Succession Laws (August 2013)

APPEALS AND CROSS-APPEAL

These were appeals and a cross-appeal from orders of a judge of the Equity Division of the Supreme Court ([2023] NSWSC 509; [2023] NSWSC 694 (Henry J)) granting letters of administration of a will to a beneficiary under the will.

CJ Birch SC and JEF Brown, for the appellants in proceedings 2023/179691 and for the third and fourth respondents/third and fourth cross-respondents in proceedings 2023/188549. L Ellison SC, L Fernandez and D Yazdani, for the first respondent in proceedings 2023/179691 and for the first respondent/first cross-respondent in proceedings 2023/188549. RD Wilson SC and CP Birtles, for the second respondent in proceedings 2023/179691 and for the second respondent/cross-appellant in proceedings 2023/188549. V Bedrossian SC and M Jaireth, for the third respondent in proceedings 2023/179691 and for the appellant/second cross-respondent in proceedings 2023/188549. Judgment reserved 22 May 2024 WARD P. 1 I have had the considerable benefit of reading in advance the comprehensive reasons of Adamson JA, with whom I agree. In particular, I agree, for the reasons her Honour has given, with Adamson JA’s conclusion that the principles of undue influence differ in their application in probate from their application in equity in the context of inter vivos transactions and that the equitable principles of unconscionability do not apply in the same way to testamentary dispositions as they do to inter vivos transactions. 2 As to the challenges made to the primary judge’s acceptance of Dr Alexakis’ evidence in critical respects (namely, as to his lack of knowledge at the relevant times that he was a beneficiary named in the deceased’s wills and that there was no quid pro quo arrangement), I agree that those challenges are not made good. I would add that the primary judge’s reasons make evident that her Honour carefully considered the evidence, including that of the respective witnesses, and gave cogent reasons for her acceptance of Dr Alexakis’ evidence. The suggestion that the reasons were not prepared with a full recollection of the relevant evidence finds no basis in the primary judgment. It is telling that this court was not taken to any obvious errors or inconsistencies which might support such a suggestion. The criticism of the primary judge in this regard is not warranted, particularly given the myriad of issues thrown up on the claims before her Honour for determination. 3 Finally, I cannot accept the characterisation of the doctor–patient relationship in the present case as unconventional because of the making of hospital visits and, later, home visits to the patient. One would hope that dedicated general practitioners would not be criticised for making hospital or home visits to elderly and very ill patients for whom such visits would no doubt bring comfort and reassurance, let alone minimising inconvenience to the patient of visits to the doctor’s surgery. 4 As adverted to above, for the reasons given by Adamson JA, I agree with the orders proposed by her Honour. I also agree with the additional observations of Gleeson JA. GLEESON JA. 5 I agree with Adamson JA. I add one comment in relation to the Schwankes’ appeal (ground 5) and the Salvation Army’s cross-appeal(grounds 17 and 19). It concerns the reference by those appellants to the obiter remarks of Gaudron, Gummow and Kirby JJ in Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 at [63], which have been referred to by some commentators as “the Bridgewater hypothesis” (see Professor J Campbell, “Estate litigation to challenge tainted dispositions” (Blue Mountains Regional Law Society, Succession Conference, 12–13 September 2020)). The joint judgment said:

“[63] … In the present litigation, with respect to the dispositions made by the will, no party submitted that equity might apply or extend its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiaries or the next of kin.”

6 As Adamson JA points out at [233] these passing remarks refer to a possible argument that was not raised in Bridgewater. They do not constitute a statement of principle by the High Court, nor “seriously considered dicta” of the High Court which intermediate appellate courts and trial judges in Australia should not depart from: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134]–[135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). In any event, the factual premise underlying the grounds of appeal based on the “Bridgewater hypothesis” was not established in this case. Even assuming that the principles of undue influence in equity applied to testamentary gifts, including the presumption of undue influence for certain relationships, for the reasons given by Adamson JA, there was no error by the primary judge in finding that it had been rebutted: see [250]–[304], [316]–[317], [321]–[326] below. 7 For my part, I would express a note of caution before the temptation to take the large step of adopting the “Bridgewater hypothesis” gains momentum. It is to be recalled that the premise of this suggested development in the law is that if it is not possible for the law of probate to achieve a just result, then equitable principles should be applied or extended to achieve a just result. Aside from potential uncertainty surrounding the value-laden conclusion of what is a “just result”, my chief concern is a practical one, given the likely implications of such a development in the law in this area. 8 To allow a collateral challenge after the grant of probate to gifts under a will on the ground of undue influence is likely to promote and encourage litigation in probate matters by disappointed claimants, including speculative and nuisance litigation, at significant cost to the parties and the deceased’s estate, often disproportionate to the value of the estate. In my view, courts need to be cognisant of such implications and should give careful consideration to whether any suggested development in the law in this area is really a matter more appropriately dealt with by Parliament. ADAMSON JA. 9 The two appeals and the cross-appeal challenge orders made by Henry J (the primary judge), including an order that letters of administration of the will of Raymond McClure dated 10 July 2017 (the July will) be granted to Dr Peter Alexakis, the plaintiff in the court below and the first respondent to the appeals and cross-appeal: Alexakis v Masters (No 2) [2023] NSWSC 509.

Introduction

10 Mr McClure died on 21 November 2017, at the age of 84 years, at the Concord Centre for Palliative Care, leaving an estate worth in the order of $27 million. He had neither a spouse nor children and was estranged from his surviving brother, who makes no claim on his estate.

The July will

11 Under the July will, Mr McClure left his home at Strathfield and 90% of the residue of his estate to Dr Alexakis, his general practitioner. He left the remaining 10% of the residue to be divided between Frank Camilleri (9%) and Hildegard Schwanke (Hildegard) (1%), who were both friends of Mr McClure. There were specific devises of various chattels to Hildegard and of $10,000 to Maggie Nasr, a carer who had looked after Mr McClure in his home shortly before he died. 12 The July will was Mr McClure’s last will. His penultimate will was made about a month before on 8 June 2017 (the June will). In addition to Dr Alexakis, Mr Camilleri and Hildegard, Irmgard Schwanke (Irmgard), Hildegard’s daughter who also goes by the name of Marianne, was also a beneficiary. The June will superseded a will made the previous year on 27 May 2016 (the 2016 will). The principal beneficiary under the 2016 will was the Salvation Army (NSW) Property Trust (the Salvation Army).

The parties

13 The defendants in the court below were Mr Masters (the financial director of the Salvation Army, who will be referred to as the Salvation Army), Mr Camilleri, Hildegard and Irmgard. Each of the defendants appeals against the orders made by the primary judge. Although Mr Camilleri, Hildegard and Irmgard were appellants and the Salvation Army was a cross-appellant, they will be referred to collectively as the appellants and the appeals and cross-appeal will be referred to collectively as the appeals.

The known wills of Mr McClure

14 The wills in evidence were as follows.

Date of will	Executor	Beneficiaries	Gift
28 July 1986	Mr Camilleri and Dean Joseph Mitchelmore	Mr Camilleri	Newtown and Stanmore properties and $30,000.00
		Hildegard	250,000 Swiss francs
		Ruth Elizabeth McClure (mother)	$10,000.00
		Irmgard	$150,000.00
		Irene Aeckerle (romantic and business partner)	Residue
6 March 2007	Public Trustee of NSW	Mr Camilleri and Hildegard	All household goods and Strathfield property
		Bruce Hocking	$25,000.00
		Won Lee	$15,000.00
		Mr Camilleri	Residue
27 September 2012	The Financial Secretary of the Salvation Army	Mr Camilleri and Hildegard	All household contents and Strathfield property
		The Salvation Army (NSW) Property Trust	Residue
27 May 2016	The Financial Director of the Salvation Army (Gary Masters)	Hildegard	Household contents
		The Salvation Army (NSW) Property Trust	Residue, including assets held overseas
8 June 2017	Dr Alexakis	Dr Alexakis	65% of estate
		Mr Camilleri	25% of estate
		Hildegard	5% of estate
		Irmgard	5% of estate
Note: explicitly declines to leave anything to the Salvation Army
10 July 2017	Angelo Andresakis (solicitor)	Dr Alexakis	Strathfield property and 90% of residue
		Mr Camilleri	9% of residue
		Hildegard	3 × cabinets and all Hummel products 1% of residue
		Maggie Nasr (carer)	$10,000
Note: explicitly declines to leave anything to the Salvation Army

A summary of the respective parties’ submissions

15 It was accepted that Mr McClure had testamentary capacity to make the June will and the July will. However, Dr Alexakis’ claim for the letters of administration in respect of the July will (which was made by summons in the proceedings before the primary judge) was opposed at first instance on the basis that the gifts to Dr Alexakis under the July will and the June will were the product of undue influence (either presumed or proved), fraud or unconscionable conduct and that, accordingly, those gifts failed. 16 Dr Alexakis is a respondent to all appeals and submits that each ought be dismissed. The appellants and the outcome which each seeks are set out below.

Party	Principal will propounded for	Result contended for
Hildegard and Irmgard	June will (or, in the alternative, the July will)	Dr Alexakis holds gifts under June will on constructive trust for Hildegard, Irmgard and Mr Camilleri
Mr Camilleri	July will	Dr Alexakis holds gifts under July will on constructive trust for Hildegard, Irmgard and Mr Camilleri
Salvation Army	2016 will (on the basis that the June will and the July will are invalid for undue influence)	Salvation Army is entitled to whole estate In the alternative, if the June will or the July will stands, Dr Alexakis holds his interest on constructive trust for the Salvation Army

17 The appeals give rise to questions of legal principle and factual analysis of the evidence before the primary judge. 18 There were differences of approach between the appellants. In summary, Dr Birch SC, who appeared with Mr Brown for Hildegard and Irmgard, submitted that the decision of Powell J in Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116, which has long been accepted as correctly setting out the principles of undue influence in probate, amounted to a “wrong turn” in the law and that the correct position was as found in Callaghan v Myers (1880) 1 LR (NSW) 351. He submitted that the applicable legal principle was that a presumption of undue influence arises in probate where a testator in poor health leaves a substantial gift to their treating physician. 19 Dr Birch also argued that the substantial gift to Mr McClure’s general practitioner in circumstances where he had played a significant role in arranging for the making of the June will and the July will and knew of the contents of those wills amounted to suspicious circumstances which required Dr Alexakis to prove that Mr McClure knew and approved the contents of the will. Dr Birch submitted that Dr Alexakis had not discharged that burden of proof. He also submitted that the involvement of Angelo Andresakis, the solicitor to whom Dr Alexakis referred Mr McClure and who prepared and witnessed the June will and the July will, could not assist in discharging the onus in circumstances where Mr Andresakis did not explore with Mr McClure why he had changed his will (from the 2016 will and later from the June will to the July will) and why he was leaving such a substantial gift to his general practitioner in the June will and an even larger gift in the July will. He relied on Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [173] in which White J found that the two latest wills of the testatrix ought not be admitted to probate on each of the grounds of lack of testamentary capacity, undue influence amounting to coercion and lack of knowledge and approval by reason of suspicious circumstances. 20 Mr Bedrossian SC, who appeared with Mr Jaireth for Mr Camilleri, did not challenge the distinction between equitable undue influence and probate undue influence. However, he submitted that the case ought be decided on the basis of general equitable principles of unconscionability in respect of which hesubmitted that no sensible distinction could be drawn between inter vivos transactions and testamentary gifts. He submitted that where there is a special disability on the part of the donor (in this case the testator) and knowledge on the part of the donee (in this case Dr Alexakis) of the donor’s special disability, the presumption of unconscionability arises. In these circumstances, an evidentiary onus is cast on the donee to rebut the presumption by proving that the gift was “fair, just and reasonable”. The onus, which was described as a heavy one, could be discharged in cases where independent legal advice was given to the donor and the ramifications of the gift in the circumstances of special disability, as well as the possibility of undue influence by the donee, had been fully explained to the donor and the donor had confirmed an intention to make the gift. 21 Mr Bedrossian submitted that the onus was not discharged in the present case as the advice given by Mr Andresakis was not of a sufficient calibre to ameliorate the unconscionability inherent in a doctor taking a benefit from a patient. 22 Dr Birch and Mr Bedrossian submitted that the consequence of their appeals being upheld was that Dr Alexakis held his gift on constructive trust for the remaining beneficiaries either in the proportions set out in either the June will or the July will or in the proportions which this court considered to be just. They relied on s 42 of the Succession Act 2006 (NSW), in terms and by analogy. They accepted that the primary judge’s alternative analysis to this effect at [741] as follows was correct:

“[741] … 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.”

23 Mr Wilson SC, who appeared with Mr Birtles for the Salvation Army, largely adopted the submissions made by Dr Birch and Mr Bedrossian as to the invalidity of the gifts to Dr Alexakis. He also emphasised what he referred to as “suspicious circumstances” and submitted that the primary judge ought to have found that there was a quid pro quo arrangement between Mr McClure and Dr Alexakis that, in return for Dr Alexakis getting Mr McClure out of hospital and helping to keep him out of hospital by making regular home visits, Mr McClure would leave him something in his will (a quid pro quo arrangement), which was itself a suspicious circumstance. However, he submitted that the consequence of the failure of the gifts to Dr Alexakis was that the June will and the July will wholly failed, leaving the 2016 will as the last valid will of Mr McClure, and that Mr McClure’s estate was held on constructive trust to be distributed in accordance with the 2016 will. 24 The appellants submitted that if the presumption of undue influence or unconscionability arose in the present case, it had not been rebutted by Dr Alexakis and that the primary judge was in error in finding that it had been. They argued that the primary judge’s unchallenged findings that the legal advice provided to Mr McClure by Mr Andresakis was inadequate and that he was in a position of conflict as soon as he became aware that Mr McClure wanted to leave most of his estate to Dr Alexakis (because of his firm’s well-established and remunerative solicitor–client relationship with Tracy Alexakis, Dr Alexakis’ wife) led inexorably to the conclusion that the presumption had not been rebutted.

The facts

25 The importance of a detailed analysis of the facts in cases where undue influence or unconscionability is alleged was emphasised by the High Court (Dixon CJ, McTiernan and Kitto JJ) in the following passage in Jenyns v Public Curator (Q) (1953) 90 CLR 113 at 118–119; [1953] HCA 2:

“The jurisdiction of a court of equity to set aside a gift or other disposition of property as, actually or presumptively, resulting from undue influence, abuse of confidence or other circumstances affecting the conscience of the donee is governed by principles the application of which calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the donor. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition.”

26 What follows is a summary of the facts which bear on the creation and validity of the 2016 will, the June will and the July will with reference to the evidence and the primary judge’s findings. The facts challenged on appeal and her Honour’s conclusions will be addressed later in these reasons by reference to the grounds of appeal.

The events leading up to the June will

27 Mr McClure was born in 1933. He first met Mr Camilleri in 1970. In 1971, Hildegard and her daughters, Irmgard and Inge, migrated to Australia. For the first year after their arrival, they rented a flat in Dulwich Hill owned by Mr McClure. Hildegard struck up a friendship with Mr McClure, in part as he was able to speak a little German and, at least at first, she found speaking in English quite difficult. 28 As referred to in the table above, Mr McClure made a will on 28 July 1986, in which Mr Camilleri, Hildegard and Irmgard were beneficiaries. 29 Dr Alexakis qualified as a medical practitioner in about 1985. He commenced general practice in 1990 and opened the Strathfield Family Medical Centre in 1991. On 27 August 2005, one of his patients, Mr Debnan, made a will, which was prepared by Mr Andresakis and which named Dr Alexakis as his sole beneficiary. Dr Alexakis was not aware of this bequest until after Mr Debnan died in October 2014. Mrs Alexakis owned significant real estate in Sydney in respect of which she obtained advice and conveyancing services from Mr Andresakis’ law firm, Andresakis & Associates, of which there were two partners, Mr Andresakis and Peter Skouteris. 30 As referred to in the table above, Mr McClure made a further will on 6 March 2007, the beneficiaries of which included Hildegard and Mr Camilleri. 31 In 2012, Mr McClure rang the Salvation Army and spoke to Glen Evans, its NSW Bequest Manager, who was employed in its Public Relations and Communications Department. He invited Mr Evans to come to his home in Strathfield to discuss a bequest to the Salvation Army. In the course of the conversation, Mr McClure told him that he was very concerned about security and did not trust the neighbours (he instructed Mr Evans not to talk to them when he came). He also told Mr Evans that because he did not like people coming to the door, he locked the front gate, which made it necessary for Mr Evans to ring him on arrival. 32 When Mr Evans visited a few days after their telephone conversation, he noticed that there were two Christmas trees with lights, which Mr McClure explained made him feel as if there was someone else there, and stuffed toys, which Mr McClure said were good company. He also told Mr Evans that he lived in the United States for decades and he made his money selling condominiums in California. When he visited Australia to see his mother, who lived in a nursing home, he did not like what he saw of her living conditions and decided to return to Australia permanently. When Mr Evans asked Mr McClure about his testamentary intentions, Mr McClure said that he did not want to leave anything to his brother with whom he had lost contact when they were teenagers; his business associates were in America and around the world; and he did not really have anyone in Sydney with whom he was regularly in contact. 33 When Mr Evans admired Mr McClure’s house, he asked him whether he had help to maintain it. Mr McClure responded that a woman came from “Penrith way” to clean and cook one day a week (a reference to Hildegard) and he had a “handyman/gardener Frank” who came one or two days a week (a reference to Mr Camilleri). Of “Frank”, Mr McClure said, “I pay him but his son bleeds him dry.” 34 This was the first of about six or seven visits which Mr Evans made to Mr McClure’s home between 2012 and his retirement from the Salvation Army in 2016. 35 During another visit, Mr Evans expressed his concern about the locked gate, which would make it difficult for emergency workers to gain access to Mr McClure if he were incapacitated. Mr McClure indicated that he preferred to keep it locked. 36 Mr McClure asked Mr Evans to refer him to a solicitor about making his will. He recommended Michael Shepherd, who was on the Salvation Army panel of solicitors. On 27 September 2012, at Mr McClure’s request, Mr Evans picked him up from his home and took him to see Mr Shepherd. During the meeting, Mr Evans waited outside. Afterwards, he had lunch with Mr McClure, during which Mr McClure explained that some of his “mates got girls into trouble after the war” and that the Salvation Army “always helped, without question”. After lunch Mr Evans took Mr McClure back to Mr Shepherd’s office to execute the will, which included bequests to Hildegard and Mr Camilleri but which left his residual estate to the Salvation Army. At the end of the afternoon meeting, Mr Shepherd invited Mr Evans into his office and told him that Mr McClure had executed his will and had made a “very valuable bequest to the Salvation Army”. 37 From time to time, Mr McClure would give a cheque or traveller’s cheques to Mr Evans as donations to the Salvation Army. Mr Evans rang Mr McClure about once a month and usually offered to come and visit him. On Christmas Day, 2012, Mr McClure attended a lunch hosted by Mr Evans’ niece. About 20 members of Mr Evans’ family were present. On another occasion, in mid-2013, Mr Evans and his wife took baked dinner for three to Mr McClure’s house one evening so that they could dine together. 38 Between December 2013 and July 2014, Mr Evans tried to contact Mr McClure without success. During this period, he sent two letters to Mr McClure, enquiring about his welfare, to which he received no reply. 39 On 15 January 2014, Mr McClure first consulted Dr Alexakis. At that time, he was 80 years old and suffered from diabetes. 40 At some time between July 2014 and December 2015, Mr Evans took a break from working with the Salvation Army. He did not contact Mr McClure during this period. 41 On 18 October 2014, Mr Debnan died. On 20 May 2015, probate of his will was granted to Dr Alexakis. The estate comprised the sum of $86,380, being the balance of a single bank account.

Mr McClure’s stay in Concord Hospital in June 2015

42 On 19 June 2015, Mr McClure was admitted to Concord Hospital following a fall. He told Dr Natasha Spalding, a geriatrician who was treating him there, that he lived alone and had no close contacts. On 20 June 2015, he discharged himself against medical advice, without informing the hospital staff. When Dr Spalding telephoned him, he agreed to return that day. On his re-admission summary, he answered “NIL” when asked to identify a contact person or next of kin. On 22 June 2015, Mr McClure again discharged himself against medical advice and without informing staff. Later that day, he called Dr Spalding and told her that he did not want to be in hospital as he had some things to attend to at home, including completing his tax returns and reviewing his will. 43 On 24 June 2015, Mr Camilleri drove Mr McClure to the Concord Aged Care and Rehabilitation and Outpatients Clinic (the Clinic) at Concord Hospital where Dr Spalding was a consultant. On that occasion, Mr McClure told Dr Spalding that he wanted to change his will. In her report to Dr Alexakis (whom Mr McClure had identified as his general practitioner), Dr Spalding listed the following diagnoses: likely prostate malignancy, possible bowel malignancy, acute and chronic renal failure, diabetes, anaemia (due to iron deficiency), restless legs syndrome, left shoulder injury (post-fall) and pedal oedema. After asking Mr McClure whom he regarded as a close contact, Dr Spalding obtained Mr Camilleri’s contact details. However, Mr McClure did not permit her to speak to Mr Camilleri (although he was there). Dr Spalding reported to Dr Alexakis:

“He is focussed on getting his affairs in order for the end of the financial year currently.”

The diagnosis of bowel cancer and the consequential surgery at the Mater Hospital

44 Following tests it was established that Mr McClure had bowel cancer, for which he agreed to have surgery. Dr Spalding proposed that the surgery be carried out in the public system but she reported to Dr Alexakis on 8 July 2015 that Mr McClure preferred to pay for it to be done in a private hospital (he did not have private health insurance). The surgery was performed at the Mater Hospital on 16 July 2015 at a cost to Mr McClure of $33,000. 45 On 2 September 2015, after the surgery, Mr McClure returned to the Clinic. He told Dr Spalding that he felt that the surgeon at the Mater Hospital was trying to make as much money from him as possible and that he did not want to be taken advantage of financially. Dr Spalding also saw Mr McClure at the Clinic on 4 and 9 September 2015. The reason for the unusually high number of attendances was that he had gross swelling in his legs. Despite Dr Spalding’s advice that he be admitted to hospital, Mr McClure refused. Over the course of their interactions, Dr Spalding formed the impression that Mr McClure was a highly suspicious person, who was particularly concernedabout people exploiting him financially. This led him to be wary of medical professionals because he believed that they recommended treatment to him for their own financial gain. Dr Spalding’s impression was that he was relieved and warmed to her when she told him that she received a salary for her work and was not paid more as a consequence of treatments she gave to him or recommended to be necessary. 46 During his attendances at the Clinic, Mr McClure spoke to Dr Spalding about his concerns about the Salvation Army and, indeed, all other charities, and his desire to change his will. When considering to whom he ought leave his estate, he expressed the opinion that charities are “all as bad as each other” and that public institutions did not need his money because they get government funding. In 2016, when Dr Spalding asked him who was important to him, he identified a Russian woman, then deceased, with whom he had been in real estate in the United States. He had been the one to end the relationship. It was only after her death that he realised that she was the most important person in his life. He also told Dr Spalding in 2016 that he did not know who was best placed to receive his estate and that he did not want any of his assets to go to his brother, who was nine years older than he was and with whom he had not had any contact for 40 years. 47 In November 2015, when Dr Spalding asked Mr McClure how he was spending his time, he told her that he was share trading because, although there was little point in trying to earn more money, it was the only thing that gave him “joy”. In her oral evidence, Dr Spalding described Mr McClure as a person “who had some interpersonal difficulties and, so, needed somebody who was always going to be calm and listen to what he had to say, and just patiently work through thing[s]”. She said that he only initiated conversations with her about “things that bothered him”. When asked to explain her evidence that Mr McClure was “very abrupt and … easily offended”, she said:

“[H]e obviously felt that he should be treated with respect. There were I think misinterpretations of social cues on occasion and he was frequently unhappy with other doctors that he was referred to. So there were multiple complaints throughout the time that I knew him. So [he] easily took offence, and they could be very small things …”

48 Mr McClure also told Dr Spalding that he did not want further treatment, that he wanted to die at home and that “he wanted to live as independently and as normally as possible”. 49 Towards the end of 2015, Mr McClure raised with Mr Evans his concerns about the Salvation Army (which was the principal beneficiary of his then current will), having regard to the findings made against it by the Royal Commission into Institutional Responses to Child Sexual Abuse. Mr McClure also told Dr Spalding of his concerns. He expressed reservations about giving money to the Salvation Army. 50 On 21 December 2015, Mr Evans called Mr McClure to wish him happy Christmas and asked him what he was doing on Christmas Day. Mr McClure told him that he wanted to stay at home by himself. He also told him that he felt “very hurt and disgusted about the child abuse situation with the churches” and that he was not happy with the Salvation Army and other Christian churches. During this conversation, Mr McClure told Mr Evans that he had been in a private hospital and that he was not getting much help from health professionals and that he felt that he was a target for elder abuse because people knew that he was wealthy. 51 On 17 April 2016, Mr Evans rang Mr McClure again and arranged to visit him the following day. On 18 April 2016, Mr McClure told Mr Evans that he realised that all institutions have weaknesses and failures and he was still confident about leaving his estate to the Salvation Army. Mr McClure also told Mr Evans that various companies formed part of his estate and that he needed to show someone from the Salvation Army’s finance department how he operated the companies.

The 2016 will

52 On 27 April 2016, Mr McClure told Mr Evans that he was waiting for Ian Foulsham, solicitor (of Bull, Son & Schmidt Solicitors), whom he had retained to prepare a new will. When Mr Evans spoke to Mr McClure again on 3 May 2016, Mr McClure was still waiting for Mr Foulsham to get back to him about the will. However, during a telephone call on 9 May 2016, Mr McClure asked Mr Evans to contact Mr Foulsham and tell him that he was not in a hurry to make a new will. 53 As referred to above, Mr McClure made the 2016 will on 27 May 2016. This will removed Mr Camilleri as a beneficiary and provided that his household contents were to go to Hildegard and the balance of the estate to the Salvation Army. It provided, in cl 7, that Bull, Son & Schmidt would act for his estate in the application for probate and administration. The 2016 will was witnessed by Mr Foulsham and Linda Foulsham, teacher. On 6 June 2016, Mr Foulsham wrote to Mr McClure and enclosed a copy of his executed will. He raised three matters (in numbered paragraphs): first, the title deeds to the Strathfield home; second, the registered office of Mr McClure’s companies; and, third, guardianship. In respect of the third matter, he wrote:

“As discussed, it will be appropriate that a guardian be appointed for you, only to cover the situation where you are unable to make decisions for yourself. We are enquiring as to a possible guardian and will advise you in this regard.”

54 Mr McClure responded by letter dated 12 June 2016, enclosing a cheque for $605 in payment of the solicitor’s invoice. He wrote, in part:

“I TAKE THIS OPPORTUNITY TO WITHDRAW YOUR AUTHORITY TO ACT ON MY BEHALF IN ANY MATTER, INCLUDING THOSE DESCRIBED IN 3 PARAGRAPHS, NUMBERED, 1, 2, 3, PLUS ANY OTHER AUTHORITY YOU MAY CONSIDER YOUR [SIC] HAVE. THE 3 PARAGRAPHS ARE THOSE DESCRIBED ON PAGE ONE OF YOUR LETTER DATED 6 JUNE 2016 …”

55 Mr McClure’s condition continued to decline. He continued to attend the Clinic, where he saw Dr Spalding, and he continued to be seen by Dr Alexakis at his practice premises (Dr Alexakis did not make his first home visit to Mr McClure until 27 January 2017). 56 At some time in 2016, Mr McClure told Dr Spalding that he was considering changing his will. He said to her:

“I really don’t know what to do because I don’t want to leave my estate to The Salvation Army, but I don’t think I can leave it to another charity because they’re all as bad as each other. Public institutions don’t need it because they’re funded by the government. I don’t know who else to give it to. I don’t think there’s anyone else who could manage my assets.”

57 In late 2016, Mr McClure asked Dr Alexakis to recommend a solicitor as he wanted to change his will and he regarded his previous solicitor as “unprofessional”. Dr Alexakis suggested that he look for solicitors in the Burwood or Strathfield areas by reading advertisements in local newspapers orgoing online. He also suggested the Public Trustee. Dr Alexakis did not, at this time, refer Mr McClure to Mr Andresakis (that introduction was arranged in June 2017). 58 On 2 September 2016, Mr McClure attended the Clinic and saw Dr Spalding. He told her that he had arranged for a new will to be drafted but that he had not executed it as he was still uncertain about whether he was making the right decision; he did not trust the solicitor who had come to his home and could not leave his assets to the Salvation Army after knowing that it had permitted child sex abuse. The draft was not in evidence; nor was the identity of the solicitor who prepared it revealed by the evidence. However, the evidence indicated that it was neither Mr Foulsham, whose retainer was terminated by Mr McClure on 12 June 2016, nor Mr Andresakis. Dr Spalding also raised the possibility of an Enduring Power of Attorney. Mr McClure told her that there was no one whom he trusted. He also told her that he had once given money to a female friend who had given the money to her daughter, which Mr McClure considered inappropriate. He also mentioned “Frank” (Mr Camilleri), of whom he said, “Frank works for me but doesn’t understand my financial affairs.” He also said that Mr Camilleri’s wife was unwell and he was trying not to ask for his assistance and was not seeing him regularly. 59 On 8 September 2016, Mr Evans told Mr McClure that he was leaving the Salvation Army. Mr Evans formed the impression that Mr McClure was upset by the news that he was leaving. 60 On 12 September 2016, Mr McClure presented at Accident and Emergency at Concord Hospital suffering from constipation with faecal impaction and anal fissures (secondary to bowel cancer). From 12 to 15 September 2016 Mr McClure was an in-patient in the Aged Care Ward at Concord Hospital where he was treated for constipation and associated pain. At that time, Dr Spalding was on leave. 61 When Mr McClure failed to attend his appointment at the Clinic on 7 December 2016, Dr Spalding phoned him as she was concerned, having regard to his poor health and social isolation. He said that he needed to reschedule as he had recently undergone cataract surgery to his left eye and was due to have the right side done in January 2017.

Mr McClure’s stay at Concord Hospital in January 2017

62 Mr McClure was admitted to the Aged Care Ward of Concord Hospital on 19 January 2017 for “investigations and management” of “right sided weakness likely secondary to hypoglycaemia”. His admission followed a hypoglycaemic event, following which he called triple‐0 as he happened to be sitting next to the telephone. According to Dr Spalding’s handwritten notes of a consultation at the Clinic on 22 February 2017 (see below), it had taken the fire brigade two hours (from 7am to 9am) to break into Mr McClure’s house to respond to his call. He was discharged on 23 January 2017. In the discharge summary, which was addressed to Dr Alexakis as his treating general practitioner, the plan on discharge proposed that he follow up with his general practitioner the “day after discharge for monitoring and titration of hypoglycaemics” and that he needed regular follow-up with a diabetic specialist.

Dr Alexakis’ first home visit to Mr McClure

63 On 27 January 2017, four days after Mr McClure had been discharged from Concord Hospital, Dr Alexakis visited him at home for the first time. Hevisited him again on 3 February 2017. Dr Alexakis made no further home visits to Mr McClure until 6 July 2017 after his discharge from hospital in late June 2017. 64 On 22 February 2017, Mr McClure attended the Clinic again and saw Dr Spalding, who noticed that he was weaker and frailer than when she had last seen him in September 2016. As had occurred on other occasions, he was collected by a driver arranged by the Clinic. This service was provided for patients who could not afford taxis but Mr McClure availed himself of it because, although he could afford to pay for taxis, he did not want taxi drivers to know that he was unwell or that he needed to go to hospital. He also used two post office boxes (at Moorebank and Croydon) rather than have mail delivered to his home but complained that a taxi driver had charged him $120 to collect his mail, an expense which he told Dr Spalding was “prohibitive”. He only left the house to collect his mail, attend the Clinic and visit Dr Alexakis in his practice rooms. 65 Mr McClure also told Dr Spalding that making money was his only interest and that he was still day trading although he would occasionally make a silly mistake. He described his experience in the Aged Care Ward as “terrible” and told Dr Spalding that he hated having to share a room and a bathroom. She told him that he could be admitted to the recently renovated palliative care unit at Concord Hospital where, as a private patient, he would have his own room and an ensuite. However, he expressed a strong preference for the public system, which Dr Spalding understood to be a result of his experience with the Mater Hospital in 2015. He did not want to go into residential care and did not want anyone in his house “looking through [his] things”. 66 In her letter to Dr Alexakis reporting on the consultation on 22 February 2017, Dr Spalding described Mr McClure as being “very lucky to be alive” as he managed to call for help during the hypoglycaemic event, which she considered to be “amazing” and “incredibly fortuitous”. 67 When Mr McClure failed to attend his appointment at the Clinic on 3 May 2017, Dr Spalding again phoned him. He told her that he had visited Dr Alexakis the previous day. Mr McClure booked an appointment at the Clinic for 17 May 2017. Dr Spalding noted in the clinical notes that it may be necessary to change to home visits.

Mr McClure’s stay at Royal Prince Alfred Hospital in May–June 2017

68 On 8 May 2017, Mr McClure was admitted to Royal Prince Alfred Hospital (RPA) with abdominal distension and pain. On the morning of 16 May 2016, Mr McClure (according to the hospital clinical notes) told medical staff that he had “his own plans” and that he was “keen to go”. Although he was cleared for discharge that day, he discharged himself without notifying hospital staff and left without a discharge letter or medication. The discharge letter, which was sent to Dr Alexakis, noted that the discharge plan included that he visit Mr McClure at home on 19 May 2017. It also noted Mr McClure’s wish to stay at home for as long as possible. 69 Dr Spalding was concerned about how Mr McClure was managing at home and asked Carole Pertwee (Mr McClure’s case manager at START), a community team operated by Sydney Local Health District (SLHD) for outpatients who need assistance with the activities of daily living, to visit him. Ms Pertwee visited Mr McClure on at least one occasion but he later told Dr Spalding (in a telephone conversation on 18 May 2017) that he did not trustMs Pertwee, did not believe that she was associated with Dr Spalding or that she had sent her and did not want her to come again. He also told Dr Spalding that he did not want people coming to his house to see what he did. Also in the telephone call on 18 May 2017, Dr Spalding told Mr McClure to expect a visit from Dr Alexakis the following day (which indicates that she had already spoken to Dr Alexakis before phoning Mr McClure). At the mention of Dr Alexakis, Mr McClure told Dr Spalding of his good relationship with him. 70 On 22 May 2017, RPA hospital notes recorded that a community nurse had tried to contact Mr McClure but the phone had rung out. A visit was proposed to check on him. The following day, the notes recorded that the community nurse had visited him at home but could not gain access as the house was “locked up” and he did not answer the phone. The Nursing Unit Manager noted that she had “spoken to the GP and that he has seen the patient yesterday and is doing well”. Dr Alexakis confirmed in oral evidence (which was accepted by the primary judge) that he had spoken with Mr McClure on 22 May 2017 but had not visited him at home. 71 On 26 May 2017, Mr McClure presented at the Accident and Emergency Department of RPA and gave a history of “vomiting and decreased appetite since Monday” (22 May 2017). On his arrival, he had great difficulty getting out of the taxi. He was transferred to the Palliative Care Unit where he remained in hospital until his discharge on 26 June 2017. According to Dr Alexakis, Mr McClure rang him shortly after he was admitted and asked him to visit him, saying that he needed to “get out”. Dr Alexakis agreed to visit him but urged him to stay in hospital. Throughout the duration of his hospital stay, Mr McClure reiterated that he was “anxious to return home” and tried to elicit Dr Alexakis’ help to get out of the hospital. 72 As a consequence of these requests, Dr Alexakis visited Mr McClure in hospital five to six times a week for this period of about a month. His visits during the week were generally after he had finished his last consultation at his practice in Strathfield. He also visited on weekends. Both Dr Alexakis and Mr McClure realised that his life expectancy was short. During one of Dr Alexakis’ visits, Mr McClure offered to pay Dr Alexakis $10,000 to help him get out of hospital. Dr Alexakis refused either to help him abscond or to accept money. 73 While still an in-patient at RPA, Mr McClure told Dr Alexakis that he wanted to get his affairs in order and requested a capacity assessment to ensure that his wishes would not be successfully challenged. Dr Alexakis reminded him of their previous discussion about getting a solicitor to arrange a will. Dr Alexakis said that he knew someone who might be able to see him but that it was up to Mr McClure to interview the solicitor to see if he wanted to engage him. Dr Alexakis told Mr McClure of his connection to Mr Andresakis in the following terms:

“I can contact a solicitor I know, Mr Andresakis. Mr Andresakis is known to me at a professional level. He has prepared my parents’ Wills and my own Will, and he has done some conveyancing documents for me over the years. He has also done some work for my brothers and sisters over the years. Are you happy for me to contact him for you to interview him?”

74 When Mr McClure agreed, Dr Alexakis tried unsuccessfully to contact Mr Andresakis by phone at 7:39am and 7:40am on 30 May 2017. At 7:41am that day, Dr Alexakis sent a text message to Mr Andresakis asking him to call. He also gave his email and his wife’s email and asked that she be copied in toany correspondence (he explained that he was not good with emails). The message was returned that day by Mr Skouteris, who told Dr Alexakis that Mr Andresakis was on leave until 5 June 2017. 75 On 30 May 2017, Mr McClure saw Marnie Lennon, a social worker at RPA. She recorded in the progress notes that she had attended him for an extended interview; however, he was “very reluctant to discuss his private affairs as he believes they are private”. He was agitated because of conflict with a TV hire company. Ms Lennon recorded in the notes:

“Pt’s GP has apparently contacted a Lawyer so Pt can finalize his will. Pt stated he is awaiting this call and is not wanting assistance to organize his affairs as he has means to do this. Pt stated he has considerable means.”

76 On 31 May 2017, Mr McClure missed another appointment at the Clinic. Dr Spalding consulted the SLHD computerised records and ascertained that he was an in-patient at RPA. She phoned Dr Brian Fernandes, the Resident Medical Officer, to whom she gave details about Mr McClure, including that he had no next-of-kin but that she and Dr Alexakis both knew him well and that Dr Alexakis would be able to provide details of his recent progress. She told him that Dr Alexakis was “central to Mr McClure’s affairs”. 77 Around this time, Mr McClure separately requested a capacity assessment from Dr Alexakis. There was a factual issue as to the purpose and genesis of the capacity assessment. Both Mr McClure and Dr Alexakis spoke to RPA staff about a capacity assessment. Dr Lyn Na Lim, one of the treating doctors at RPA, recalled that Dr Alexakis had requested that he arrange a capacity assessment because Mr McClure and his ex‐business partner had shared assets and that Mr McClure wanted the assessment to protect his will from challenges, including by his ex‐business partner’s children. Dr Lim noted that her conversation with Dr Alexakis was “one of the reasons for suggesting a capacity assessment”. 78 The staff at RPA expressed interest in Dr Alexakis and the visits he was making to Mr McClure. The primary judge found, at [188]:

“[188] On 2 June 2017, during another palliative care ward consultation at around 10.23am, Mr McClure was seen by Drs Lim, Schroers and Fernandes. In response to a question from Dr Lim about his GP and whether he visits him in hospital, Mr McClure told them the following: Mr McClure had known Dr Alexakis for four to five years; they have conversations about politics and Greece, sometimes in Greek; he visits him at least once or twice during the week and on the weekends; he does not have a romantic attachment to him; he will be helping him with getting a lawyer and an accountant to assist with his financial affairs; he was capable of making his own decisions and judgements but was not as confident because of his illness; he will be meeting some people very soon and will make some judgements; he did not trust anyone except his GP; and if he was unsure about the people that came to see him he would take a step back …”

The June will

The capacity assessment

79 At about this time, Dr Alexakis spoke to Mr Andresakis and asked him if he would be prepared to visit Mr McClure at RPA for the purposes of revising his will. Mr Andresakis said that he would only visit once Mr McClure’s capacity had been positively assessed because otherwise it would be a “waste of time”. 80 On 2 June 2017, a neuropsychological assessment was carried out on Mr McClure by Nora Breen, a neuropsychologist. Her findings included:

“Raymond was able to discuss his financial situation including his Will in detail. He denied being under any outside influence regarding changing his Will. As the Will currently stands, he has beque[a]thed the majority of his money to a religious organisation but he plans to change this as he has been shocked by the revelations in recent years of abuse of children that has occurred within that religious organisation. He was able to clearly state why he wanted to change his Will in this regard and was able to state the pros and cons of his decision. He was able to explain how he would go about changing the Will in regard to contacting the lawyer who had made the latest edition of his Will.”

81 Once Dr Alexakis learned from Mr McClure that he understood that he had passed the neuropsychological assessment, he told Mr Andresakis. On 5 June 2017, on the basis of this conversation, but before he had spoken with Mr McClure, Mr Andresakis opened a file and prepared a costs agreement. 82 The phone records indicate that on 6 June 2017 the following calls were made:

Time	Caller	Recipient	Duration
7:44am	Dr Alexakis	Mr Andresakis	6 minutes, 29 seconds
12:55pm	Mrs Alexakis	Mr Skouteris	4 minutes
12:59pm	Mrs Alexakis	Mr Skouteris	3 minutes

83 Although Dr Alexakis could not recall the conversation at 7:44am, he said that the call was to make arrangements for the trip to the hospital that evening. He said that, in other circumstances, he would have just given Mr Andresakis the prospective client’s contact details but that this was not the way Mr McClure liked to do things. 84 Mr Skouteris, whose evidence the primary judge accepted, could not recall what he discussed with Mrs Alexakis on 6 June 2017 or whether he had any ongoing matters with her at that time. He did not know that Mr McClure was making the June will. Mrs Alexakis was not called to give evidence. The primary judge rejected the submission that a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference (that Mrs Alexakis’ evidence would not have assisted her case) ought be drawn from Dr Alexakis’ failure to call her to give evidence about her conversation with Mr Skouteris because he did ongoing work for her, her family and two related companies and he was unaware of Mr Andresakis’ involvement with Mr McClure at that time.

Challenge to the primary judge not being satisfied of the existence of a quid pro quo arrangement (Salvation Army ground 2)

304 In addition to the matters referred to above as supporting the quid pro quo arrangement, Mr Wilson relied on Mr McClure’s reference to the Count of Monte Cristo by Alexandre Dumas and submitted that the analogy was with the mad priest in that novel who was proposing to use his fortune to buy his way off the island where he was imprisoned. He submitted that by using the analogy, Mr McClure was, in effect, saying that he was buying his way out of imprisonment. It is difficult to accept that a man like Mr McClure would have likened himself with anyone other than the Count of Monte Cristo himself. However, the analogy works if Mr McClure was simply comparing himself with the count, who was imprisoned on an island, in circumstances in which Mr McClure felt imprisoned in RPA. I do not regard this analogy, which in any event was not understood by Dr Alexakis, as weighing in favour of proof of a quid pro quo arrangement.

Challenge to the primary judge’s finding regarding suspicious circumstances (Salvation Army grounds 3–7)

305 Mr Wilson submitted that, having regard to the suspicious circumstances associated with the creation of the June will and the July will, the primary judge erred in finding that Dr Alexakis had established that Mr McClure knew, approved and understood the contents of the June will and the July will. He submitted that the primary judge was in error in finding at [495] (summarised above) that the suspicious circumstances did not fall into the “most extreme category”. 306 Comparisons with “most extreme” case are generally apt in the context of personal injury litigation where there is a statutory limit on damages for non-economic loss (the limit being reserved for those cases which fall within the most extreme case: see, for example, s 16 of the Civil Liability Act 2002 (NSW)) or sentencing where the maximum penalty is reserved for those offences falling within the most serious examples of the offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ). In the present context, it is difficult to seethe utility of such comparison, except as a rhetorical device. The basis of the submission that it fell into an extreme category was that it was a significant gift to a doctor (Dr Alexakis) who had played a part in introducing the solicitor (Mr Andresakis) to the testator (Mr McClure) and, on the basis of facts contended for by Mr Wilson but not found by the primary judge, conveying instructions from Mr McClure to Mr Andresakis. 307 Mr Wilson submitted that, because the case fell into an extreme category, a “very heavy” onus was cast on Dr Alexakis to establish that Mr McClure knew and understood the terms and legal effect of the will and that this onus was not discharged because Mr Andresakis had failed to disclose the potential conflict and had failed to explore with Mr McClure the effect of the will and interrogate him about why he wanted to leave such a substantial gift to Dr Alexakis. 308 As the June will and the July will were duly executed and testamentary capacity was accepted, the principles in (3) and (4) of my summary of Tobin v Ezekiel above are relevant to the determination of the Salvation Army’s grounds 3–7. 309 In this context, Mr Wilson relied on the following as amounting to suspicious circumstances:

• (1)

  Dr Alexakis was actively involved in arranging the making of the June will and the July will and introducing and communicating instructions to Mr Andresakis in circumstances where Dr Alexakis knew that he was a substantial beneficiary;

• (2)

  the quid pro quo arrangement between Dr Alexakis and Mr McClure (which was also relied on as establishing undue influence); and

• (3)

  Mr Andresakis’ position of conflict and his failure to explore with Mr McClure his reasons for making such a sizable bequest to Dr Alexakis in circumstances where there was a power imbalance between Dr Alexakis and Mr McClure, who was vulnerable and suffering from ill-health, and therefore particularly susceptible to influence.

310 The active involvement in (1) and the quid pro quo arrangement in (2) (both of which depended on facts which were not established) have been addressed in the context of the challenges set out above. 311 As to (3), Mr Wilson submitted that the following constituted suspicious circumstances: first, Mr Andresakis was prepared to act for Mr McClure after he was instructed that Mr McClure wanted to leave a substantial gift to Dr Alexakis because he put himself in a position of conflict; and, second, that he failed to explore with Mr McClure the reason for the gift. 312 Whatever the utility of the classification of “most extreme category” in this context, I consider that the primary judge was correct to determine that the present case did not fall into that category, for the reasons her Honour gave: that Dr Alexakis was not present when Mr McClure gave instructions to Mr Andresakis or when the wills were executed; that Mr McClure was the source of the instructions; and that Dr Alexakis was not involved in their preparation, drafting or execution, other than for arranging the meetings. One only has to compare the present case with Callaghan v Myers to appreciate that it does not fall into the same category. 313 It is apparent from [612] of the primary judge’s reasons that her Honour did not actually find that Mr Andresakis was in a position of conflict arising from Dr Alexakis, his wife and her family being clients of his firm (although herHonour found there to be “force” in the submission). What her Honour found, at [613], was that Mr Andresakis’ engagement with Mr McClure was not such as to act as a “complete mitigant” against undue influence or unconscionable conduct, if either be established. 314 In cross-examination, Mr Andresakis denied that he was aware in June or July 2017 that when Dr Alexakis referred him to a patient and the patient gave him instructions to leave a gift to his doctor, there “may be a conflict in that occurring”. He also denied charging Mr McClure less because he was “doing it for a friend [Dr Alexakis]”. 315 As referred to above, there was no suggestion that Mr Andresakis was himself gaining any benefit from drafting Mr McClure’s wills other than his standard fee or that he was party to any agreement with Dr Alexakis whereby he would benefit from the gift left to Dr Alexakis. Although it would have been more prudent for Mr Andresakis to cease to act for Mr McClure when he learned that Dr Alexakis would be a major beneficiary under the June will, I consider that the primary judge was correct to find that the evidence did not call into question Mr McClure’s knowledge and understanding of the June will or the July will or his appreciation of their contents and legal effect. For these reasons none of grounds 3–7 has been made out.

Alleged errors relating to the primary judge’s failure to be satisfied of undue influence (Salvation Army grounds 8–13)

316 Mr Wilson submitted that the primary judge ought to have found that the June will and the July will were affected by Dr Alexakis’ undue influence over Mr McClure. He submitted that Mr McClure’s vulnerability, which included fear of captivity in RPA where he regarded himself as a “prisoner” who was desperate to escape and fear of having to return to hospital when he was at home, coupled with Dr Alexakis’ superior ability to resolve Mr McClure’s concerns about remaining in hospital and provide him with sufficient care at home to prevent his imminent return to hospital, and Dr Alexakis’ active involvement in the creation of the June will and the July will, established undue influence. 317 For the reasons given above, including those which address Dr Birch’s submissions that undue influence ought to have been found, none of grounds 8–13 has been made out.

Alleged errors in failing to find fraud (Salvation Army grounds 14–15)

318 Mr Wilson submitted that Dr Alexakis was guilty of “probate fraud” when he introduced Mr McClure to Mr Andresakis, who was a member of a firm which had already drafted a will in which another of Dr Alexakis’ patients (Mr Debnan) had left him his whole estate. Mr Wilson accepted that this submission would fail if the court were not satisfied that Dr Alexakis knew of the contents of the June will or the July will. However, he submitted that the court would infer that Dr Alexakis knew of the contents of the July will because he delivered the McClure document and would also (by some unidentified path of reasoning) have known of the June will. 319 I am not satisfied that the primary judge erred in not being persuaded that Dr Alexakis knew of the contents of either the June will or the July will. In these circumstances, no error in the primary judge’s decision not to find fraud has been established. 320 Mr Wilson also submitted that, when recommending Mr Andresakis to Mr McClure, Dr Alexakis ought to have disclosed to Mr McClure that Mr Andresakis had drafted a will of a former patient, who had left him his entire estate. I reject this argument. Indeed, such a disclosure may have left Dr Alexakis open to the accusation that he had implicitly suggested that Mr McClure leave his estate, or part of it, to Dr Alexakis, which would have been improper having regard to the relationship of doctor and patient.

Challenges to the alternative finding that if the presumption of undue influence applied, it had been rebutted (Schwanke ground 5, Salvation Army grounds 16 and 18)

Schwanke ground 5

321 Dr Birch challenged the primary judge’s alternative finding that if the presumption of undue influence applied, it had been rebutted. He submitted that her Honour’s finding that it was not possible to say “with certainty” what the reasons were for the change from the June will to the July will (see [654] reproduced above) was fatal to the suggestion that the presumption had been rebutted. He also submitted that the primary judge’s reference to Mr McClure’s power of revocation was irrelevant to the rebuttal of the presumption, particularly in circumstances where Mr McClure had told Mr Myhill that he wanted to change his will but had not been able to effect that change before he died because he was unable to find a solicitor who was acceptable to him. 322 The primary judge’s reasons need to be read fairly and as a whole: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA; McColl and Simpson JJA agreeing), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456. Her Honour’s use of the words “with certainty” are telling. The effect of what the primary judge was saying in [654] is that, although it could not with certainty be known (because Mr McClure was dead and could not tell us), there were various reasons to indicate why he changed the terms of the June will and made the July will. In substance, the primary judge considered that Mr McClure had to leave his estate to someone (since he did not want to leave anything to his brother); it was a large estate; he had a very limited circle of friends or contacts; and he appears to have respected and trusted Dr Alexakis. 323 Further, Mr McClure considered that Mr Camilleri’s son had been “bleeding him dry”, which meant that a gift to Mr Camilleri would be likely to benefit his son, a consequence which was distasteful to Mr McClure, who had been disappointed when he gave a woman (not identified in the evidence) some money which she then gave to her daughter. Although he was fond of Hildegard and Mr Camilleri, he used them to perform services around the house and paid them for those services. He did not seem to regard either as capable of understanding his companies, managing his estate or being able to deal with the receipt of substantial funds (which may have jeopardised any pension either was receiving). By contrast, he respected Dr Alexakis as a professional man and regarded him as financially astute and able to understand company structures and safeguard the wealth Mr McClure had accumulated. Because of Mr McClure’s disappointment with the Salvation Army (which resulted not only from the child sexual abuse but also the departure of Mr Evans), his view that all charities were the same and his belief that thegovernment should fund charitable activities, all charitable institutions (which would have been able to manage such a large estate) were disqualified as beneficiaries. Once they were disqualified, Mr McClure had few, if any, other candidates for the role of major beneficiary under his will apart from Dr Alexakis. Thus, although the primary judge correctly appreciated that one could not know with certainty, the evidence referred to above served to explain the change from the June will to the July will. 324 It was telling that the appellants’ case theories, which were formulated around the June will, had difficulty in accommodating the July will. Their case regarding the June will was that the gift of 65% of the residue of the estate was Mr McClure’s quid pro quo for Dr Alexakis’ help in getting him out of RPA and keeping him out of hospital by visiting him at home. Having regard to the size of the estate, there would appear to be no particular reason for a further 25% uplift to be required for Dr Alexakis to make home visits after the making of the July will. In any event, the case theories were largely dependent on Dr Alexakis entering into the quid pro quo arrangement and knowing of the contents of the June will and the July will, neither of which was established.

Salvation Army grounds 16 and 18

325 Mr Wilson also challenged the finding that if the presumption of undue influence applied it had been rebutted. He submitted that, contrary to the primary judge’s finding at [711], the gifts to Dr Alexakis under the June will and the July will did not represent Mr McClure’s free, independent, informed and voluntary acts. As he submitted in other contexts (as referred to above), Mr Wilson argued that the absence of independent legal advice and the power imbalance which characterised Mr McClure’s relationship with Dr Alexakis ought to have persuaded the primary judge that the presumption of undue influence (if it applied) had not been rebutted. 326 For the reasons given above, I am not persuaded that there was any error in the primary judge’s alternative finding. There was ample evidence that Mr McClure knew and understood what he was doing and was not subject to undue influence by Dr Alexakis, whom, as the primary judge found, did not know at the relevant times that he was a beneficiary of either the June will or the July will and was not party to any quid pro quo arrangement with Mr McClure.

Challenge to the primary judge’s alternative finding about the consequences of proof of undue influence (Salvation Army grounds 17 and 19)

327 At [741], the primary judge found that the consequences of a finding of undue influence would be that the gift to Dr Alexakis under the July will would be held on constructive trust for the other beneficiaries under that will (Hildegard and Mr Camilleri). This finding was challenged by the Salvation Army. Having regard to my view of the grounds of appeal against the orders made by the primary judge in the principal judgment, it is not necessary to address this challenge. Nor is it necessary to address the effect of s 42 of the Succession Act.

Challenge to the costs order made by the primary judge that the appellants pay their own costs (Schwanke ground 9, Salvation Army ground 20)

328 The appellants challenged the costs order made by the primary judge that they ought pay their own costs of the proceedings at first instance. Theysubmitted that they fell squarely within each of the two exceptions identified by the authorities referred to by the primary judge, including Nock v Austin (1918) 25 CLR 519 at 525 (Barton and Gavan Duffy JJ) and 528 (Isaacs J); [1918] HCA 73. The appellants also submitted that the circumstances of the will meant that it was important to establish whether the substantial gift by a patient to a general practitioner was properly made and that the primary judge’s refusal to allow the appellants’ costs indicated that her Honour’s discretion miscarried. 329 I accept the appellants’ submissions on costs. While the evidence which emerged at trial was insufficient, as the primary judge correctly found, to establish undue influence and, indeed, was sufficient to rebut any presumption of undue influence, the prima facie case for undue influence appeared to be strong. The present was a case such as was referred to in Estate of Hacke; Public Trustee v Wilson (Supreme Court (NSW), Powell J, 13 November 1985, unrep) at 3:

“Although the authorities in which an unsuccessful defendant has been allowed his costs out of the estate have involved a variety of factual situations, they appear to embrace such situations as the following:

…

4. the actions and statements of the testator immediately before, and subsequent to, the making of the will have given the defendant reasonable grounds for believing that the execution of the will had been induced by undue influence (Cousins v Tubb (1891) 65 LT (NS) 716; Shortman v Shortman (1892) LT (NS) 717);

…”

330 Further, the primary judge took into account in exercising the costs discretion under s 98 of the Civil Procedure Act 2005 (NSW) that the appellants each had a financial interest in the proceedings, as if that were a disqualifying consideration. However, financial interest is, in this context, a prerequisite for standing in such proceedings and therefore cannot be a relevant consideration on the question of costs. The primary judge also took into account the apparent unfairness to Dr Alexakis, as the successful party, in requiring him to bear the lion’s share of the costs of the unsuccessful parties because such costs would have to come out of the residuary estate of which he is a 90% beneficiary. 331 For these reasons, I consider that the primary judge’s discretion miscarried. The appropriate order for the costs of the proceedings in the court below is that the costs of the appellants (the defendants in the court below) be paid out of the estate.

Proper constitution of the proceedings

332 I note for completeness that the appellants informed the court that, whatever the outcome of the appeal, Ms Nasr would receive her gift of $10,000 from the estate. I understood that this course was taken to ensure that it would not be necessary to join her as a party since the parties’ agreement meant that she did not have an interest in the result of the proceedings. 333 Before this court reserved its decision, the Presiding Judge informed the parties that the court considered that the proceedings were not properly constituted as Mr McClure’s next-of-kin (his brother, if he was still alive, or his brother’s descendants if he had predeceased Mr McClure) had not been joined as a party and had an interest as an intestacy could, at least potentially,be created if the gift to Dr Alexakis were found to have failed. Mr Wilson accepted that Mr McClure’s next-of-kin was a necessary party to the proceedings. 334 The court directed Dr Alexakis, as the grantee of letters of administration, to take all reasonable steps to contact Mr McClure’s brother or next-of-kin and file and serve an affidavit by 1 May 2024 setting out the results of such searches. Dr Alexakis filed an affidavit of Kristin Fulcher, the solicitor with carriage of the matter on behalf of Dr Alexakis, sworn 15 May 2024. She deposed to her searches which reveal that the deceased’s late brother, Herbert McClure, had two children, Julie Kennelly and Roger McClure. Ms Kennelly is Herbert McClure’s legal personal representative. 335 While Mr McClure’s next-of-kin had an interest in the July will and the June will being set aside for undue influence, this interest was amply propounded and protected by all of the parties apart from Dr Alexakis, whose interest was to uphold the July will (and if not that will, the June will). The interest of Mr McClure’s next-of-kin would only be different from that of the appellants if the court found that the July will or the June will was impugned by undue influence or otherwise. 336 Because the appeals have not been made out, the question of what would happen if the gift to Dr Alexakis under the July will failed has become moot. In these circumstances, it is not necessary to join the late Herbert McClure’s legal personal representative or next-of-kin to the proceedings since they have no entitlement in circumstances where the July will has not been successfully impugned and, accordingly, operates in accordance with its terms.

Costs

337 Mr Wilson submitted that if the Salvation Army was unsuccessful on the appeal generally but successful on the costs issue, the appropriate order for costs in the court below was that the Salvation Army’s costs be paid out of the estate and the appropriate order for costs in this court was that his client pay its own costs of the appeal. His submissions as to costs were adopted by Dr Birch and Mr Bedrossian.

Proposed orders

338 For the reasons given above, I propose the following orders:

• (1)

  Allow the appeals and the cross-appeal on costs.

• (2)

  Otherwise dismiss the appeals and the cross-appeal.

• (3)

  Set aside order (2) made by Henry J on 23 June 2023 and, in lieu thereof, order that the defendants’ costs on the ordinary basis be paid out of the estate of the late Raymond John McClure (deceased) from the gift of the residue and remainder under clause 2(D) of the deceased’s will dated 10 July 2017.

• (4)

  Order the appellants and the cross-appellant to pay the first respondent’s costs of the appeal.

So ordered

Solicitors for the appellants in proceedings 2023/179691 and for the third and fourth respondents/third and fourth cross-respondents in proceedings 2023/188549: Turner Freeman Lawyers. Solicitors for the first respondent in proceedings 2023/179691 and for the first respondent/first cross-respondent in proceedings 2023/188549: Teece Hodgson & Ward. Solicitors for the second respondent in proceedings 2023/179691 and for the second respondent/cross-appellant in proceedings 2023/188549: Makinson d’Apice Lawyers. Solicitors for the third respondent in proceedings 2023/179691 and for the appellant/second cross-respondent in proceedings 2023/188549: Crumpton Lawyers. JG WHERRETT BARRISTER