Alexakis v Masters (No 2)

1. [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. [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. [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. [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. [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. [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. [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

1. [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.

2. [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.

3. [10]

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

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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.

14. [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.

15. [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.

16. [23]

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

17. [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

1. [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.

2. [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].

3. [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].

4. [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).

5. [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]):

6. [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].

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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).

13. [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.

14. [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.

15. [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).

16. [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.

17. [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”.

18. [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.

19. [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.

20. [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).

21. [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).

22. [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.

23. [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.

24. [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).

25. [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.

26. [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.

27. [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.

28. [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.

29. [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.

30. [54]

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

31. [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.

32. [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).

33. [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.

34. [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.

35. [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).

36. [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.

37. [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]).

38. [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: National Australia Bank Limited v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242 at [138].

39. [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.

40. [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.

41. [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.

42. [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.

43. [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.

44. [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.

45. [69]

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

46. [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).

47. [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.

48. [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.

49. [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.

50. [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.

51. [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.

52. [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.

53. [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.

54. [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.

55. [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.

56. [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.

57. [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.

58. [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.

59. [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.

60. [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.

61. [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.

62. [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

1. [87]

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

2. [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.

3. [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.

4. [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.

5. [91]

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

6. [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.

7. [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.

8. [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.

9. [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.

10. [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]).

11. [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.

12. [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.

13. [99]

    Mr McClure made six wills between 1986 and July 2017.

14. [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.

15. [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.

16. [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”.

17. [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.

18. [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]).

19. [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.

20. [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.

21. [107]

    Under the 2016 Will, Mr McClure:

22. [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.

23. [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).

24. [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.

25. [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:

26. [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.

27. [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.

28. [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:

29. [115]

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

30. [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).

31. [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.

32. [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).

33. [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.

34. [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).

35. [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.

36. [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).

37. [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).

38. [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).

39. [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]).

40. [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):

41. [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).

42. [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.

43. [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”.

44. [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.

45. [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.

46. [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.

47. [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.

48. [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.

49. [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]).

50. [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”.

51. [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”.

52. [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).

53. [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).

54. [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.

55. [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.

56. [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).

57. [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:

58. [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]).

59. [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).

60. [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.

61. [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).

62. [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]).

63. [149]

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

64. [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.

65. [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.

66. [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.

67. [153]

    Following Mr McClure’s hospital admission for hypoglycaemia, Dr Alexakis conducted two home visits to Mr McClure on 27 January and 3 February 2017 (T32.39–40, which corrected his affidavit evidence that referred to home visits on 27 and 28 January 2017).

68. [154]

    On 6 February 2017, a social worker spoke with Mr McClure to check that a home care package had been set up and was told that Mr McClure was about to commence receiving domestic assistance, including shower supervision, from Wesley Mission (MTB696).

69. [155]

    On 22 February 2017, Mr McClure attended an appointment with Dr Spalding at the Concord Clinic. At that appointment, Mr McClure told Dr Spalding the following: he did not want mail delivered to his home because of privacy concerns; he did not like taking taxis to appointments at the Concord Clinic because he did not want the drivers to know he was unwell; he disliked being in all hospitals but preferred public hospitals to private ones; he did not wish to go into residential care under any circumstances; and, during a discussion about the possibility of private care at home, he did not want anyone in his home (Spalding at [62]–[68]).

70. [156]

    On 2 May 2017, Mr McClure cancelled an appointment with Dr Spalding scheduled for 3 May 2017. Dr Spalding called Mr McClure about the cancellation, who told her that he had been to see Dr Alexakis the previous day. According to the SFMC Patient Report, Dr Alexakis had a surgery consultation with Mr McClure on 2 May 2017.

71. [157]

    After her call with Mr McClure, Dr Spalding called Ms Pertwee from the START team and requested that she visit Mr McClure at home as she was concerned about his self-management.

72. [158]

    On 8 May 2017, Mr McClure presented at the RPAH with abdominal distention and pain and was admitted under the care of Dr Austin Kirk for colorectal surgery in connection with advanced colorectal cancer. That day, Mr McClure informed Dr Lim that he did not want to undergo surgery (Lim at [6]).

73. [159]

    On 12 May 2017, Dr Lim attended on Mr McClure and observed that he appeared stable and ready to go home (Lim at [7]).

74. [160]

    On 16 May 2017, Mr McClure left the RPAH without notifying any hospital staff and did not take any discharge notes or medications with him. Mr McClure’s discharge report is addressed to Dr Alexakis and states that if Mr McClure presented with a bowel obstruction again he would be re-admitted under the palliative care team and, in the section headed “Discharge Plan”, that Dr Alexakis would visit Mr McClure at home on 19 May 2017 (MTB899–906).

75. [161]

    On 16 May 2017 at 4.49pm, Mr McClure made a call to the SFMC that lasted 78 seconds (CTB164–5, item 271). Dr Alexakis did not have a specific recollection of that call and presumed that Mr McClure called to say that he was at home (T156.42–3).

76. [162]

    On 18 May 2017, Dr Spalding called Dr Alexakis who told her that he would visit Mr McClure at home the following day (Spalding at [72]). She then called Mr McClure at home. He told her that he did not trust Ms Pertwee who had visited him, he was not aware that Dr Alexakis was going to visit tomorrow and also spoke of his “good relationship” with Dr Alexakis.

77. [163]

    The SFMC Patient Report records that Dr Alexakis had surgery consultations with Mr McClure on 19 and 22 May 2017, with the notes in relation to the latter consultation referring to Dr Alexakis having “called patient at home”.

78. [164]

    In cross-examination, Dr Alexakis was asked about his answer to a question at the Medical Council hearing on 24 November 2017 regarding entries in the SFMC records relating to 22 May 2017 that referred to Mr McClure being “seen at home”. Dr Alexakis agreed that it was totally false to suggest to the Medical Council that he saw Mr McClure at home on 22 May 2017, maintained that he did not see him that day and explained that he may have misheard but the suggestion that he saw Mr McClure at home on 22 May 2017 was wrong (T108.1–28). Based on the contents of the SFMC Patient Report, the SFMC statement of accounts rendered for Mr McClure (which describes Mr McClure’s attendance as “surgery” rather than “home visit”; Exhibit I) and the contents of the Concord Hospital report (referred to at [166] below), I accept Dr Alexakis’ evidence that he did not see Mr McClure at home on 22 May 2017 but consulted with him over the telephone and I am satisfied with Dr Alexakis’ explanation for the inconsistency with his evidence before the Medical Council.

79. [165]

    On 22 May 2017, Mr McClure refused assistance from the START team (T427.28–40).

80. [166]

    On 23 May 2017, the community nursing team from Concord Hospital reported that Mr McClure was a “no show”. Dr Alexakis was contacted and said that he had spoken with Mr McClure several times that week including the previous day (MTB931).

81. [167]

    Sometime in May 2017, Mrs H Schwanke had a conversation with Mr McClure during which she told him that Ms M Schwanke and her partner were experiencing financial difficulties (H Schwanke at [24]).

82. [168]

    On 26 May 2017, Mr McClure presented to the RPAH with a bowel obstruction, severe abdominal distention, pain, nausea and vomiting. He was re-admitted under the palliative care team within the care of Dr Lim, Dr Jade Schroers, a palliative care registrar, and Dr Anna Lawless, a resident medical officer (Lim at [9]), who planned to manage him conservatively as he was opposed to undergoing surgery. Soon after Mr McClure’s admission, Dr Fernandes took over from Dr Lawless (Lim at [10]).

83. [169]

    On 29 May 2017, Drs Lim, Schroers and Fernandes attended on Mr McClure who told them that he did not want to go to a nursing home but wanted to spend his days at home to the very end (Lim at [11]).

84. [170]

    Dr Alexakis gives evidence that, around the time Mr McClure was admitted to the RPAH, Mr McClure called Dr Alexakis and requested that he visit him and said, “I need to get out”. Dr Alexakis agreed to visit and told Mr McClure to “stay there”, by which Dr Alexakis intended to convey that he wanted Mr McClure to stay in hospital.

85. [171]

    Dr Alexakis said that Mr McClure was distressed and anxious about being in hospital again and wanted to return home. He said that Mr McClure did not want to die in hospital or receive unnecessary investigation and was insistent that Dr Alexakis help him abscond, which he refused to do.

86. [172]

    Dr Alexakis deposed that he visited Mr McClure five to six times a week while Mr McClure was in the RPAH, at Mr McClure’s request, usually after the SFMC business hours and on weekends, and that the time he spent with him would vary, referring to 20 and 40 minutes (Alexakis at [64]; T67.30; T108.37–44, T110.12). He said that after his admission to the RPAH, Mr McClure understood that his prognosis was short, he should prioritise his comfort and maintain his quality of life.

87. [173]

    Dr Alexakis deposed to a conversation with Mr McClure during one of his visits in which Mr McClure said that Dr Alexakis needed to help him and he could “sneak out via the lift”. Dr Alexakis told Mr McClure that he could not go home as he was still unwell, he could look at going back home with services and support when his condition improved, and he could not leave against medical advice. Mr McClure then said “I can pay you. I can give you $10,000 if you help me” and Dr Alexakis replied by saying, “I will not take any money from you and I will not help you abscond” (Alexakis at [65]).

88. [174]

    Dr Alexakis deposed that during one of his visits, Mr McClure said he wanted a solicitor to visit him in hospital to tidy up his affairs as soon as possible and also wanted his capacity assessed so that his wishes were not challenged in future. Dr Alexakis said that Mr McClure told him he needed someone urgently as he was concerned that his health may deteriorate before he could get his affairs in order. Dr Alexakis said that he referred Mr McClure to their previous discussion (described at [144] above), said to Mr McClure that he should have made the arrangements already and then told Mr McClure that he knew a solicitor who may be able to see Mr McClure but it was up to Mr McClure to interview the solicitor to see if he wanted to engage him.

89. [175]

    Dr Alexakis said that, after Mr McClure repeated his request for Dr Alexakis to arrange an introduction to a solicitor he had a conversation with Mr McClure as follows:

90. [176]

    Mr Andresakis is a partner of Andresakis & Associates. He graduated from the University of Sydney with a Bachelor of Laws in 1980 and has worked as a solicitor since 1981. He has a general practice which includes wills and estates work although his focus is on commercial matters. Mr Andresakis has known and acted for Dr Alexakis for approximately 30 years. In addition to Andresakis & Associates having acted for Dr Alexakis, Dr Alexakis’ wife, extended members of their respective families and related corporate entities have also been clients of the firm over the years. Dr Alexakis and Mr Andresakis both gave evidence, which I accept, that they did not have a social affiliation or personal relationship with each other (T145.9; T216.14).

91. [177]

    On the morning of 30 May 2017, Dr Alexakis made two calls to Mr Andresakis’ mobile phone at 7.39 and 7.40am (CSTB286). At 7.41am, he sent a text message asking Mr Andresakis to call him back (CSTB288). The responses to Dr Alexakis’ messages to Mr Andresakis appear to have been from Mr Skouteris, who called Dr Alexakis from his mobile phone at 8.40am and 4.00pm that day (Exhibit 3, p 32). It seems that Mr Andresakis was “off” work at this time and was not due back until 5 June 2017 (see the Andresakis & Associates diary at CSTB282 and CSTB289).

92. [178]

    On 30 May 2017 at around 12.40pm, Mr McClure saw Ms Marnie Lennon, a social worker at the RPAH. Ms Lennon’s progress note records that Mr McClure’s GP had apparently contacted a lawyer so that Mr McClure could finalise his will and Mr McClure was awaiting this call and did not want assistance to organise his affairs as he had the means to do this (CB1120). It also records that: Mr McClure was very reluctant to discuss his private affairs; he described himself as a “loner” and estranged from his older brother; he was in an agitated state following conflict with a TV hire company; he was a self-funded retiree who lived alone in his home in Strathfield; he did not want to discuss possible future situations; and he had cancelled his services because he was told “he was dying” and did not expect to return home.

93. [179]

    On 31 May 2017, Dr Spalding called Dr Fernandes after learning that Mr McClure had been admitted to the RPAH. She informed him that Mr McClure was particularly concerned about pain at the end of his life, had no next of kin and that Mr McClure's GP was “central to Mr McClure’s affairs”. Dr Spalding also offered to have Mr McClure transferred to Concord Hospital under her care (Spalding at [75]; Fernandes at [11]).

94. [180]

    On 31 May 2017 at around 12.54pm, Drs Lim, Schroers and Fernandes attended on Mr McClure. Dr Lim directed that Mr McClure undergo a MMSE and capacity assessment (Fernandes at [14]). The progress notes of that attendance record that Mr McClure’s condition had improved and that an MMSE and capacity assessment were to be completed (CB854). Dr Lim’s direction followed a request by Dr Alexakis for a capacity assessment to be conducted on Mr McClure.

95. [181]

    Dr Alexakis said that at around the time of his conversation with Mr McClure about Mr Andresakis, Mr McClure made an independent request for Dr Alexakis to have him assessed and said “they are going to think I am crazy and not in the right mind and I do not want my wishes to be challenged in the future”, volunteered that he had an ex-business partner who died 17 years ago and said he was concerned that her children or relatives would challenge his estate as they had issues with company matters and governance (Alexakis at [76]).

96. [182]

    Dr Alexakis called Dr Lim in the first week of Mr McClure’s admission during which Dr Alexakis requested that Dr Lim arrange to have Mr McClure’s decision-making capacity assessed. According to Dr Lim, Dr Alexakis made the request as “Raymond’s partner had died and they have shared assets. Her relatives are trying to claim the assets including his share”. Dr Lim agreed to arrange the test (Lim at [13]–[15]).

97. [183]

    In cross-examination, Dr Alexakis accepted that he asked Dr Lim to arrange the test but said that he did not use the words attributed to him by Dr Lim. He said that he told Dr Lim that Mr McClure had requested a capacity test as he had an ex-business partner who died 17 years earlier, he was concerned that her living relatives may challenge the estate and he wanted his capacity assessed against future challenge (T50.24–30). He also gave evidence that Mr McClure asked him to arrange a test as Mr McClure wanted legal advice, to make changes to his will and to ensure that his decision-making was not in question (T99.27–30).

98. [184]

    On 1 June 2017, Dr Charles Betts, a trainee specialist, and Dr Agnes Chan, a neuropsychologist, each conducted a mental health assessment of Mr McClure. Dr Betts’ medical note of that assessment records the following (CB855–7): Mr McClure does not have a significant mental health history and does not exhibit features of mental illness; his mood is low in the context of his physical health but without suggesting depressive illness; he is suspicious of home services but does not demonstrate psychotic features; his behaviour is intermittently cooperative; he is assertive in conversation; he redirects the conversation if not comfortable with the subject content; he exhibits paranoia, although this could be contextually appropriate, and has no delusional thoughts; he scored 24/30 on a cognition test with all points lost on recall; his thought form is logical; and his judgement appears intact and appropriate. Dr Betts concludes that he is unable to determine testamentary capacity based on his assessment and that Mr McClure will require neurocognitive testing prior to a formal testamentary assessment via his legal representation.

99. [185]

    Dr Chan’s medical note of the assessment is to similar effect, concluding that she was unable to assess Mr McClure’s testamentary capacity fully in the absence of collateral information verifying his financial position (CB858). It also records the following: Mr McClure appeared calm and accepting of his terminal illness; he viewed that his task was to put his finances in order before he passed away; he has vascular risk factors that may be contributing to a degree of cognitive decline; he is suspicious of others wishing to steal from him; he is working on putting his financial affairs in order with the help of “his GP” who is finding an accountant for him; he is unable to manage his finances online in hospital due to his lack of a laptop; and he described two people who identified themselves as nurses who have tried to “steal” from him in the past. Dr Chan’s note records that the question of how well Mr McClure managed his finances prior to his hospital admission needs to be asked, there was no evidence from her conversation with him that suggested undue influence by Dr Alexakis and she suggested that Mr McClure undergo formal neuropsychological testing and engage a lawyer as soon as possible who could also assess his testamentary capacity.

100. [186]

     On 1 June 2017, Dr Fernandes requested a neuropsychology consult for formal neurocognitive testing and testamentary assessment. Dr Fernandes’ progress note records the following (CB891):

101. [187]

     On 2 June 2017, during a palliative care ward consultation at around 9.42am, Mr McClure was seen by Drs Schroers and Fernandes. According to the progress note prepared by Dr Fernandes, Mr McClure informed them that: Dr Alexakis had visited the previous night and had been doing this regularly as part of his schedule; Dr Alexakis had organised for Mr McClure to see an “accountant (Angelo)” who was returning to Australia from New York to help organise his financial affairs; Mr McClure wanted to amend his existing will; and, although he did not have a lawyer, he declined assistance to find a lawyer as he wanted to “make an assessment on the character of the lawyer, and make the decision on his own accord” (Fernandes at [16]; CB892; T438.43–5).

102. [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 (Lim at [20]–[21]; Fernandes at [20]; CB859; T357.38–359.8).

103. [189]

     On 2 June 2017, Ms Nora Breen, a clinical neuropsychologist, completed a neuropsychology assessment of Mr McClure at his bedside. The report prepared that day records the following (MTB1039–40):

104. [190]

     It is not clear on the evidence when Dr Alexakis first spoke to Mr Andresakis about Mr McClure. I find it likely that they spoke on or just prior to 2 June 2017 based on Mr Andresakis being “off” work for a period, the content of the notes referred to at [189] and the email set out at [193].

105. [191]

     According to Dr Alexakis, in his initial discussion with Mr Andresakis, he asked whether Mr Andresakis would see a patient in hospital regarding their business affairs and revising a will. Mr Andresakis said he could and queried whether the patient had capacity to which Dr Alexakis responded that he believed so. Dr Alexakis said that Mr Andresakis asked him to arrange a formal assessment to be carried out prior to any assistance commencing and he told Mr Andresakis that the patient had already asked him about that.

106. [192]

     Mr Andresakis gave evidence that Dr Alexakis said he had a patient in hospital “harassing [him] for [his] solicitor’s details so that he can do a new will and put his companies’ affairs in order” and asked Mr Andresakis to meet with him (Andresakis 2 at [7]; T210.24–7).

107. [193]

     On 2 June 2017 at 1.24pm, Mr Andresakis sent an email to Dr Alexakis, which was copied to Mrs Alexakis, that states (CSTB342):

108. [194]

     Attached to Mr Andresakis’ email is a document headed “Will Making Capacity” that outlines the process and requirements for a capacity test administered by an expert medical practitioner.

109. [195]

     In cross-examination, Mr Andresakis explained that it was his usual practice to provide a copy of this document when there was a possibility of capacity being in issue and he sent it in an abundance of caution as Dr Alexakis had indicated that Mr Andresakis would be seeing a patient in hospital. He described it as a “back up” in case there was a problem with the testator, having not yet seen him. He accepted that the issue of capacity was raised in his discussions with Dr Alexakis but said that the document was not sent in response to a request from Dr Alexakis (T204.2–11; T211.40–212.1; T213.1–4).

110. [196]

     Dr Alexakis gave evidence that he did not read Mr Andresakis’ 2 June email, explaining that he was not good with emails. He said that he called Mr Andresakis on 3 June 2017 after speaking to Mr McClure on 2 June 2017, who told Dr Alexakis that “he had had the psychs come and see him and that he passed with flying colours” and to call Angelo, and that he did not see a copy of the assessment (T55.9–10; T56.35–50; Alexakis at [81]). On 3 June 2017 at 5.47pm, there was a call between Mr Andresakis and Dr Alexakis for 1 minute (Exhibit 3, p 17).

111. [197]

     On 5 June 2017, Andresakis & Associates opened a will file for Mr McClure (Guy 3 at [26]). On or about that day, a Costs Disclosure and Costs Agreement (Costs Agreement) for Mr McClure was prepared by Andresakis & Associates that described the scope of work as “you have instructed us to prepare your will”, professional fees being charged on a fixed fee basis in the amount of $350 plus GST ($385) and that the partner responsible was Mr Andresakis. I am satisfied that the will file was opened and the Costs Agreement was prepared based on discussions Mr Andresakis had with Dr Alexakis and before he spoke to Mr McClure.

112. [198]

     On 6 June 2017 at 7.44am, Dr Alexakis called Mr Andresakis and they spoke for 6 minutes and 29 seconds.

113. [199]

     Dr Alexakis could not recall the specifics of the conversation and gave evidence that the call was to coordinate an appropriate time for Mr Andresakis to meet with Dr Alexakis to fulfil Mr McClure's request that Dr Alexakis go with Mr Andresakis when he attended on Mr McClure at the RPAH. Dr Alexakis said: “I would have, under normal circumstances, just told Angelo that that's [Mr McClure’s] phone number, ring up and coordinate with him. That was not Mr McClure's wish” (T57.5–9; T57.32–58.46).

114. [200]

     On the evening of 6 June 2017, Mr Andresakis met Dr Alexakis at the SFMC and they drove to the RPAH together. Dr Alexakis said they had a conversation about their families and a brief discussion about Mr McClure during which he told Mr Andresakis that “Mr McClure wants to revise his Will, and also talk about his companies” (Alexakis at [85]–[86]).

115. [201]

     In cross-examination, Dr Alexakis said that he told Mr Andresakis that Mr McClure wanted to get his affairs in order and update his will, he did not recall mentioning the Salvation Army at all and that Mr McClure had not mentioned the Salvation Army to him since late the previous year (T111.21-32; T149.20-42). He also denied telling Mr Andresakis that Mr McClure proposed to make a will leaving provision in his favour, denied discussing with Mr McClure what provision was to be made in his favour and denied talking about percentages as opposed to dollar figures or having such a conversation with Mr McClure (T60.10–23; T60.29–32).

116. [202]

     In cross-examination, Mr Andresakis did not accept that Dr Alexakis told him that Mr McClure proposed to make a will leaving some provision for Dr Alexakis and did not recall that Dr Alexakis told him that Mr McClure wanted to change his will and delete his former gift in favour of the Salvation Army. He disagreed that Dr Alexakis had given him Mr McClure’s prior wills and that it was important for him to know about Mr McClure’s prior wills before meeting with Mr McClure (T213.6–9; T213.40; T214.32–9).

117. [203]

     Mr Andresakis gave evidence, which I accept, that he was only aware that “Mr McClure wished to make a will and also to have some help in relation to his financial matters and companies, that apparently he was a bit concerned that – I think since he hasn’t been well, that he’s sort of taken his eye off the ball” (T215.22–5) and that he had “no hint at all on the morning of the 6th, or on the drive out to the hospitals, from Dr Alexakis, that… [Mr McClure] was contemplating some provision in his favour” (T222.44–223.1).

118. [204]

     When they arrived at the RPAH, Dr Alexakis introduced Mr Andresakis to Mr McClure before leaving the hospital room and departing from the RPAH (Alexakis at [87]–[88]).

119. [205]

     After Dr Alexakis left, Mr McClure had a discussion with Mr Andresakis about preparing a new will and signed the Costs Agreement that Mr Andresakis had brought with him. Mr Andresakis gave evidence, which I accept, that the only things he took with him to the meeting were the Costs Agreement and some blue paper on which to write a file note (T200.32–44; T213.34–5).

120. [206]

     During his attendance on Mr McClure, Mr Andresakis prepared a handwritten file note, which is three pages long (CB155). He later had a secretary prepare a typed transcription of his file note which states the following (CB159–60):

121. [207]

     During the meeting, handwritten notes were made on the back of the Costs Agreement as follows:

122. [208]

     Mr Andresakis wrote the names of the beneficiaries and the first column of percentages; Mr McClure wrote the percentages in the second column which Mr McClure then crossed out; and Mr McClure wrote the percentages in the third column to the far right (T200.7–28). The percentages in the third column reflect the “break up” percentages referred to in Mr Andresakis’ file note.

123. [209]

     The process by which Mr Andresakis came to write 10% next to Dr Alexakis’ name is not addressed by Mr Andresakis’ file note or in his affidavit evidence.

124. [210]

     In cross-examination, Mr Andresakis could not recall an initial discussion about the components of the division of the estate as shown in the first column (at [207] above; T216.4). He gave evidence that: he did not nominate any percentages for Mr McClure; he was asked by Mr McClure to write down the names that he was considering as beneficiaries, Mr McClure then made an assessment as to percentages and told Mr Andresakis to write the numbers down and Mr McClure then asked for the “piece of paper… studied it and then started writing on the paper”; Mr McClure was not talking but was writing the figures and providing him with instructions; Mr McClure said “these are the percentages”; and Mr McClure’s instructions (as referred to in Mr Andresakis’ file note) were consistent with the numbers Mr McClure wrote in the final column (T217.15–218.29).

125. [211]

     Mr Andresakis gave the following evidence about the nominated percentages:

126. [212]

     In cross-examination, Mr Andresakis said that Mr McClure talked about his assets and companies, referred to a house and some companies with shares and stated that the companies had been operating for some time. He could not recall whether he asked Mr McClure for the “break up” of his $15 million estate or the value of Mr McClure’s assets or superannuation. When asked why he did not seek instructions as to the value of Mr McClure’s assets, he explained that Mr McClure was giving instructions as percentages as opposed to giving specific assets to specific people (T222.3–23).

127. [213]

     On 6 June at 8.16pm, Mr Andresakis called Dr Alexakis and they spoke for eight minutes (Exhibit 3, p 17; T215.44).

128. [214]

     In cross-examination, Mr Andresakis did not recall calling Dr Alexakis after he finished his meeting on 6 June 2017 with Mr McClure or discussing with Dr Alexakis the elements of that meeting. He gave evidence that the call was likely nothing other than a chat thanking Dr Alexakis for referring a patient and he presumed he told Dr Alexakis that he had formed the view that Mr McClure had capacity to make a will after speaking to him. Mr Andresakis said “[n]o, I don’t”, when asked if he recalled telling Dr Alexakis that Mr McClure was proposing to make provision for him (T215.39–216.26).

129. [215]

     When Dr Alexakis was asked whether he spoke to Mr Andresakis after he was with him and Mr McClure at the hospital on 6 June 2017, Dr Alexakis said that there were some telephone conversations but he could not recall what they were about (T166.5–167.1).

130. [216]

     On 7 June 2017, two calls were made by Mr Andresakis to Dr Alexakis at 8.37am (for 5 minutes) and at 2.25pm (for 3 minutes) (Exhibit 3, p 18). Mr Andresakis and Dr Alexakis did not recall what the calls were about (T57.32–59.6; T65.19–66.19; T223.28–37).

131. [217]

     Based on Mr Andresakis’ evidence that he had no way of contacting Mr McClure when he was in hospital and had not arranged a further meeting when he saw Mr McClure on 6 June (T223.46–7; T226.7–20), I find it likely that during the calls on 7 June, Dr Alexakis arranged a meeting for Mr Andresakis to attend on Mr McClure on 8 June at 1.00pm. I also find it likely that Dr Alexakis spoke to Mr McClure to arrange the time of the meeting and that Dr Alexakis was likely aware from discussions with Mr McClure and Mr Andresakis that the 8 June meeting related to Mr McClure updating his will.

132. [218]

     On 8 June 2017, Mr Andresakis and Ms Narayan met with Mr McClure at the RPAH for Mr McClure to execute the June Will which had been created by Mrs Guy the previous day (Guy 3 at [32]–[39]).

133. [219]

     Mr Andresakis prepared a handwritten file note of his attendance on Mr McClure on 8 June 2017 and had a secretary prepare a typed transcription of that note which states the following (CB162):

134. [220]

     In cross-examination, Mr Andresakis gave evidence that it was his usual practice to read a will aloud to a testator before it was executed but that he did not do so in this case as Mr McClure wanted to read it using his magnifying glass (T227.24–31). He accepted that he did not explain the will to Mr McClure on 8 June 2017, such as by saying the percentage shares applied to the whole of his estate, including his home, private companies and cash, and said that Mr McClure had already given him instructions as to the percentages and distributions of his estate. Mr Andresakis rejected that there was any element of uncertainty in his mind in respect of Mr McClure’s testamentary intentions when the June Will was signed (T229.15–27).

135. [221]

     Mr Andresakis could not recall why the words “SHARES COMPANIES?” were included on his file note and suggested that they related to the five companies listed in Mr McClure’s handwriting as opposed to Mr McClure’s holding of shares in public companies (T227.20–1).

136. [222]

     Ms Narayan gave oral evidence that Mr Andresakis gave the June Will to Mr McClure; Mr McClure read it to himself, not aloud; Mr Andresakis then explained the will to Mr McClure and got him to sign it; she and Mr Andresakis witnessed the will; and they left the RPAH (T175.37–40). Ms Narayan did not recall the substance of discussions concerning the gifts in the June Will and said she did not pay much attention to what was said during the meeting (T178.11–6; T178.41–50).

137. [223]

     The June Will was signed by Mr McClure and witnessed by Mr Andresakis and Ms Narayan at the meeting of 8 June (Andresakis 2 at [13]; Narayan at [4]).

138. [224]

     In response to questions put in cross-examination as to why clause 4 was included in addition to the usual revocation clause, Mr Andresakis gave evidence that at the meeting on 6 June 2017 Mr McClure had told him he had made a previous will to the Salvation Army and wanted to include the words in clause 4 as that was the reason he was changing his will. Mr Andresakis said that the inclusion of clause 4 was at Mr McClure’s suggestion (T262.5–30).

139. [225]

     The June Will includes Mr Camilleri’s address next to his name at clause 2B. Mr Andresakis accepted that the address was not included in his file notes and could not recall where he got Mr Camilleri’s address from or if it was Dr Alexakis who gave him the address (T229.7–13). When asked about this matter in cross-examination, Dr Alexakis said he did not convey Mr Camilleri’s address to Mr Andresakis as he did not know where Mr Camilleri lived. He gave evidence that when Mr Camilleri came to the surgery with Mr McClure, he was not allowed to engage with Mr Camilleri as Mr McClure had forbid it (T56.16–25). I note that the SFMC new patient form completed by Mr McClure does not include an address for Mr Camilleri. Nor do the other SFMC records in evidence.

140. [226]

     On 8 June 2017 at 4.44pm, Dr Alexakis called Mr Andresakis for 42 seconds (CSTB286).

141. [227]

     When asked about the phone call in cross-examination, Dr Alexakis said he could not recall the telephone conversation and did not know that Mr McClure had signed a will that day (T65.34–T66.7).

142. [228]

     Mr Andresakis gave evidence that he did not refer to the 8 June call in his affidavit as he did not recall it. His recollection was that Mr McClure might have made a complaint to Dr Alexakis that Mr Andresakis did not stay at the hospital long enough to talk to him and this was the likely topic of conversation. He rejected telling Dr Alexakis that he had just been to see Mr McClure who had signed a will that had made provision for Dr Alexakis (T230.2–5; T230.12–29; T230.39–231.36) and gave evidence that he did not tell Dr Alexakis that Mr McClure had made provision for him in his will (T230.20–9).

143. [229]

     On 8 June 2017, Dr Fernandes overheard part of the meeting between Mr McClure and Mr Andresakis while he was consulting with another patient in the next bed. He said that he heard the following: Mr McClure and a male person discussing Mr McClure’s will, the beneficiaries and the executor of the will; Mr McClure stating “make Alexakis the executor” (which he recognised as Dr Alexakis, Mr McClure’s GP) and “yes, 66% to Alexakis” in confirmation of something that the male person said; and Mr McClure naming some other people and percentages which Dr Fernandes could not recall.

144. [230]

     After his consultation with the other patient finished, Dr Fernandes introduced himself to the people present with Mr McClure (a male and a female) and asked the man if he was part of Mr McClure’s family. Dr Fernandes said the man introduced himself as “Angelo” but did not further specify who he was. Dr Fernandes then discussed a medical issue with Mr McClure having obtained his consent to do so in front of the others. He described Mr McClure as oriented, alert and able to respond appropriately to his questions (Fernandes at [27]–[31]).

145. [231]

     After his consultation with Mr McClure, Dr Fernandes prepared a progress note which records that: Dr Fernandes “overheard patient conversation whilst in another bay”; the conversation concerned the patient changing his will with the assistance of visitors to allocate new beneficiaries; and the man named “Angelo” said he was not the patient’s relative but did not specify who he was. An addendum by Dr Fernandes states that the “patient has had neuropsych assessment and has testamentary capacity” (MTB1105).

146. [232]

     Dr Fernandes was cross-examined about his evidence that he overheard Mr McClure saying “66% to Alexakis”, which was not referred to in his clinical note from the same attendance. Dr Fernandes maintained that Mr McClure said “66%”. He accepted that he did not hear everything that Mr McClure said and could not remember what the percentages were other than that the “66% to Alexakis” and the other shares added to 100% (T434.41; T436.12–50).

147. [233]

     Based on the terms of the June Will, Mr Andresakis’ evidence and Dr Fernandes’ oral evidence (particularly at T434.28–41), I consider that Mr Fernandes may have been mistaken and he likely overheard a reference to 65%, with the other percentages being consistent with those set out in the June Will and adding to 100%.

148. [234]

     In cross-examination, Mr Andresakis did not recall meeting Dr Fernandes or any other doctor from the RPAH during his meeting with Mr McClure on 8 June 2017 (T177.49). Ms Narayan also could not recall a doctor coming into the private area and asking Mr Andresakis who he was (T177.47–178.6).

149. [235]

     Dr Fernandes had concerns about the conversation he overhead and reported the matter to Dr Schroers. A progress note prepared by Dr Schroers on the morning of 9 June 2017 records the following: there was a discussion that was overheard during which Mr McClure referred to previously giving his money to a religious organisation and he now planned to give 66% to his GP and to make his GP the executor; his GP is visiting regularly in the evening and has organised the accountant; the most recent overheard conversation has raised the doctors’ suspicion of potential unethical behaviour on the part of the GP which had already been flagged by the psychiatry team during Mr McClure’s admission; after discussions with Dr Lim, a decision was made for consultation with Dr Wroth who has experience regarding issues of financial vulnerability with the elderly; Drs Wroth and Lim plan to interview the patient; and in the meantime nursing staff are to document Mr McClure’s visitors (which I note that they did from 9 June) (CB862).

150. [236]

     On 9 June 2017, Dr Alexakis called Dr Lim and enquired about Mr McClure’s progress (Lim at [26]; CB865). Dr Lim asked how long he had known Mr McClure to which Dr Alexakis responded:

151. [237]

     In cross-examination, Dr Alexakis disagreed that he told Dr Lim that when Mr McClure became less mobile he started visiting him at home every week (T41.50) and he said that Dr Lim got it wrong in her affidavit (T42.5).

152. [238]

     Dr Alexakis visited Mr McClure on 9 June 2017 from around 7.00 to 8.15pm, on 10 June 2017 from around 3.30 to 3.35pm, and on 11 June 2017 from around 10.30 to 10.55am (Lim at [25]; CB863–4).

153. [239]

     On 12 June 2017, Dr Spalding visited Mr McClure at the RPAH on which occasion Mr McClure told her that he wanted to leave the hospital as soon as possible, he was opposed to being discharged to a nursing home and he did not wish to be transferred to Concord Hospital as his current ward was “less depressing”. They also discussed the possibility of private care at his home. Dr Spalding describes Mr McClure as appearing anxious about something involving Dr Alexakis that occurred at the RPAH and that he told her that he could not say too much as he had “gotten Dr Alexakis in trouble”, everyone was listening and he felt bad about it and needed to fix it (Spalding at [76]–[78]).

154. [240]

     In cross-examination, Dr Spalding explained that her visit arose from a feeling of obligation because she had diagnosed Mr McClure’s malignancy, believed he was very alone in the world and wanted him to know that somebody cared for him in the last part of his life (T428.41–429.4).

155. [241]

     On 12 June, Dr Alexakis visited Mr McClure at 7.45pm (Lim at [25]; CB863–4).

156. [242]

     On 13 June 2017 at around 8.48am, Dr Fernandes attended on Mr McClure as part of his palliative care ward rounds with Dr Cameron Gofton and others. During that attendance, the concept of discharge planning and services was raised by the doctors and rejected by Mr McClure as he believed he could handle himself although he said he would like a program to assist with cleaning (Fernandes at [32]–[33]; CB902).

157. [243]

     On 13 June 2017, Dr Spalding spoke with one of Mr McClure’s male doctors at the RPAH (whose name she could not recall) and informed him that she had visited Mr McClure and discussed trialling private care at home instead of nursing home care. Dr Spalding said that the doctor asked her how well she knew Dr Alexakis and she told him that they shared several patients and she had had a handful of conversations with him regarding Mr McClure (Spalding at [80]).

158. [244]

     In the afternoon of 13 June 2017, from around 3.00 to 4.00pm, a palliative care review of Mr McClure was conducted by Dr Wroth in the presence of Drs Fernandes and Lim (CB867; CB904). Dr Wroth introduced herself to Mr McClure and told him that she was there to interview him about the circumstances relating to the making of his will and his relationship with his GP, and proceeded to ask him questions about his background, his GP and other matters.

159. [245]

     Dr Fernandes prepared a progress note during the consultation which records that Dr Wroth explained to Mr McClure that she was a geriatrician, the team had requested that she meet Mr McClure and their discussion covered a range of topics under the following headings and including the following notes:

160. [246]

     Dr Wroth deposed that during their discussions Mr McClure told her about his financial portfolio, which he thought was worth $13 or $14 million and included the Strathfield Home, and about his previous wills that left the bulk of his estate to the Salvation Army (Wroth at [20]–[21]). She gives evidence that she asked Mr McClure about the will he had made in hospital and why he decided to change it and deposed to the following conversation (Wroth at [21]):

161. [247]

     Dr Wroth also deposed that Mr McClure told her that under his new will the majority was to go to Dr Alexakis and that some monetary bequests had been made to two friends from his past, referring to Frank and a housekeeper and her daughter. She said that Mr McClure could not recall exactly what amount each beneficiary would get, he did not have a copy of the will and he did not know where it was stored or who was to pay for it being drawn up (Wroth at [22]).

162. [248]

     Dr Lim deposed that Mr McClure told Dr Wroth that he had given 20% of his estate to his “friend Frank” and 20% to his “tenant” but did not say to whom he had given the remainder of his estate and, when asked whether Dr Alexakis was in his will, he said, “it’s my choice” and refused to answer the question (Lim at [35]–[37]). In cross-examination, Dr Lim gave evidence that Mr McClure initially refused to voluntarily disclose the beneficiaries under his will that he had made in hospital but then changed his mind and said he had left 20% to the tenant and the tenant’s daughter and 20% to Frank but withheld who the fourth beneficiary was (T350.10–5; T350.39–40). Dr Lim also said that she did not remember anyone pressing him on that matter, accepted that the effect of her evidence is that Mr McClure never said in her presence that he had made Dr Alexakis a beneficiary and also explained that asking Mr McClure about what was in his will started from the neuropsych assessment as the neuropsychologist was concerned about the daily visits from the GP who was assisting Mr McClure to get an accountant and a lawyer (T350.19; T353.46; T354.1–8).

163. [249]

     In cross-examination, Dr Fernandes accepted that Mr McClure made it clear that he wanted to make a will that did not include the Salvation Army, Mr McClure would not disclose whether he had bequeathed anything to his GP and Mr McClure did not believe that there was any conflict or that Dr Alexakis had done anything wrong (T444.16–47).

164. [250]

     The defendants rely on Dr Wroth’s account of her conversation with Mr McClure (at [246]–[247] above) as evidence that Dr Alexakis: discussed the contents of the June Will with Mr McClure; suggested that Mr McClure remove the Salvation Army as a beneficiary; knew he was a beneficiary under the June Will; and was involved in and suggested the instructions in relation to the June Will. These are matters which Dr Alexakis denies.

165. [251]

     Shortly after the consultation, at around 4.05pm, Mr McClure attempted to leave the RPAH and a “Code Black” was called, being an event in which a patient is significantly agitated or at risk of harm to themselves or others (Fernandes at [39]–[41]). Mr McClure was upset about the conversation with Drs Wroth and Lim and his treatment by the nursing staff who were “rough” with his legs. He was offered a single room and agreed to return to the ward (Fernandes at [41]; Alexakis at [73]; T445.46–446.11).

166. [252]

     Dr Fernandes accepted that the session with Drs Wroth and Lim on 13 June 2017 had clearly upset Mr McClure and that Mr McClure wanted to get “out of the place” and gave evidence that he turned Mr McClure around and brought him back (T445.46–446.11).

167. [253]

     Dr Lim deposed that Mr McClure’s behaviour changed after this incident. She described him as erratic, aggravated in her presence and in the presence of other hospital staff, and that he had expressed that he wanted to go home (Lim at [43]).

168. [254]

     According to a progress note prepared at 8.18pm by a registered nurse, Julia Farley, Mr McClure expressed his wish to “just die”, stated “it is the only way out” and expressed concerns that he was being kept in hospital as a prisoner and had been promised meal upgrades (MTB1155).

169. [255]

     On 13 June 2017 at around 8.45pm, Dr Alexakis visited Mr McClure (Lim at [25]; CB863–4). According to Ms Farley’s progress notes, during his visit, Dr Alexakis mentioned that Mr McClure was wanting a television but did not have his credit cards or wallet with him, said that Mr McClure was now feeling isolated in his room and he was concerned about his mood. The notes also record that later that evening Mr McClure told Ms Farley that he believed his wallet and keys were missing, they had been stolen during the Code Black incident by hospital staff and he would report it to Channel Seven and Nine News when he left the hospital (MTB1155–6).

170. [256]

     In the afternoon of 14 June 2017, Dr Alexakis called Dr Lim and enquired about Mr McClure’s progress (CB870). Dr Lim’s note of that call records that Dr Alexakis told her that he visited Mr McClure the previous night who was upset with the “situation” there, referring to his belongings having been stolen, issues with television arrangements, feeling isolated in his room and security being called. Dr Lim told Dr Alexakis that Mr McClure tried to leave against medical advice and it was unsafe for him to do so. Dr Alexakis said that Mr McClure needed to go home to sort out his finances as it was close to the end of the financial year and suggested that Mr McClure be granted “gate leave” with accompanying hospital staff so that he could go home to sort out his finances and then return to the hospital. Dr Lim rejected this as she did not consider him medically fit to leave hospital and because home services had not yet been organised.

171. [257]

     In cross-examination, Dr Alexakis explained that he asked Dr Lim about getting gate leave at Mr McClure’s request (T68.31–3).

172. [258]

     Dr Alexakis visited Mr McClure on 14 June 2017, at a time not recorded (Lim at [25]; CB863–4).

173. [259]

     On 16 June 2017, Dr Alexakis contacted Dr Spalding and said that Mr McClure was very unhappy in the RPAH and wanted to leave. Dr Spalding referred to her previous offer to accept transfer of Mr McClure to Concord Hospital which Mr McClure refused. In response to Dr Alexakis saying that Mr McClure should be transferred to Concord Hospital as he hates being in the RPAH and “needs to get out of there”, Dr Spalding said that Mr McClure was capable of expressing his wishes to the RPAH team but she would be happy to be contacted by the palliative care team at the RPAH if Mr McClure changed his mind about being transferred to Concord Hospital (Spalding at [81]).

174. [260]

     On Sunday, 18 June 2017, Dr Alexakis visited Mr McClure at the RPAH at a time not recorded (Lim at [25]; CB863–4). Based on Dr Alexakis’ evidence that he worked on Sunday mornings at the SFMC, I find it likely that Dr Alexakis visited Mr McClure at the RPAH in the early afternoon.

175. [261]

     That day, Dr Alexakis called Dr Spalding’s mobile phone twice: once in the late afternoon and once in the evening. He left one voicemail message stating that he wanted to talk to her about Mr McClure and that “I think it would be better for him to move to Concord”. Dr Spalding blocked Dr Alexakis’ number as she considered it inappropriate for him to call her as she was not Mr McClure’s primary treating physician, they had previously discussed the issue and there was no urgency as Mr McClure was in a safe place (Spalding at [82]).

176. [262]

     In cross-examination, Dr Alexakis explained that he made the calls to Dr Spalding as he was relaying Mr McClure’s wishes (T69.38–43).

177. [263]

     On 19 June 2017, Dr Spalding called Dr Lim and told her about Dr Alexakis’ message the previous day suggesting that Mr McClure be transferred to Concord Hospital under Dr Spalding’s care. Dr Lim subsequently asked Mr McClure whether he wished to be transferred to Concord Hospital for the discharge planning process to which Mr McClure responded by asking why he would go to Concord Hospital before going home, stating “this is the best hospital that I have been in in my life” and indicating that he was receptive to engaging private services at home (Lim at [47]–[48]).

178. [264]

     On 19 June 2017, Mr McClure signed a consent for a MAC assessment but did not sign the approval form. The Aged Care and Rehabilitation case note records that Mr McClure felt that his care needs would be better met by private services, although he did not have private providers in mind, and that his biggest concern was getting his finances in order, which he could do independently (MTB1227). Later that day, Nicole Homewood, a social worker, attended on Mr McClure to discuss a carer through private services. Ms Homewood’s progress note records that Mr McClure was having a “very bad day” and did not want to speak to the social worker or receive information regarding services (MTB1234).

179. [265]

     On 20 June 2017, Mr McClure told Dr Fernandes that he needed to get home to lodge his tax returns and attend to other accounting matters and that Concord Hospital could help him get home because it could arrange for at-home care services (Fernandes at [50]).

180. [266]

     Later that day, Mr McClure met with Ms Homewood. According to her progress note, Mr McClure told her that he wanted to go home as he had work to do, he wanted access to 24/7 full-time care through private services (which he thought he could get through Concord Hospital), he did not want public services through “SW” referrals and he planned to source “Meals on Wheels” when he went home which his GP would assist him with, although not that day as the GP was not visiting that day.

181. [267]

     On 21 June 2017, Mr McClure told Dr Fernandes that he believed that Concord Hospital needed to be involved to organise care services at his Strathfield Home and also said, several times, “I am never going to go home” (Fernandes at [51]–[52]).

182. [268]

     That day at 3.05pm, Mrs Alexakis made a call to Mr Andresakis that lasted 11 minutes. Mr Andresakis did not give evidence about this call and was not asked about it in cross-examination. Dr Alexakis did not know anything about the call (T83.25–35). He gave evidence, which I accept, that he does not make, and cannot recall making, any phone calls from his wife’s mobile phone in 2017 and that it was not in his possession (T112.27–113.2).

183. [269]

     Later that day at around 4.00pm, Dr Alexakis called Dr Lim and asked her why Mr McClure’s discharge planning was taking so long. Dr Alexakis said to Mr Lim that Mr McClure should be sent home to 24-hour nursing care stating, “he can afford it”, and that Concord Hospital would provide “that kind of arrangement”. According to Dr Lim’s evidence, Dr Alexakis used an aggravated and angry tone during this call. She also deposed that she had not had a GP contact her multiple times or give her directions regarding discharge arrangements for a patient while they are an in-patient in hospital (CB916; Lim at [49]–[50]).

184. [270]

     In cross-examination, Dr Lim accepted that there was nothing exceptional about Dr Alexakis calling her and enquiring about Mr McClure’s progress and accepted that such conduct was part of the relationship between a hospital and a GP where a patient is discharged from hospital into the care of a GP who has to take over the patient’s day-to-day management. Dr Lim also said that she did not usually get calls from a GP in the middle of an admission and described it as “more on the uncommon side” for GPs to keep in contact about the ongoing care of a patient in hospital (T361.5–22).

185. [271]

     At around 5.54pm on 21 June, Dr Alexakis visited Mr McClure at the RPAH (Lim at [25]; CB863–4).

186. [272]

     On 22 June 2017, at around 10.40am, Drs Lim, Schroers and Fernandes attended on Mr McClure. The affidavit evidence of Drs Lim and Fernandes and the progress note prepared by Dr Fernandes record that Mr McClure said he believed he was being held at the hospital against his will, “they” were pretending to cure him to keep him there and the hospital wanted to destroy him despite the doctors’ reassurance to the contrary, and that Dr Lim emphasised that the team did not want to keep him in hospital and that he could go home after services were organised (Fernandes at [54]; Lim at [51]).

187. [273]

     On 22 June 2017 at 4.06pm, Dr Alexakis sent a text message to Dr Lim regarding Mr McClure which led to the following exchange of text messages (Exhibit 2):

188. [274]

     In cross-examination, Dr Alexakis denied that he understood Mr McClure’s reference to the Count of Monte Cristo or that Mr McClure elaborated on it at all (T71.10–20; T72.18–22).

189. [275]

     On 22 June 2017, Dr Alexakis visited Mr McClure from around 8 to 8.45pm (Lim at [25]; CB863–4).

190. [276]

     On 23 June 2017, Mr McClure told Dr Lim that Dr Alexakis had helped him fill out forms for private assistance at home and “Meals on Wheels” (Lim at [52]). A progress note prepared by Ms Homewood that day records that Mr McClure told her that he received a call from his chosen service provider who was going to come and see him on “26/6 post D/C”, he was pleased to be going home and his GP would continue to provide support as “he does many home visits” (MTB1304).

191. [277]

     The evidence discloses that Mr McClure had forms for services to be provided by “Your Choice HomeCare” (Your Choice), a private agency, and that Dr Alexakis completed a section headed “Medical Information” which was on page four of the five page “Client Assessment Form” (MTB1276). I infer that Dr Alexakis completed this section during his visit to Mr McClure on 22 June. I pause to observe that the completed form does not identify the hours or days on which support services were to be provided, but ticks boxes for “personal care”, “domestic tasks”, “transport” (as needed) and meal preparation for lunch.

192. [278]

     On 24 June 2017 at around 4.00pm, an unidentified male “friend” visited Mr McClure for half an hour (Lim at [25]; CB863–4). I infer that this was Dr Alexakis.

193. [279]

     On 26 June 2017 at around 1.00pm, Mr McClure was discharged from the RPAH (Lim at [53]; Spalding at [84]; MTB1379). Prior to his discharge, Mr McClure told Dr Fernandes that he was happy with the service at the RPAH (Fernandes at [55]).

194. [280]

     Dr Fernandes prepared the discharge referral for Mr McClure, which was addressed to his “Doctor”. The discharge referral records that Mr McClure has stage 3B colorectal cancer and other medical issues, Mr McClure had completed forms for private services of 5 hours of nursing support a day at home and Mr McClure was to meet them at home to conduct a review (CB628). Under the heading “Testamentary capacity”, the referral records the following: the GP had requested that the team conduct a testamentary capacity assessment for the patient given the GP’s concerns regarding the patient’s estate being exploited by other parties; the patient’s cognitive profile was within normal limits but indictive of mild cognitive impairment; the patient gave a detailed account of his financial situation; the patient was able to weigh up the pros and cons of keeping versus changing his current will; his reasoning and logical thinking appeared intact and, on that basis, it was believed that the patient had capacity to make his own financial decisions at that point in time. In cross-examination, Dr Fernandes explained that the “Testamentary capacity” section of the referral was not based on the 13 June interview but was the conclusion of the RPAH neuropsychology report (T446.47–447.8).

195. [281]

     It appears that Mr Camilleri did not visit Mr McClure or speak to him during this admission to the RPAH. Mrs H Schwanke did not visit him but gave evidence that she spoke to him on one occasion during which Mr McClure told her that he was scared that he would not be allowed to go home.

196. [282]

     During cross-examination, Dr Alexakis gave the following evidence about Mr McClure while he was at the RPAH, which was generally consistent with his affidavit evidence: Mr McClure wanted to get out of hospital; he was distressed at times and requested he visit to address concerns that he felt were not being addressed by the RPAH; he wanted Dr Alexakis to assist him to abscond and get out of hospital and repeated the request a number of times, and Dr Alexakis did not oblige him; Mr McClure wanted legal advice to address his concerns about his estate and to reassess his will; after 13 June 2017, Mr McClure told Dr Alexakis that he felt like he was in prison. Dr Alexakis accepted that Mr McClure was not strictly a patient of his within the RPAH, said that he visited because Mr McClure asked Dr Alexakis to come and see him and accepted that initially, in respect of his visits with Mr McClure in the hospital leading up to 8 June 2017, Mr McClure’s “focus was to get him out of hospital” (T108.49–109.19; T110.15–28).

197. [283]

     On 26 June 2017, Mr McClure signed a Service Agreement with Your Choice to receive personal care, domestic assistance and social support services (MTB1257–62). The Service Agreement identifies (in what appears to be Mr McClure’s handwriting) that a support worker would come “5 hours per week (say 8.00am to 1pm)”.

198. [284]

     Your Choice arranged for Maggie Nasr to attend on Mr McClure and provide him with assistance with his daily and household needs. The Your Choice Carer’s Log records that Ms Nasr commenced working with Mr McClure on 27 June 2017 and attended on him every day (including weekends) for two weeks and on weekdays from 10 July 2017 to 30 October 2017. Other carers attended on Mr McClure for around three hours each Saturday and Sunday from 23 September 2017 until 30 October 2017 (MTB1978–80).

199. [285]

     In addition to the Your Choice services, following his discharge from the RPAH, Mr McClure received medical care from Dr Alexakis and staff from the palliative care team at Concord Hospital which comprised of community nurses, a palliative care doctor and social workers.

200. [286]

     Dr Alexakis kept in almost daily contact with Mr McClure by telephone and also made home visits to him on a regular basis.

201. [287]

     During the period 26 June to 5 July 2017, phone records identify 14 calls between Dr Alexakis and Mr McClure, most of which were from Dr Alexakis after 6.00pm at night (MFI8). Dr Alexakis accepted there had been a lot of communication between the two of them “post‑discharge”. He did not have a recollection of what was discussed during each of the calls and said they were likely to ensure Mr McClure was okay or to deal with the arrangement of prescriptions (T118.28–119.19). I infer that the conversations between Dr Alexakis and Mr McClure were not limited to discussing Mr McClure’s medical needs and likely involved more general discussions about Mr McClure and his interests. This is based on the following: the regularity and timing of the calls; the SFMC Patient Report refers to only three consultations or notes relating to actions for prescriptions or other medical-related matters during the period 26 June to 5 July 2017; and Dr Alexakis’ evidence that during surgery consultations his discussions with Mr McClure about matters outside of Mr McClure’s medical needs were brief and he gained more insight about Mr McClure’s personal life and experiences when he started to visit him in hospital and at home. Dr Alexakis said that during his home visits Mr McClure spoke to him about growing up, his love of Greece and visits there, politics, finance, travel, world economics and how this influenced the stock market. Mr McClure would test his Greek language skills with Dr Alexakis and he spoke of his love of horse racing and casinos. He also said that Mr McClure often asked about Dr Alexakis’ upbringing and family although he never met them (Alexakis at [35]).

202. [288]

     Dr Alexakis gave evidence that he commenced making almost daily home visits to Mr McClure on 6 July 2017 (T32.42–4). Dr Alexakis said that he made home visits as he was concerned that there was an inadequate level of clinical care being provided to Mr McClure as Ms Nasr was not authorised to provide nursing or medical services (Alexakis at [94]–[95]). He gave evidence that he was upset at what he described as the “therapeutic gap” as Mr McClure had no one from 3.00pm until 9.00am the next day and no one on the weekend (T78.26–33). He deposed that he made home visits after he finished work at the SFMC in order to conduct medical examinations on Mr McClure to check his blood pressure and temperature, feel his abdomen, check his blood sugars, administer insulin (if needed), review his legs which were swollen and infected, review his medication and deal with any other issues that Mr McClure raised.

203. [289]

     There is a dispute about when Dr Alexakis’ home visits to Mr McClure commenced and whether the therapeutic gap was an inevitable consequence of Dr Alexakis’ interventions in Mr McClure’s care while he was in the RPAH.

204. [290]

     In relation to the home visits, the defendants say that the Court should conclude that Dr Alexakis’ home visits commenced from at least 3 July 2017. This is based on Dr Alexakis’ evidence at a hearing before the Medical Council in November 2017 where he answered that it was “correct” that from 3 July onwards he saw Mr McClure at home.

205. [291]

     In cross-examination, Dr Alexakis gave evidence that he was wrong when he agreed that he saw Mr McClure at home from 3 July 2017 and maintained that 6 July 2017 was the first clinical home visit (T105.25–32). I accept Dr Alexakis’ evidence on this issue.

206. [292]

     Dr Alexakis’ evidence is consistent with the handwritten notes he made of his home visits to Mr McClure (CB587–604); the first note is dated “6/7/2017” and the last is dated “5/10/2017”. The proposition put to Dr Alexakis at the Medical Council hearing about his home visits was said to have been based on an entry in his handwritten notes, which I observe could easily be misread as some dates appear to be partially obscured (see, for example, CB589–90). Based on the handwritten notes in evidence, Dr Alexakis’ explanation in cross-examination in these proceedings that he did not question the Medical Board as he was not able to view the pages that the questioner was referring to but, if he had that opportunity, he may have been able to correct them on the assumption (T105.29–33), was plausible, in my view.

207. [293]

     The SFMC Patient Report includes entries for “surgery consultations” for Mr McClure on 4 July at 10.05am and 5 July at 1.50pm that might suggest that Dr Alexakis saw Mr McClure on those days at home. However, the actions recorded in the entries relate to a pathology request and adding and printing prescriptions (CB488). Mr Alexakis explained in cross-examination that these entries were based on phone consultations with Mr McClure, rather than physical examinations undertaken of Mr McClure when he was at home (T104.40–50; T105.9–16; T105.37–46). Dr Alexakis’ evidence was supported by the phone records, which identify calls between Dr Alexakis and Mr McClure on 3 July (at 9.35pm for 1.5 minutes), on 4 July (at 1.41pm for 7 minutes and 10.07pm for 5 minutes) and on 5 July 2017 (a call from Mr McClure to Dr Alexakis at 11.24am for 4.5 minutes and two calls from Dr Alexakis to Mr McClure at 1.26pm for 95 seconds and at 2.34pm for 115 seconds) (MFI5; H Schwanke at [18]).

208. [294]

     As to the cause of the “therapeutic gap”, I am not persuaded by the Salvation Army’s submission that the “gap” was an inevitable consequence of Dr Alexakis’ interventions with Mr McClure while he was at the RPAH and that Mr McClure dismissed the assistance offered by the RPAH staff to the point where the RPAH staff permitted Mr McClure’s discharge on the understanding that the level of private community nursing services provided to Mr McClure would be based on an assessment conducted after discharge (Outline of Final Submissions of First Defendant at [26(ww)]).

209. [295]

     The evidence indicates that Dr Alexakis recommended Mr McClure be discharged on the basis of 24-hour nursing care to Dr Lim (at [269] above), it was the RPAH staff who provided Mr McClure with recommendations and forms to fill out, they were aware that he had chosen to receive private care for five hours per day and, upon discharge, he was to meet Your Choice at home where he would be reviewed. The documentary evidence also suggests that Mr McClure signed the Service Agreement having chosen to obtain five hours of assistance from a support worker Monday to Friday only. In that context, and having regard to Mr McClure’s views about having people in his home and character more generally (see, for example, at [333], [350] and [431]–[440] below), Dr Alexakis’ evidence in cross-examination that Mr McClure was aware that there were lots of resources available to him, some of which he chose to reject, and that he chose the care he wanted from Your Choice (T79–80) is plausible, in my view, and I accept it. In coming to that view, I have also had regard to Dr Spalding’s evidence, which I found persuasive, that she thought that while ideally it would be good if there was somebody to monitor Mr McClure on a daily basis, people choose to go home without that, she knew Mr McClure had a “pendant alarm”, she thought that a good GP would regularly monitor Mr McClure’s condition which could be by telephone or face-to-face, and the palliative care team from Concord Hospital were also involved so there was an option for Mr McClure to contact them for care when needed (T429.43–430.8)

210. [296]

     As to the Concord Hospital palliative care team, Concord Hospital community nurse reports dated 28 and 29 June 2017 record that: Mr McClure was discharged from the RPAH with care provided by a private agency named Your Choice; the care provided was domestic assistance and meal preparation but no nursing care; the community nurse requested the agency to contact “SDN” if there were nursing issues as Mr McClure was palliative; on 29 June, a carer from Your Choice indicated that Mr McClure was unwell and confused about his medications; Mr McClure’s “GP is visiting BD and assisting with meals”; and a home visit for re-admission assessment was planned for 30 June 2017 (MTB1389–94). The documents in evidence do not identify any re-admission assessment by the palliative care team at the Concord Hospital on 30 June 2017.

211. [297]

     The next record of contact from the Concord Hospital team is dated 4 July 2017 (MTB1397) and refers to a phone call to Mr McClure by a community nursing service contact, the “patient” at the time of the call declining to discuss the next visit as he wanted to rest, otherwise “nil issues” and a call was scheduled for Tuesday the following week.

212. [298]

     On 5 July 2017 at around 6.51pm, Mr Andresakis attended on Mr McClure at the Strathfield Home, having called Mr McClure when he arrived to be let in. At that attendance, Mr McClure and Mr Andresakis discussed Mr McClure’s testamentary intentions and other company related matters.

213. [299]

     Mr Andresakis deposed that Mr McClure led him down a corridor to a study at the back of his house and, very early in his attendance, he and Mr McClure had a conversation to the following effect:

214. [300]

     At the meeting, Mr Andresakis took photographs of various cabinets, some of which are filled with figurines and one of which is empty (CB166–70).

215. [301]

     Mr Andresakis deposed that, at the end of the conversation referred to at [299], Mr McClure handed him a document which he recognised as being in Mr McClure’s handwriting (McClure Document) (CSTB444). The McClure Document (as it appears in the Andresakis & Associates file) is reproduced below:

216. [302]

     Mr Andresakis made a handwritten file note of his attendance on Mr McClure (CB172–5; Exhibit 1B) and deposed that he estimated the attendance on Mr McClure lasted approximately one hour although in cross-examination he said he could not recall if it was less than that (T232.43–7).

217. [303]

     Mr Andresakis’ handwritten file note is four pages long (CB171–5) and was subsequently typed up by someone at Andresakis & Associates (CSTB443). The handwritten file note records the following:

218. [304]

     In cross-examination, Mr Andresakis gave evidence consistent with his affidavit evidence that: Mr McClure was very particular about the cabinets and the Hummel figurines; Mr McClure asked whether Mr Andresakis would be the executor and trustee to which Mr Andresakis said he would; and Mr Andresakis’ notes were “for myself” to make amendments to Mr McClure’s will (T233.49–234.4; T234.25–30; T234.50–235.3).

219. [305]

     I accept Mr Andresakis’ evidence that he and Mr McClure had a conversation to the effect of that set out at [299] above; it is not inconsistent with Mr Andresakis’ file note of what they discussed that day. However, a more complete story of what occurred prior to and at the 5 July meeting emerges from the evidence and from Mr Andresakis’ cross-examination and highlights that aspects of Mr Andresakis’ evidence regarding that meeting and the preparation of the July Will were incomplete.

220. [306]

     The first aspect relates to Mr Andresakis’ evidence about the making of the appointment by Mr McClure with his office staff for the 5 July 2017 meeting.

221. [307]

     Mr Andresakis deposed that, sometime after 8 June 2017 and before 5 July 2017, Mr McClure made an appointment with his office staff for Mr Andresakis to attend at the Strathfield Home for the purposes of putting the affairs of Mr McClure’s company in order.

222. [308]

     There was no evidence of a telephone call between Mr McClure’s landline and Mr Andresakis’ mobile or the office of Andresakis & Associates between 8 June and 5 July 2017. There were two calls made on 5 July 2017 from the office number of Andresakis & Associates prior to Mr Andresakis’ meeting that evening. The first call at 1.22pm was not answered. The second call at 1.28pm was for around 2.5 minutes. Interspersed with those calls were three calls between Dr Alexakis and Mr McClure: one call from Mr McClure to Dr Alexakis at 11.24am for 4.5 minutes and two calls from Dr Alexakis to Mr McClure at 1.26pm for 95 seconds and at 2.34pm for 115 seconds (as referred to at [293] above).

223. [309]

     In cross-examination, Mr Andresakis agreed that he could not say that it was Mr McClure who made the appointment for the meeting on 5 July and that his affidavit needed to be read subject to that correction. He suggested that “[i]t might have been Dr Alexakis, I’m not sure” (T231.15–8; T232.24–34; T256.47).

224. [310]

     When asked about the calls made by his office to Mr McClure on 5 July, Mr Andresakis did not recall calling Mr McClure unless it was to confirm the appointment and said that normally it would be the office staff that would call as he would usually call on his mobile (T247.34–42). He also gave evidence that he did not recall Dr Alexakis calling to say that Mr McClure would answer his phone or speaking to Dr Alexakis on that day (T247.34–248.18).

225. [311]

     The Salvation Army submitted that the Court should find that Dr Alexakis was involved in making the appointment for the 5 July meeting as he encouraged Mr McClure to accept the telephone call from Mr Andresakis (Outline of Final Submissions of First Defendant at [26(yy)]. This is based on the coincidence of timing of Dr Alexakis’ call to Mr McClure on 5 July at 1.26pm (that lasted 95 seconds) just after Andresakis & Associates’ unsuccessful call to Mr McClure at 1.22pm.

226. [312]

     It seems likely that the appointment for the 5 July meeting between Mr McClure and Mr Andresakis was confirmed in the call from Andresakis & Associates to Mr McClure at 1.28pm. I cannot say what prompted Andresakis & Associates to contact Mr McClure to confirm that meeting. Based on Mr Andresakis’ evidence in cross-examination (as referred to at [307]), it is possible that Dr Alexakis was involved although the phone records and documents in evidence do not identify any call or refer to any other communication between Dr Alexakis and Mr Andresakis (or Andresakis & Associates) after the call on 8 June, and there is no record of a call or other communication between Dr Alexakis and Mr Andresakis or Andresakis & Associates on 5 July. The absence of any record of a call or communication between them corroborates Dr Alexakis’ evidence in cross-examination that he did not call Mr McClure on 5 July to make sure that everything was right for him to give instructions to Mr Andresakis to make a will that left his home and 90% of his estate to Dr Alexakis (T119.16–27).

227. [313]

     The second aspect is that Mr Andresakis’ evidence-in-chief suggests that the 5 July meeting was the first occasion on which he received instructions to change Mr McClure’s June Will. This is not consistent with the documents in evidence and the logic of events.

228. [314]

     In particular, Mr Andresakis’ evidence-in-chief failed to deal with the fact that on 5 July 2017 at around 2.21pm, prior to Mr Andresakis’ meeting with Mr McClure, Mrs Guy created a draft will (Draft Will) that modified the contents of the June Will (Guy 3 at [40]; T180.31–2; T462.21–3; CSTB449–50).

229. [315]

     The Draft Will is in the same terms as the June Will except for clause 2. Under the Draft Will, clause 2 gives: all of Mr McClure’s “Hummel figurines in 3 identical curio cabinets (but not the cabinets)” to Mrs H Schwanke (cl 2(A)); the Strathfield Home and its contents (except for the Hummel figurines) to Dr Alexakis (cl 2(B)); and 90%, 9% and 1% of the residue of Mr McClure’s estate to Dr Alexakis, Mr Camilleri and Mrs H Schwanke respectively (cl 2(C)). These changes reflect some of the matters referred to in the McClure Document and some, but not all, of the instructions given to Mr Andresakis at the 5 July meeting, as recorded in Mr Andresakis’ file note.

230. [316]

     Mr Andresakis’ evidence-in-chief also did not deal with the version of the Draft Will in evidence that is marked up with Mr Andresakis’ handwritten annotations (CSTB449–50; Exhibit 1B; Guy 3 at [42]) (Marked-up Draft Will) which state:

231. [317]

     Mr Andresakis’ annotations reflect instructions received at the meeting of 5 July 2017 as recorded on page three of his file note and are also consistent with the McClure Document.

232. [318]

     Mr Andresakis was asked about the Draft Will, the McClure Document and the Marked-up Draft Will in cross-examination.

233. [319]

     Mr Andresakis could not explain the provenance of the Draft Will. He did not know when the Draft Will was made or amended and said “I don’t understand” when it was put to him that he prepared the Draft Will in anticipation of the 5 July meeting (T236.36–8; T237.44–7). He accepted that the Draft Will was the document he would prepare having regard to the McClure Document and the June Will and accepted that it appeared that the only way he could turn up with the Draft Will at the meeting of 5 July 2017 was if he had been given the McClure Document prior to that meeting (T238.7; T238.32–7).

234. [320]

     As to the McClure Document, Mr Andresakis described it as the “instructions from the client” but could not recall when it was received or “how it got to us”. He said “[n]o, I don’t” when asked whether he had a recollection of being given the McClure Document at the 5 July 2017 meeting although he did not accept that his evidence outlined at [301] above was false, describing it as what he believed to be the case at the time (T238.38–42; T241.3–19). He also could not say what happened to the original of the McClure Document or whether the version on his file was emailed or faxed to him (T239.24–30).

235. [321]

     The Salvation Army and the Schwankes submitted that the Court should find that Dr Alexakis delivered the McClure Document to Mr Andresakis or his office prior to Mr Andresakis’ meeting with Mr McClure on 5 July 2017 at 6.51pm, and that Mr Andresakis took the Draft Will to his meeting with Mr McClure and made the handwritten notations on it that night.

236. [322]

     Based on the timing of events and Mr Andresakis’ evidence in cross-examination, I consider it most likely, and find, that Mr Andresakis took the Draft Will that had been prepared by Mrs Guy with him to his meeting with Mr McClure on 5 July and made his handwritten notations on it at that meeting or shortly after to create the Marked-up Draft Will. There is no logical reason why Mr Andresakis would leave the Draft Will at his office when it had been created a few hours earlier and related to Mr McClure’s affairs.

237. [323]

     The similarities between the contents of the McClure Document and clause 2 of the Draft Will, together with the evidence of Mr Andresakis (set out at [319] above), also suggest that the Draft Will was created by Mrs Guy based on the written instructions contained in the McClure Document and that that document had already been received by Andresakis & Associates when the Draft Will was prepared.

238. [324]

     That said, the Draft Will does not include the first item referred to in the McClure Document, namely, the $10,000 gift to Ms Nasr, which is a significant omission in my view. As Senior Counsel for Dr Alexakis submitted, it is possible that during Mr McClure's call with Andresakis & Associates at 1.28pm that day, Mr McClure provided initial verbal instructions about changes to his will, Mrs Guy typed the Draft Will based on those instructions and the McClure Document was received by Mr Andresakis at the 5 July meeting (as Mr Andresakis deposed in his affidavit) (T574.6–14; T575.32–6). It is also possible that the McClure Document was sent or delivered to Andresakis & Associates prior to the 5 July meeting by someone other than Dr Alexakis on Mr McClure’s instructions, for example, Ms Nasr.

239. [325]

     The absence of any record of a phone call or other communication between Dr Alexakis (or his wife) and Mr Andresakis (or his office) during the period 26 June to 5 July 2017 also tends against a finding that Dr Alexakis was involved in the delivery of the McClure Document, as does Mr Andresakis’ evidence in cross-examination that rejected that it must have been Dr Alexakis who gave him the McClure Document and did not agree that Dr Alexakis was instrumental in giving him instructions for making the July Will (T239.3–12), and Dr Alexakis’ evidence in cross-examination that rejected giving the “handwritten instructions from Mr McClure for his 10 July 2017 will” or any documentation relating to Mr McClure’s former wills to Mr Andresakis on 29 June 2017 or at any time (T115.33–5; T128.1–20).

240. [326]

     It follows that I do not accept that the only explanation for why a copy of the McClure Document appears on Mr Andresakis’ file is that Dr Alexakis provided Mr Andresakis with the instruction sheet sometime on or before 5 July 2017 and I reject that Dr Alexakis was the only person likely to have delivered it (Outline of Closing Submissions for the Third and Fourth Defendants at [147.1]; Outline of Final Submissions of First Defendant at [26bbb]). The position I have come to is that I am unable to say precisely how or when Mr Andresakis or Andresakis & Associates received the McClure Document, although I find it was likely received sometime on 5 July 2017.

241. [327]

     There were also submissions directed to a blue folder containing Mr McClure’s prior wills, some handwritten notes and some documents relating to Mr McClure’s companies that formed part of the papers held by Andresakis & Associates and was produced during the course of the hearing. I am not persuaded that the evidence supports the finding contended for by the Salvation Army, namely, that Dr Alexakis collected Mr McClure’s blue folder from Mr McClure’s home and delivered or provided it to Mr Andresakis before the meeting on 6 June 2017 (Outline of Final Submissions of First Defendant at [26(t)]–[26(u)]).

242. [328]

     Mr Andresakis gave evidence, which I accept, that he did not take the blue folder to his meeting on 8 June 2017 with Mr McClure. While he and Mrs Guy could not recall when the blue folder came into Mr Andresakis’ possession or when it was added to Andresakis & Associates files, Mr Andresakis gave evidence that he received documents from Mr McClure at his meetings with him in July and August 2017 (T182.21–41; T203.11–32; T213.38–40).

243. [329]

     Dr Alexakis was referred to the blue folder during cross-examination. He denied playing any part in the earlier wills or in the passing of testamentary documents from Mr McClure to Mr Andresakis and said that he did not know how Mr Andresakis got them (T110.2–8), having already denied that he supplied a copy of the 2016 Will to Mr Andresakis (T45.2; T56.10–6). I accept his evidence on that matter.

244. [330]

     Based on the evidence of Mr Andresakis and Dr Alexakis and the logic of events, I accept the Schwankes’ submission that it is more likely that Mr Andresakis received the blue folder from Mr McClure at the time he received the handwritten note that appears on the Andresakis & Associates file which states: “Angelo. Copy of will. Copies of blank ATO COY return 2017 x 10… Past years advice re COY minutes not done” (CSTB461). It is not clear when that note was received but I find it likely that it was at one of Mr Andresakis’ meetings with Mr McClure on 5 or 10 July or 22 August 2017.

245. [331]

     Dr Alexakis’ note of his home visit on 6 July 2017 records that Mr McClure had refused visits from the “sisters”, he did not want the hospital to be involved in his care, he was upset at the RPAH as he felt that he was “a prisoner/captive” in hospital and he did not want to be like the “lady in the opposite bed in hospital” who had bandages on her swollen legs (CB587). Dr Alexakis explained in cross-examination that the reason he and Mr McClure discussed bandages was because Mr McClure’s legs were swollen, ulcerating and oozing proteinaceous liquid. He said that Mr McClure was adamant that he did not want bandaging as the lady in the opposite bed to him in the RPAH (who had bilateral lymphoedema) would scream when the bandages were changed (T120.46–121.5).

246. [332]

     On 7 July 2017 at around 4.00pm, Leonie Iskov, a Concord Hospital clinical nurse specialist, undertook a review of Mr McClure at his Strathfield Home (MTB1405–6). The report she prepared on 11 July 2017 records that: Mr McClure had concerns “re legal affairs”; he “needs to change his will”; he identified a friend, Frank, as his “POA for financial affairs (only person he trusts)”; Frank was not available to assist as he was the full-time carer for his wife; and Mr McClure would prefer to die at home and could have 24-hour private nursing care there. The report recommends that Dr Spalding review Mr McClure at home.

247. [333]

     On 8 July 2017, Dr Spalding called Mr McClure at home. Mr McClure told her that he had previously resisted having someone at home but it was working out better than expected, he was managing reasonably well and he really liked the carer from the private service (“Maggie”) with whom he was building a good relationship. Dr Spalding’s progress note records that she informed Mr McClure that she would be away for the next few weeks, if he were to be admitted during that time Dr Ng would look after him and she hoped that would not be required and he would remain at home (MTB1401; Spalding at [84]).

248. [334]

     Dr Alexakis made home visits to Mr McClure on Saturday, 8 July and Sunday, 9 July 2017.

249. [335]

     On 9 July 2017 at 2.41pm, Mrs Alexakis called Mr Andresakis and they had a conversation for three minutes (CSTB310). Dr Alexakis said he had “no idea at all” about the 9 July phone call between his wife and Mr Andresakis (T65.1).

250. [336]

     I infer that the call between Mrs Alexakis and Mr Andresakis was for the purpose of arranging a meeting between Mr McClure and Mr Andresakis the following day and that Dr Alexakis asked Mrs Alexakis to make that call. This inference arises from the following: Mr Andresakis’ evidence in cross-examination that he would not have had any reason to speak with Mrs Alexakis on a Sunday other than to confirm the appointment with Mr McClure for the next day (T239.37–50); his explanation that his appointments were “slotted into when [Mr McClure] wasn’t receiving treatment” and were timed so Mr Andresakis could attend without disturbing Mr McClure’s treatment (T240.10.19); Mr Andresakis’ acceptance of the possibility that Dr Alexakis was involved in the making of the appointment for the signing of the will on 10 July 2017 (T256.50); Mrs Guy’s evidence that she did not recall who made the appointment for Mr Andresakis to see Mr McClure that day (T182.43–50); the absence of any record of a call between Mr Andresakis (or his office) and Mr McClure between 6 and 10 July; and Dr Alexakis’ failure to call Mrs Alexakis to give oral evidence about what the call concerned.

251. [337]

     The Salvation Army submitted that Mr Andresakis’ explanation that he spoke to Mrs Alexakis to slot in a time for his appointment with Mr McClure was not supported by the medical evidence. I agree. The evidence indicates that Dr Alexakis’ visits to Mr McClure were usually in the late afternoon and the community nurse was not making regular visits to Mr McClure at this time. In my view, there is no logical reason why Mr Andresakis or someone from his office could not have arranged Mr Andresakis’ appointments with Mr McClure directly, rather than doing so through Mrs Alexakis or Dr Alexakis to the extent that Dr Alexakis was also involved.

252. [338]

     On 10 July 2017 at 3.28pm, Mrs Guy modified the Draft Will and prepared a final version.

253. [339]

     Mrs Guy cannot recall how the draft was edited into the final form of the will on 10 July 2017. She gave evidence that it was Mr Andresakis’ practice to provide her with handwritten notes on a document he wanted to edit and she believed that the Marked-up Draft Will with the handwritten notations was the draft of the final version that was created on 10 July 2017 (Guy 3 at [89]). Given the contents of clause 2(B) of the July Will (set out at [114] above), it seems more likely that the final version of the July Will was created by Mrs Guy based on both the Marked-up Draft Will and the contents of Mr Andresakis’ file note at [303] above.

254. [340]

     On 10 July 2017 at around 4.30pm, Mr Andresakis and Mrs Guy attended on Mr McClure at his Strathfield Home with the final version of the July Will.

255. [341]

     Mr Andresakis prepared a handwritten file note of his attendance on Mr McClure that day (CB179; Exhibit 1B). Mrs Guy prepared her own typed file note that was not based on reading Mr Andresakis’ handwritten note (T184.12–35; CB180/190).

256. [342]

     The file notes prepared by Mr Andresakis and Mrs Guy are of a similar length (one page) and cover similar topics although they use slightly different wording.

257. [343]

     Mr Andresakis’ file note records that the meeting started at 4.30pm and states as follows:

258. [344]

     Mrs Guy’s typed file note states as follows:

259. [345]

     The July Will has a signature above Mr McClure’s name on page three which was witnessed by Mr Andresakis and Mrs Guy at the meeting of 10 July 2017 (Andresakis 1 at [1]; Guy 1 at [1]).

260. [346]

     The executed July Will contains a handwritten notation at clause 2(C) which crosses out the letter “A” to correct the misspelling of Ms Nasr’s surname (it was spelt “NASRA” on the version created by Mrs Guy on 10 July) with what appears to be the initials of Mr McClure and the attesting witnesses next to the notation.

261. [347]

     In cross-examination, Mr Andresakis accepted that at the meeting of 10 July 2017 he did not ask Mr McClure why he had previously left 65% of his estate to Dr Alexakis and was changing it to 90% along with his Strathfield Home (T258.9). Mr Andresakis did not agree that he should have asked Mr McClure why he was now giving Dr Alexakis those gifts and gave evidence that he accepted that the terms of clause 2(D)(iii), which provided for Mr Camilleri to receive Mrs H Schwanke’s 1% share if she predeceased Mr McClure, may not have been what had been instructed according to his file note and he thought it was supposed to have gone to Dr Alexakis (T258.41; T253.15–43).

262. [348]

     On 10 July 2017, Dr Alexakis made a home visit to Mr McClure. He gave evidence that the visit was in the evening after he finished work (he usually worked at the SFMC until 6.00 or 7.00pm (T125.15)), he did not recall bumping into Mr Andresakis or Mr McClure telling him that Mr Andresakis was coming to make the will (T131.8–20).

263. [349]

     The notes of Dr Alexakis’ home visit on 10 July 2017 record that Dr Alexakis advised Mr McClure about his diet, foods, hospitalisation, palliative care visits which Mr McClure “refused”, and a nurse practitioner which was also “refused” (CB588).

264. [350]

     Dr Alexakis deposed that he spoke to Mr McClure on numerous occasions about increasing the hours and the care package with Your Choice, and told him he needed a trained nurse, but Mr McClure refused. He said that he asked Mr McClure to increase the care on the weekends but Mr McClure refused as he considered the costs to be ridiculous and only wanted Ms Nasr. Dr Alexakis gave evidence that he had concerns for Mr McClure’s wellbeing as there was a clinical need for increased care (Alexakis at [94]–[95]).

265. [351]

     Dr Alexakis gave evidence in cross-examination that Mr McClure was against other people coming to his house who he did not know and when he did not know their motives, that Dr Alexakis tried to persuade him to go to hospital because he had an issue with his legs but Mr McClure said he did not need to go, and that Dr Alexakis was duty bound to advise Mr McClure of his options and to reinforce the appropriate management plan (T126.21–8). He also said that Mr McClure was scared at this time that if the palliative care team assessed him, they would turf him back into hospital and described giving Mr McClure his options as to what was available, reassuring him that it was not the case and that the job of palliative care was to maintain him at home as long they could (T130.45–131.6).

266. [352]

     During cross-examination, Dr Alexakis was asked about Mr McClure’s nutrition and diet. He gave evidence that Mr McClure was not receiving Meals on Wheels and that he sometimes assisted Mr McClure by making soup, heating a meal or checking his fridge. Dr Alexakis did not agree that these were uncommon services for a GP to provide a patient and gave evidence that checking a fridge was a pretty standard thing for a house call for someone who is on their own, explaining that insulin needed to be administered with a meal (T124.1–23). He also said that, under normal circumstances, a patient would be able to do things for themselves, such as check their blood sugars, but Mr McClure was not able to and that, under other circumstances, a district nurse would be able to come and monitor his sugars but Mr McClure refused to have that service provided (T168.37–41). Dr Alexakis’ evidence about these matters is corroborated by the contents of his home visit notes, Mr McClure’s stated preference not to have many people in his home and Mr McClure’s private and suspicious character (see at [431]–[440] below), and I accept it.

267. [353]

     On 11 July 2017, Deborah Menzies, a registered nurse, spoke to Mr McClure who told her that he was in bed because his dear friend of 50 years had passed away, his carer had just left at 3.00pm, he had no issues and she should call next week (MTB1402). I infer that Mr McClure was referring to Mr Camilleri’s wife who died on 8 July 2017.

268. [354]

     Mr Camilleri gave evidence that he started visiting Mr McClure at home from the last week of July 2017. Mr Camilleri said that when he came back into Mr McClure’s life in July 2017, he discovered that Mr McClure’s health had declined significantly, Mr McClure wanted to stay home rather than be at hospital and he had people to come to his home to check on him. He deposed that he spent time in the garden, cleared the gutters of debris, assisted Mr McClure to pay a contractor and met Ms Nasr.

269. [355]

     During cross-examination, Mr Camilleri gave evidence that he called Mr McClure on his landline on 5 July 2017 and during that conversation Mr McClure asked him to go to his “lockup” to get some records for Mr McClure. Mr McClure said he performed that task within the week and brought the documents to Mr McClure at the Strathfield Home (T306.37–307.27).

270. [356]

     According to Dr Alexakis’ handwritten notes, Dr Alexakis did not make any home visits to Mr McClure from 11 to 16 July 2017 although he maintained contact with Mr McClure during this period by phone. The SFMC Patient Report refers to a consultation on Saturday, 15 July at 11.20am in relation to a prescription and the phone records refer to calls between Mr McClure and Dr Alexakis on 11, 13 and 15 July.

271. [357]

     Dr Alexakis’ notes of his home visits to Mr McClure record that he attended on Mr McClure each day from 17 July 2017 to 29 September 2017 (CB592–601), except for 12 and 13 September 2017.

272. [358]

     The notes from Dr Alexakis’ home visits during this period refer to medical examinations being undertaken and discussions about care and other medical issues with Mr McClure. By way of example, Dr Alexakis’ note from his home visit on 18 July 2017 records that Dr Alexakis gave advice to Mr McClure about dressings and he and Mr McClure discussed visits to Mr McClure from a nursing sister and from the palliative care and geriatric teams at Concord Hospital but Mr McClure was “not keen” and refused. It also records that Mr McClure was annoyed at Dr Alexakis’ suggestion that he receive care at Concord Hospital, Mr McClure wanted to stay home for as long as possible and Dr Alexakis said that they would continue with the care as long as they could.

273. [359]

     Dr Alexakis’ home visit note for 14 August 2017 records that Mr McClure’s legs were swollen, “Adv palliative care team review pgm…” and “Adv re resources and need to access [illegible]”. During cross-examination, Dr Alexakis gave evidence that he stressed to Mr McClure that they had no access to resources and Mr McClure needed to engage the hospital, which Mr McClure reluctantly did although he only allowed the clinical nurse supervisor to come out every two weeks to inspect his leg and refused anyone else who tried to do the dressings except for Ms Nasr (T121.13–7). Dr Alexakis referred to his frustration at managing Mr McClure at home in circumstances where Mr McClure would not accept help from others and only reluctantly agreed to visits from nurses to do his dressings when his legs had become red, swollen and infected (T121.22–7). Dr Alexakis also gave evidence that he did not do dressings, was not qualified in palliative care but worked with palliative care patients frequently as most GPs did and did what he could within his qualifications (T121.35–46).

274. [360]

     On 14 August 2017, Dr Alexakis wrote to the palliative care team at Concord Hospital with an urgent request for specialist input to optimise Mr McClure’s care and management (CB626). According to Concord Hospital notes, Dr Alexakis called the hospital, advised that Mr McClure was deteriorating and refusing to leave his home, and requested a home visit from “SDNB and palliative care registrar” (MTB1416).

275. [361]

     The Concord Hospital patient notes for Mr McClure record that on 15 August 2017, Debra Menzies, a community nurse, went to the Strathfield Home where she was told by the carer that Mr McClure was resting, he did not wish to see her and he had no concerns (MTB1424). The notes also record that on 17 August 2017, Ms Menzies and Dr Lisa Potter, a palliative care registrar, attended on Mr McClure at his home and were told that he wished to stay at home as long as possible, his GP was available to attend the house and was monitoring him daily, and if his symptoms were distressing he would like to return to Concord Hospital under palliative care (MTB1426–8; MTB1432–3).

276. [362]

     On 18 August 2017, Ms Menzies went to the Strathfield Home to deposit bandaging and materials, and teach Ms Nasr how to apply dressings to Mr McClure (MTB1436; T121.10–3). Her notes of the visit refer to a plan of dropping off more stock (which appears to have been done on 21 August 2017; MTB1440) and Mr McClure requesting fortnightly visits.

277. [363]

     On 22 August 2017, Mr Andresakis attended on Mr McClure at the Strathfield Home in relation to Mr McClure’s company affairs. Mr Andresakis gave Mr McClure company returns to complete. According to Mr Andresakis’ file note and his evidence in cross-examination, Mr McClure was still concerned about the shareholder who died and, once he had completed the forms, Mr McClure would call Mr Andresakis to try and fix up the transfer to the estate of the shareholder (T255.35–256.10).

278. [364]

     On 7 September 2017, Dr Dipti Lath Mittel, a palliative care doctor at Concord Hospital, reviewed Mr McClure at the Strathfield Home with Ms Iskov and Ms Menzies while Ms Nasr was present. Dr Mittel’s letter to Dr Alexakis, which was sent on 13 September 2017, records that Mr McClure was pain-free, alert, oriented, had sores on his swollen lower limbs, wanted to stay at home but was open to being admitted to Concord Hospital for palliative care if end of life care at home was not possible and that Dr Mittel would refer Mr McClure to a RPAH social worker as Mr McClure would like to know more about organising his funeral. That day, Mr McClure completed an authorised ambulance care plan that provided, amongst other things, that he did not wish for “CPR/ICU/intubation/NIV/intropes” (MTB1451–3; MTB1469; MTB1471–3).

279. [365]

     Dr Alexakis’ notes of his home visit to Mr McClure on 11 September 2017 record that Mr McClure’s wound had been re-dressed and that Dr Alexakis advised about returning to hospital to which Mr McClure refused. The note records: “no hospital… not his wish… not to inform other hospital prof” (CB596).

280. [366]

     On 11 September 2017, Lisa Brandon from the HCCC provided information to Burwood Police about a complaint made in relation to Dr Alexakis (CSTB586–7). The complaint was prepared by Dr Wroth and was filed with the HCCC on 28 June 2017. Dr Wroth began to prepare the complaint on 13 June 2017, following her consultation with Mr McClure (Wroth at [26]).

281. [367]

     On 12 September 2017, Detective Trevor Basily visited Mr McClure at his Strathfield Home and informed him of the HCCC complaint made against Dr Alexakis.

282. [368]

     The police note of that meeting records that Mr McClure was surprised to hear about the complaint and told Detective Basily the following: Dr Alexakis is not only his GP but also his close friend; he recently reviewed his will with his solicitor in the Sydney CBD but was upset when he discovered that the solicitor had put himself as a beneficiary on the will and he told this to Dr Alexakis; he agreed that Dr Alexakis’ lawyer, known as “Angelos”, would assist him with his will; he finalised a will with “Angelos” and appointed him as the executor; all decisions made in relation to his will were entirely at his own discretion and without any influence by any other person; Mr McClure confirmed that there are many others and not just three beneficiaries however he did not want to disclose who they are; and Mr McClure confirmed that Dr Alexakis is a beneficiary but said it was not true that Dr Alexakis is to receive 60% of his total estate (CSTB678).

283. [369]

     There is no evidence that Mr McClure reviewed his will with his solicitor in the Sydney CBD after the 2016 Will was executed. It is also unclear what Mr McClure meant by his discovery that the solicitor had put himself as a beneficiary on the will. I infer that Mr McClure may have viewed the clause in the 2016 Will that provided for Bull, Son & Schmidt Solicitors to act on the probate and administration of his estate as a “benefit”, which may have upset him and lead him to terminate Mr Foulsham’s retainer (as referred to at [107] above).

284. [370]

     I also note that Mr McClure’s statement that Dr Alexakis would not be receiving 60% of his estate was technically correct as the July Will provided for Dr Alexakis to receive the Strathfield Home, its contents and 90% of the residue. Mr McClure’s statement that there “were many others and not just three beneficiaries” creates an incorrect impression given there were only four beneficiaries under the July Will, the same number as under the June Will, with the only difference being that Ms Nasr was a beneficiary under the July Will and Ms M Schwanke was a beneficiary under the June Will.

285. [371]

     On Sunday, 17 September 2017, Dr Alexakis made a home visit to Mr McClure. His notes of that visit refer to an “ongoing upset re carer and has terminated her services”, that Mr McClure was advised to use “agency for WE” and to engage palliative care or nurse and dressing care, that it was okay to pass information onto palliative care and consider community nurse care, and Mr McClure harboured an “ongoing dislike for hospitals” (CB598).

286. [372]

     On 18 September 2017, Dr Alexakis contacted Ms Iskov and requested a review of Mr McClure and management of his leg wounds (MTB1554). Ms Menzies attended on Mr McClure the next day. Ms Menzies’ report records that Mr McClure agreed to a nurse visiting him daily for wound care (MTB1564).

287. [373]

     Dr Alexakis’ notes of his visit to Mr McClure on 18 September 2017 record that Mr McClure was upset that Ms Nasr could not dress his wounds anymore due to MRSA, that Dr Alexakis advised Mr McClure that the palliative care doctors and nurses were specialists and that Mr McClure needed to maintain his “Home Care” request (CB599).

288. [374]

     On 21 September 2017, police detectives attended on Dr Alexakis at the SFMC and spoke to him about the complaint. The police notes from that meeting record that Dr Alexakis told detectives the following: he regularly visited Mr McClure while he was in hospital; Mr McClure had expressed the need to get out of hospital due to the need to make business arrangements; Mr McClure required a lawyer to visit him at home; he had recommended Mr Andresakis to Mr McClure to help him review his will; Dr Alexakis was not aware of being a beneficiary of Mr McClure’s will; Mr McClure never discussed his will with him; he did not know of any other beneficiaries; and Mr McClure was independently assessed as mentally competent to make decisions for himself prior to his discharge from hospital (CSTB590).

289. [375]

     In cross-examination, Dr Alexakis gave evidence that he told the police that Mr McClure needed a lawyer to visit him in the hospital, not at home (T74.25–8).

290. [376]

     On 22 September 2017 at 7.51am, Mrs Alexakis made a call to Mr Skouteris that lasted 15 minutes (CSTB555). When asked about this call in examination-in-chief, Mr Skouteris said he did not recall any discussion with Mrs Alexakis or whether the call concerned the police and a problem with the McClure estate (T192.20–34).

291. [377]

     On 22 September 2017, police detectives spoke with Mr Andresakis. The police notes of that call record that Mr Andresakis told police the following: Dr Alexakis introduced him to Mr McClure to provide advice in relation to business dealings and a will; Mr McClure appeared sound, had all his wits about him to make important decisions and was not influenced by anyone regarding his will, including Dr Alexakis; Dr Alexakis was not present when Mr Andresakis attended on Mr McClure; and Mr Andresakis’ recount was consistent with information obtained from Mr McClure and Dr Alexakis (CSTB589).

292. [378]

     Mr Andresakis took a file note of his call with the police which records the name and contact number of “Trevor”, Mr McClure’s name, “HIC Complaint” and “Anonymous” (CB181).

293. [379]

     The police concluded their investigation with a finding of no criminality and advised the HCCC of that on 29 October 2017 (CSTB676–7). The police notes in evidence record the following (CSTB589):

294. [380]

     The HCCC pursued an investigation of Dr Alexakis and he was interviewed by the Medical Council on 29 November 2017 at a “section 150 hearing”.

295. [381]

     On 28 September 2017, Mr Myhill spoke with Mr McClure. Mr Myhill had contacted Mr McClure on 21 September 2017, when he called and introduced himself as a community palliative care social worker based at Concord Hospital. He told Mr McClure that he could provide counselling, organise support services at home, assist with funeral arrangements and organise a solicitor to visit regarding his will. As it was an awkward time for Mr McClure, Mr Myhill agreed to call him back.

296. [382]

     Mr Myhill had made contact with Mr McClure on the basis of a referral from Ms Iskov dated 11 September 2017 which stated that Mr McClure requested assistance with funeral planning and a solicitor. Mr Myhill deposed that Ms Iskov told him that Mr McClure wanted to see a solicitor in relation to his will (Myhill at [5]). Prior to speaking with Mr McClure, Mr Myhill reviewed the records of Mr McClure’s admission to the RPAH which alerted him to the fact that Mr McClure had made a will that included his GP as a beneficiary. He also spoke to Ms Homewood (referred to at [264]–[266] and [276] above) who confirmed that the RPAH staff were aware of that matter, were concerned with the GP’s conduct and considered the GP’s visits to Mr McClure to be unusual (Myhill at [6]).

297. [383]

     During Mr Myhill’s conversation with Mr McClure on 28 September, Mr McClure told Mr Myhill the following: he had no family; Mr Camilleri was a good friend but he did not want to burden him as his wife had died recently; Mr Camilleri held his power of attorney; Mr McClure lived off his own assets and managed his own finances; he wished to remain at home instead of going to the hospital; and he did not require assistance with his will as he was in touch with a solicitor and would be arranging it himself (Myhill at [10]–[18]). Pausing here, there is no evidence that Mr McClure was in touch with a solicitor about his will at this time, other than his contact with Mr Andresakis.

298. [384]

     Around this time, Dr Alexakis decided that he had to remove himself as Mr McClure’s GP.

299. [385]

     On 29 September 2017, Dr Alexakis saw Mr McClure and told him that he had to step away from being his GP and that the police had come to visit him and asked questions about Mr McClure. He deposed that Mr McClure told him that the police had visited him as well and he told them to go away.

300. [386]

     Dr Alexakis’ handwritten notes of his visit to Mr McClure that day record that Dr Alexakis told Mr McClure that due to a HCCC investigation Dr Alexakis would be withdrawing his services as Mr McClure’s GP and medical provider, and would not resume until the investigation was completed and all was clarified and that he explained to Mr McClure that the detective visit was part of the investigation. The notes also record that: Mr McClure was upset and angry at the police, the detective, the HCCC and the complaint maker; he was not too keen on Dr Spalding; he definitely did not want Dr Lim and the RPAH palliative care team; and he said to Dr Alexakis “you just don’t want to be my doctor”. Dr Alexakis’ notes record that he told Mr McClure that it was in the best interests of all for him to withdraw, it would be short-term, he would see Mr McClure the following afternoon as usual and, at this point, there was no change to the status of their relationship. He records that Mr McClure was “again” upset, anxious, angry and feels there is conspiracy against him and is unsure where it originated. Dr Alexakis’ notes of his visit the following day record that Mr McClure said he was not happy about Dr Alexakis stepping down.

301. [387]

     Also on 29 September 2017, Dr Alexakis sent a letter to Dr Mittal advising that he would be removing himself from the care of Mr McClure as his GP and he was in the process of organising a transition (CB607). The letter stated that this was not something that Dr Alexakis or Mr McClure wanted but, as Dr Alexakis’ care had been brought into question by an anonymous person or organisation, Dr Alexakis had to step down as his GP and Dr Mittel’s services might be called on more frequently until a replacement was found or until Dr Alexakis was investigated and cleared. The letter also outlined Mr McClure’s medical history and referred to swab results indicating MRSA.

302. [388]

     Dr Alexakis visited Mr McClure at home on 30 September and 1, 2, 3 and 4 October 2017.

303. [389]

     Dr Alexakis’ final home visit to Mr McClure was on 5 October 2017. Dr Alexakis’ notes of that visit record the following:

304. [390]

     In cross-examination, Dr Alexakis said that he mentioned Mr McClure’s will to him and referred to it in his note because the police had told him that a will had been made although he did not know the date it was made (T76.40–77.6).

305. [391]

     On 5 October 2017, Dr Alexakis sent another letter to Dr Mittal advising that he had retracted his services as Mr McClure’s GP, he would bring to the attention of the palliative care team that Mr McClure had MRSA and also referred to other matters, such as the need for a decision to be made on how to manage Mr McClure’s ulcers and infections and that his antibiotics would run out soon (CB605). That day, Dr Alexakis also spoke to Dr Potter to inform her he was withdrawing his care from Mr McClure (MTB1631).

306. [392]

     On 10 October 2017, Mr Andresakis couriered a letter to Mr McClure that referred to Mr Andresakis having been told by a police officer that Mr McClure and Dr Alexakis had been approached about an allegation of undue influence.

307. [393]

     The letter noted that Andresakis & Associates had acted for Dr Alexakis who had referred the firm to Mr McClure to assist in preparing his will and to provide advice generally, and went on to state:

308. [394]

     The letter from Andresakis & Associates to Mr McClure attaches a copy of the July Will and a tax invoice dated 10 October 2017 for $1,155 for attendances on 6 and 8 June and 5 and 10 July 2017.

309. [395]

     Mr Andresakis and Mr Skouteris were involved in drafting the letter (T193.29–41; T259.25–8). Mr Andresakis said that the letter was sent as he came to the view that Mr McClure needed to know about the serious allegations that had been raised by the police (Andresakis 2 at [31]; T259.37–41).

310. [396]

     On 17 October 2017, Mr McClure wrote to Andresakis & Associates enclosing a cheque in payment of the tax invoice (CB185).

311. [397]

     On 25 October 2017, Mr Myhill called Mr McClure at his Strathfield Home. Mr Myhill deposed that they discussed Mr McClure’s funeral arrangements and his will. He said that Mr McClure told him the following: he is a “private person”; he does not want everyone to know about his will; he had not followed through with finding a solicitor to see about changing his will; and he is unhappy with the existing will and wants to change it. Mr Myhill said that he gave Mr McClure the contact details for the New South Wales Law Society Solicitor Referral Service (Referral Service) in accordance with his usual practice and that Mr McClure told him he would call them (Myhill at [22]–[25]; CB937).

312. [398]

     On 27 October 2017, Dr Alexakis called Mr McClure. Dr Alexakis deposed that the purpose of this call, and other calls he made to Mr McClure on 8 and 18 October 2017, was to check up on Mr McClure’s health and welfare and to ask whether he had a new GP yet. Dr Alexakis said that during these conversations, Mr McClure said he was fine but that “I feel betrayed by you. I have no GP” and Dr Alexakis was aware that Mr McClure was upset with him for having withdrawn his care. He said that on 8 and 18 October 2017, he told Mr McClure that he would call again in 10 days’ time and to ring the SFMC if he needed urgent attention.

313. [399]

     Dr Alexakis said that during the call on 27 October 2017, Mr McClure said he had a new GP and Dr Alexakis told Mr McClure that he would not be calling again. He said that it was the last time he spoke to Mr McClure (Alexakis at [118]–[122]).

314. [400]

     In cross-examination, Dr Alexakis gave evidence that: he continued to call Mr McClure even though he had ceased providing medical services because Mr McClure had no GP; he informed Mr McClure that he had a duty of care to ensure his health while he had no GP; he referred Mr McClure to the palliative care team; and he told Mr McClure that he would be calling him at roughly 10 day intervals just to make sure he was fine and that this was all he did (T136.13–8).

315. [401]

     On 30 October 2017, Mr McClure was admitted to Concord Hospital for symptom management relating to a possible bowel obstruction (MTB1719; MTB1734).

316. [402]

     On 1 November 2017, Mr Myhill attended on Mr McClure at Concord Hospital. During that attendance they discussed Mr McClure’s funeral plans, his will and Dr Alexakis.

317. [403]

     Mr Myhill deposed that Mr McClure led the conversation and, after they spoke about funeral arrangements, Mr McClure told him that it was important that he make a new will as he was not happy with his current one, he made his previous will in the RPAH where he felt he was being kept and was not allowed to go home, and the only person he felt he could turn to was his GP. Mr Myhill deposed that Mr McClure then said that he had called the GP and asked for help to get home “and in return I encouraged him that I would put him in my will – I persuaded him.” Mr Myhill deposed that Mr McClure told him “the GP agreed to this arrangement” and arranged for a solicitor friend of his to come see Mr McClure to make his will, and the GP assisted him to arrange to go home from the RPAH and agreed to provide him with care at home.

318. [404]

     Mr Myhill also deposed that Mr McClure told him that after Mr McClure got home from the RPAH the police visited him about his will and also contacted the GP, and after that the GP contacted Mr McClure and said he could no longer be his GP “but that he was still my friend” (Myhill at [31]–[33]).

319. [405]

     Mr Myhill describes Mr McClure as seeming angry and agitated during the discussion and that he said, “I told him [the GP], ‘I withstood all that pressure and now you won’t do your job.’” Mr Myhill also said that Mr McClure referred to the GP as “my enemy”, that he wanted to remove him from his will and that the GP continued to call Mr McClure and knock on his door “calling out, ‘let me in, I’m still your friend’” after telling Mr McClure he could no longer be his GP, but Mr McClure did not want to see him.

320. [406]

     Mr Myhill gave oral evidence about his conversation with Mr McClure on 1 November 2017 as follows (T325.34–48):

321. [407]

     Mr Myhill prepared a progress note of his attendance on Mr McClure on 1 November 2017 which states (CB940):

322. [408]

     Mr Myhill gave oral evidence that from 1 November 2017 he had four or five similar conversations with Mr McClure around the theme of the “agreement” that the doctor would be put in the will. He said that Mr McClure said to Mr Myhill “we had an agreement”, referring to himself and his GP in the context of Mr McClure reflecting back on the day he made his will (T326.29–33; T327.1–5). Mr Myhill gave the following evidence (T326.35–44):

323. [409]

     During cross-examination, Mr Myhill accepted that his typed progress note of his attendance on Mr McClure on 1 November 2017 does not refer to any “agreement” and that Mr McClure said he persuaded the GP to do something (T335.39–50; T336.1–7). He gave evidence that he would defer to the accuracy of his typed progress note to the extent of any inconsistency with his affidavit or oral evidence and explained that, although his typed notes do not speak of Mr McClure telling him there was any agreement between he and the GP, he thought it was “implied” (T329.43–9; T325.45–8; T333.39–45; T335.39–336.3).

324. [410]

     During cross-examination, Mr Myhill also gave evidence that: Mr McClure mentioned that Mr Camilleri was in the will but Mr Myhill did not recall him mentioning tenants, Irmgard, Hildegard, the Schwankes, Polish people or German people (T327.15–32); the only will Mr McClure talked about was a will he made while at the RPAH and that he did not believe that Mr McClure had made a further will (T330.5–8); and Mr Myhill had the impression that Mr McClure was telling him things he wanted Mr Myhill to know and at times fobbed him off or would not answer questions that were put to him (T330.13–8).

325. [411]

     The defendants rely on Mr Myhill’s account of his conversation with Mr McClure in support of their contention that Dr Alexakis had an arrangement or understanding with Mr McClure that Mr McClure would name Dr Alexakis as a beneficiary under his will in return for Dr Alexakis helping Mr McClure to leave the RPAH and thereafter providing care for him at home, matters which Dr Alexakis denies.

326. [412]

     On 6 November 2017, Mr Myhill saw Mr McClure who told him that he did not want to contact a solicitor from the Referral Service until he had done research and decided which charities to include in his will. During this meeting, Mr McClure agreed that Mr Camilleri should be listed as his contact person because he did not consider that he had any next of kin.

327. [413]

     On 8 November 2017, Mr McClure was admitted to the palliative care ward in Concord Hospital.

328. [414]

     On 9 November 2017, Dr Spalding visited Mr McClure who told her that he had a new GP, he could see now that his relationship with Dr Alexakis was not good, it was a mistake for Dr Alexakis to have helped him find a solicitor to do his will and Mr Myhill was assisting him to make a new one.

329. [415]

     On the morning of 10 November 2017, Mr Myhill attended on Mr McClure who told him that he needed to make his will urgently because his health was deteriorating dramatically. Mr McClure told Mr Myhill that he had called Mr Camilleri to ask him to come with a solicitor to make a new will, he had been very private about his will in the past, he did not even like people knowing he had a will but he felt it was time to talk to Mr Camilleri about it, and that he was happy for Mr Myhill to talk to Mr Camilleri when he got there.

330. [416]

     Mr Camilleri gave evidence that after Mr McClure went into hospital, he visited Mr McClure a couple of days each week and was sometimes accompanied by Mrs H Schwanke.

331. [417]

     Mr Camilleri gave evidence, which I accept, that Mr McClure told him that he needed to do a new will and asked him to get a solicitor, and that Mr McClure raised this with him on more than one occasion but did not tell him why he wanted to make a new will (Camilleri at [90] and [93]).

332. [418]

     Mr Camilleri also said that when he first started visiting Mr McClure he was informed by a social worker that Dr Alexakis was visiting Mr McClure on a regular basis and he asked Mr McClure why his GP was coming there often to which Mr McClure replied that he was taking care of him and making sure he was okay (Camilleri at [86]). In my view, Mr Camilleri is likely mistaken in his recollection of his discussions with the social worker and Mr McClure as there is no evidence to suggest that Dr Alexakis visited Mr McClure in Concord Hospital after Mr McClure’s admission on 30 October 2017.

333. [419]

     Mr Camilleri deposed that in early November 2017 he had a conversation with Mr McClure in which Mr McClure said that since Mr Camilleri had been away his GP had been visiting and giving him support to make him feel better, the GP had helped him a lot including to make a new will, he had included the GP in his will because he did some favours for Mr McClure and the GP got him out of the RPAH. Mr Camilleri deposed that he asked Mr McClure whether he left everything to “the Dr” and Mr McClure replied that he “just left him something. But whatever you do, if I die keep away from the doctor” (Camilleri at [91]).

334. [420]

     Mr Camilleri deposed that in one of their discussions in September 2017, Mr McClure told him the following: he had made a new will “because I was under pressure from my Greek GP. He did me a lot of favours, I wanted to give him something to say thanks”; his GP got him out of the RPAH, which Mr McClure described as a “terrible place”; the GP was visiting him most nights; the GP helps with appointments and shopping; he left him something but not everything, “just… something to say thank you”; and the GP had been caring and doing things for Mr McClure that Mr Camilleri used to do before Mr Camilleri’s wife became sick. I do not accept that this conversation took place in September 2017 and have some doubts that it and the discussion referred to in [419] above are entirely accurate. This is particularly having regard to Mr Myhill’s evidence at [421] and [423] below, Mr Camilleri’s evidence at [425], the frailty of human memory and Mr Camilleri’s self-interest in these proceedings. I place more weight on Mr Myhill’s evidence about statements made by Mr McClure at this time.

335. [421]

     Later in the morning of 10 November 2017, Mr Myhill met with Mr McClure and Mr Camilleri. Mr Camilleri told them that the earliest he could arrange for a solicitor to attend on Mr McClure was on 13 November 2017 and suggested that if Mr McClure was worried about dying over the weekend, he could use a will kit. When Mr Camilleri left Mr McClure’s room, Mr Myhill said to Mr McClure that it was probably preferable to have the new will done by a solicitor rather than using a will kit. At that time, Mr McClure told Mr Myhill that he did not want Mr Camilleri to “know about my other will” and asked Mr Myhill to call the Referral Service, which he did. Mr Myhill told Mr McClure about a solicitor who could come but the solicitor’s terms (which involved the deposit of funds into the solicitor’s trust account prior to any meeting, a phone call and two visits) were unacceptable to Mr McClure (Myhill at [57]–[65]).

336. [422]

     As events transpired, the appointment that Mr Camilleri had arranged with the solicitor, Quoc Nguyen, was moved from 13 to 15 November 2017.

337. [423]

     Prior to that meeting, Mr McClure agreed to Mr Myhill contacting Mr Nguyen to provide him with the background information Mr McClure had told Mr Myhill, although Mr McClure said that he did not want him to tell Mr Camilleri about his existing will. On 14 November 2017, Mr Myhill spoke to Mr Nguyen to relay what Mr McClure had said regarding how the existing will came into existence and said that Mr McClure did not want Mr Camilleri knowing about the current will and that Mr Nguyen may need to assess Mr McClure’s capacity.

338. [424]

     On 15 November 2017, Mr Nguyen met with Mr McClure at Concord Hospital after being introduced to him by Mr Camilleri. He did not obtain Mr McClure’s instructions to make a new will. Mr Nguyen was not called to give evidence so it is unclear what transpired in that meeting.

339. [425]

     According to Mr Camilleri, after about 30 minutes Mr Nguyen came out of Mr McClure’s room and told him that Mr McClure had terminated the meeting. Mr Camilleri said that Mr McClure told him that Mr Nguyen was taking too much time and to get someone else.

340. [426]

     Mr Myhill also spoke to Mr Nguyen after his meeting with Mr McClure. Mr Myhill deposed that Mr Nyugen said that Mr McClure appeared “on the ball”, abruptly ended the conversation and, after asking Mr Nguyen what he knew about his previous will, told him that he did not want him to take instructions for a new will or for him to return another time. The next day, Mr McClure told Mr Myhill that Mr Nguyen had been mucking around and taking too long so he “sent him packing” but that he still wanted to make a new will. Mr McClure also told Mr Myhill that he had told Mr Camilleri about the current will and what happened with the GP, he may die before a new will is made and the doctor will “get it”, and he did not want his brother or his relatives to get anything (Myhill at [75]).

341. [427]

     On 17 November 2017, Mr Myhill attended on Mr McClure at his request. This was the last time Mr Myhill saw Mr McClure. Mr Myhill described Mr McClure as confused, anxious and fearful. He said that Mr McClure still wanted to make a new will and told him that he had asked Mr Camilleri to find him another solicitor. Mr Myhill said to Mr McClure that it may not be appropriate to do so that day and called Mr Camilleri to tell him that it was not appropriate for Mr McClure to make a new will in his confused state (Myhill at [80]).

342. [428]

     Mr Camilleri contacted another solicitor, Dean Mitchelmore (who had witnessed the 1986 will), about attending on Mr McClure. Mr Mitchelmore attended the Concord Hospital on either 17 (Camilleri at [99]) or 20 (CB957) November 2017 and determined that Mr McClure did not have capacity to prepare a will.

343. [429]

     Mr McClure died on 21 November 2017.

344. [430]

     The evidence presents a consistent and compelling picture of Mr McClure’s character and the manner in which he approached matters such as will-making. It also provides insight into Mr McClure’s vulnerability and his risk of undue influence from Dr Alexakis.

345. [431]

     As to his character, Dr Spalding described Mr McClure as “secretive and private, suspicious, and avoided seeing doctors unless absolutely necessary… polite… but at times… abrupt and… easily offended” (Spalding at [22]). Her observations about him did not change throughout the time she was involved in Mr McClure’s treatment and care (T423.18–44). Dr Spalding’s letters to Dr Alexakis also refer to Mr McClure needing to take time to develop relationships and build trust, and having a very small social circle.

346. [432]

     Dr Spalding described Mr McClure as someone who had some “interpersonal difficulties” in the sense that he needed somebody who was going to be calm and listen to what he had to say. He was a person who only told her and others what he wanted them to hear and was selective in the information he provided, although she did consider that he had no reason not to tell the truth and believed he told her the truth as “he was pretty consistent about how he felt about things going through those consultations”. He prioritised his independence, chose not to have treatments which may have prolonged his life and wanted to live as independently and normally as possible (T423.41–4; T424.3–7; T426.23–32; T427.47–50).

347. [433]

     Dr Spalding’s observations of Mr McClure are consistent with the evidence given by the parties and other non-party witnesses.

348. [434]

     Mr Evans described Mr McClure as an extremely private and determined person with definite views; someone who did not like people, had very few friends in his life and did not like leaving his home. Consistent with Dr Spalding’s description of Mr McClure’s suspicious nature, Mr Evans gave evidence that Mr McClure had told him that he felt like he was a target, he was better off in his home where no one could get to him and he was concerned about “…a guy across the road. He’s always wanting to know what I’m up to. He’s trouble” (Evans at [17]). He referred to Mr McClure as protective of himself and his home, and fearful of venturing out on his own (T311.4–312.41).

349. [435]

     Dr Fernandes said that in many respects Mr McClure was a very private person. He described him as candid, blunt and very clear with his opinions (T437.40–50).

350. [436]

     Dr Lim said that Mr McClure did not appear to have many friends. She described him as a person who talked a lot but chose what he talked about, he was alert to protecting himself from others, he was only going to tell the doctors what he wanted to tell them and, during the meeting on 13 June 2017, he sometimes dodged questions (T361.46–362.1; T355.44–7; T365.24).

351. [437]

     Mr Myhill also referred to Mr McClure being a private man who had been socially isolated for a long time and agreed that Mr McClure fobbed him off or would not answer his questions at times. He gained the impression that Mr McClure told him what he wanted him to know (Myhill at [23] and [48]; T330.11–8).

352. [438]

     Dr Alexakis’ evidence about Mr McClure is consistent with this. He described Mr McClure as a loner with very few friends, unsuccessful in friendships and as a high functioning, strong willed and intelligent individual. He was aware that Mr McClure had a distinct distaste for hospitals and was a patient who expressed his likes and dislikes about management options (T41.30; T137.1–7; Alexakis at [24] and [31]). Dr Alexakis was aware that Mr McClure had an interest in finance, the stock market and politics, and that he had a love of Greece. He gave evidence that his time spent treating Mr McClure at the SFMC focused on attending to his medical needs and he gained more insight into Mr McClure’s personal life and interests when he started to visit him at the RPAH and at home (Alexakis at [32]–[38]).

353. [439]

     Mr McClure’s suspicious nature and tendency to mistrust are also demonstrated by the statements he made to others, as recorded in the documentary evidence (see, for example, the RPAH notes made by Drs Betts and Chan set out at [184]–[185] above, the records of his interactions with Ms Farley at [254]–[255] above and his statements to the RPAH doctors on 22 June 2017 at [272] above), and his apparent reluctance to have other people in his home, as expressed in his conversations with Drs Spalding and Alexakis (at [333] and [359]).

354. [440]

     Consistent with his private nature, Mr McClure was reluctant to discuss his private affairs, including his wills, with others. He did not want to discuss these matters with the social worker at the RPAH (at [178] above) and was initially reluctant to engage with the doctors about his wills at the consultation on 13 June 2017. He told Mr Myhill that he did not like people knowing about his wills and he did not tell Mr Camilleri what he got or did not get or what anyone else was getting under his wills other than in November 2017, when Mr Camilleri asked Mr McClure whether he had “left everything to the doctor” to which Mr McClure replied that he left him something without saying how much (T303.1–304.2).

355. [441]

     The evidence indicates that Mr McClure looked after his own accounting and financial affairs. Mr McClure’s discussions with the medical staff at the RPAH on 2 and 13 June 2017 (at [187] and [244] above) indicate an awareness and understanding of his affairs, and a strong desire at that time to go home to undertake work on them. There is no evidence that he had a trusted advisor to assist him with such matters.

356. [442]

     Likewise, Mr McClure did not have a trusted lawyer to whom he could readily turn when he wished to create a new will. His prior wills were prepared by three different sets of lawyers. The 2007 will was prepared by the Public Trustee. Mr McClure expressed negative views about the Public Trustee to Dr Alexakis which I infer were based on the sentiments expressed in Mr McClure’s note of his attendance on the Public Trustee on 25 June 2008 (referred to at [102] above). The 2012 will and 2016 Will were prepared by Shephard & Shephard and Bull, Son & Schmidt respectively, whose retainers were subsequently terminated by Mr McClure.

357. [443]

     When Mr McClure wanted to make a new will, he sought assistance from those he knew and trusted. He had asked Mr Evans to refer him to a solicitor in relation to his 2012 will and 2016 Will and Mr Evans did (Evans at [21]). In the three weeks prior to his death, Mr McClure asked Mr Camilleri to get him a solicitor and Mr Camilleri did (Camilleri at [90]). Mr McClure was offered, but did not accept, assistance in obtaining legal advice through the RPAH’s social work service (T439.40–9). Dr Alexakis’ evidence that Mr McClure pressed him for assistance in finding and introducing him to a lawyer and wanted him to arrange the meetings with Mr Andresakis is in keeping with Mr McClure’s character and past conduct, and I accept it.

358. [444]

     Beyond the dispositions made to Dr Alexakis under the 2017 Wills, Mr McClure’s history of will-making demonstrates an independent-minded and somewhat unpredictable approach to his testamentary decisions. He excluded Mr Camilleri from the 2016 Will; he excluded Ms M Schwanke from the July Will; and he left a gift to Ms Nasr under the July Will when she had been caring for him for approximately eight days.

359. [445]

     The contents of Mr McClure’s note of his attendance on the Public Trustee in 2008, his dealings with Mr Nyugen and his refusal to do business with the lawyer recommended by Mr Myhill in November 2017 suggest that Mr McClure was a man who quickly formed strong views about lawyers and would act on them accordingly.

360. [446]

     The evidence also paints Mr McClure as someone whose views of matters seemed to be driven by emotion and did not always reflect the reality of the situation, and as an individual who expressed such views at different times and to different people. For example, within four days, Mr McClure told Ms Lennon that his GP was contacting a lawyer for him (at [178] above), told Dr Fernandes that Dr Alexakis was arranging an accountant for him (at [187] above) and told Ms Breen that he was contacting the lawyer who had made his last will (at [189] above). He described Dr Alexakis as the only person he could trust to some but to others he referred to that person as “Frank” (at [188] and [332] above). During the period from 13 to 22 June 2017, Mr McClure complained that the RPAH was keeping him a prisoner, his wallet and keys had been stolen by hospital staff and the hospital wanted to destroy him, but he also told Dr Lim that the RPAH was the best hospital that he had been to in his life (at [254]–[255], [263] and [272]). The statement that Mr McClure was receptive to engaging private services at home for 24 hour care was also at odds with his desire for privacy and his decision to retain Your Choice for only five hours each day (at [263] and [295]).

361. [447]

     Mr McClure’s firm desire to be at home and not in hospital despite his terminal illness is clear from the evidence. Mr McClure’s single-mindedness in relation to this matter is apparent from his decisions to discharge himself from Concord Hospital in 2015 and 2017 (at [124] and [160] above), and the Code Black incident at the RPAH on 13 June 2017 (at [251] above). He was a person who was determined to do what he wanted even when it may not have been in his best interests. In my view, Mr McClure’s offer of $10,000 to Dr Alexakis to help him abscond is indicative of his immense desire to get home and speaks of a somewhat desperate and vulnerable man.

362. [448]

     Dr Wroth’s evidence in cross-examination that in her opinion Mr McClure was vulnerable in relation to his personal circumstances because he was in hospital, unwell, dependent on others for care and aware that he had a life-limiting diagnosis and that admission to hospital might indicate the end of his life was persuasive and I accept it. I also accept her evidence that his personal circumstances might mean that he would make a decision or take action that was not necessarily in his own interests, and that the “Code Black” incident was indicative of Mr McClure’s distress at the time, being fed up with being in hospital and wanting to go home. She believed that he made a decision in frustration which was not in his best interests and it was indicative of his vulnerability and risk of exploitation (T385.12–24; T385.40–4; T387.47–388.40).

363. [449]

     As to Mr McClure’s relationship with Dr Alexakis, the evidence indicates that Mr McClure relied on Dr Alexakis and regarded him as a friend as well as his trusted GP. Mr McClure trusted Dr Alexakis and relied on him to visit him in the RPAH, to relay his views to Dr Spalding and the staff at the RPAH, and to provide medical care after his discharge (see at [172], [262] and [288] above).

364. [450]

     Mr McClure’s regard for and trust in Dr Alexakis is evidenced by: the letter he sent to Mr Camilleri in which he referred to wanting to speak to his “Greek GP” (at [129] above); the call he made to Dr Alexakis when he left the RPAH on 16 May 2017 without notifying the hospital or taking any discharge notes or medications with him (at [160]–[161] above); and the fact that Dr Alexakis was the one Mr McClure turned to and called when he was in the RPAH, rather than Mr Camilleri or Mrs H Schwanke. Dr Spalding’s description of Dr Alexakis as “central to Mr McClure’s affairs” (at [179] above) is an apt observation and I accept it.

365. [451]

     Dr Alexakis was aware that Mr McClure placed trust in him and considered him to be a friend (T155.39; T142.44). He accepted that he was a “central pillar” in Mr McClure’s care regime as at 10 July 2017 and through “a lot of his time” (T126.32–3).

366. [452]

     I accept that there was a power imbalance between Mr McClure and Dr Alexakis and that Mr McClure was vulnerable to his influence. In addition to the position of ascendancy that Dr Alexakis had over Mr McClure as a doctor in which he reposed trust, in my view, Dr Alexakis’ position of influence was heightened in this case by Mr McClure’s terminal illness, social isolation, suspicious nature and his strong desire to be out of hospital and cared for at home. During his admission to the RPAH, Mr McClure appeared to rely on Dr Alexakis for all his social interactions, for friendship and as a conduit to arrange services for legal and discharge-related matters. I accept Dr Wroth’s evidence that it was likely that Mr McClure was flattered by Dr Alexakis’ attention while he was in the RPAH and that this increased the risk that Mr McClure believed he was receiving extra attention, and that Mr McClure’s dependence on Dr Alexakis for his medical, personal and social care gave rise to a power imbalance between them that made Mr McClure vulnerable to Dr Alexakis’ influence (T397.19–28).

367. [453]

     In my view, Mr McClure’s dependence on Dr Alexakis increased after his discharge from the RPAH due to his reluctance to have persons other than Ms Nasr and Dr Alexakis attend on and provide care to him at the Strathfield Home.

368. [454]

     Mr McClure’s medical condition, Dr Alexakis’ oral evidence and the contents of his home visit notes satisfy me that Dr Alexakis’ visits to Mr McClure at the Strathfield Home were clinically indicated and involved the provision of medical care to Mr McClure. However, the volume and timing of the phone calls between Dr Alexakis and Mr McClure after Mr McClure’s discharge from the RPAH, together with Dr Alexakis’ evidence that he assisted Mr McClure with personal tasks such as meals and travelling to the post office, suggest that Dr Alexakis provided care and assistance to Mr McClure of the nature that could be expected from a friend or paid carer and beyond that which a GP would typically provide in a usual doctor and patient relationship (as Dr Wroth indicated at T397.19–28).

369. [455]

     That said, I do not consider that Mr McClure was so old, frail or enfeebled that he did not possess sufficient mental independence or resilience so as to deprive him of agency or render him incapable of resisting suggestions and advice from Dr Alexakis or others in June and July 2017. The evidence demonstrates that Mr McClure was capable of rejecting advice from Dr Alexakis on numerous occasions after his discharge from the RPAH: see, for example, Dr Alexakis’ home visit notes for 10 and 18 July 2017 and Mr McClure’s rejection of hospital interactions which, as Dr Alexakis described in cross-examination, was nothing new having regard to Mr McClure’s conduct in 2015 (T126.42–3).

370. [456]

     Further, in my view, the following facts are relevant to an assessment of the degree of influence that Dr Alexakis had over Mr McClure and demonstrate a degree of energy, independence of thought, robustness and agency on the part of Mr McClure: Mr McClure spoke regularly about wanting to make a will and taking steps to make that happen; Mr McClure made it clear to multiple persons that he did not want to benefit the Salvation Army; a solicitor was interposed between Dr Alexakis and Mr McClure; Mr McClure was able, in the absence of Dr Alexakis, to express his views about his wills to a solicitor, doctors at the RPAH and a member of the NSW Police, and to answer direct questions about his will-making process including in relation to Dr Alexakis’ involvement; and Mr McClure was able to pick and choose his own solicitor.

371. [457]

     In conclusion, I am satisfied that Dr Alexakis had the power to influence Mr McClure and there was an imbalance in their relationship but find that Mr McClure was not so weak, frail or powerless to withstand pressure from Dr Alexakis about all matters relating to his medical care and affairs.

372. [458]

     Mr Debnan was a patient of Dr Alexakis from around mid-1990. He was not married, had no family and died on 18 October 2014 leaving a will dated 27 August 2005 that named Dr Alexakis as the executor and sole beneficiary of his estate (Debnan Will).

373. [459]

     Dr Alexakis first met Mr Debnan when he was living in a boarding house in Strathfield. Dr Alexakis refers to Mr Debnan having a very close friend “Laurie” who was also a patient at the SFMC and who predeceased Mr Debnan.

374. [460]

     According to Dr Alexakis’ evidence, Mr Debnan and Laurie had burial plots next to each other. He said that Mr Debnan was manipulated and coerced to sign over his burial plot to another boarder while he was living at the boarding house. He gave evidence that Mr Debnan was upset and asked him to find a solicitor to help, and that he telephoned Andresakis & Associates and introduced Mr Debnan to Mr Skouteris, whom Dr Alexakis had never met.

375. [461]

     Dr Alexakis deposed that he made home visits to Mr Debnan, including on weekends, and on occasion took his children with him. He also said that he assisted Mr Debnan to move into a high care facility when his mobility deteriorated and his nursing care requirements increased and describes them as friends.

376. [462]

     Mr Skouteris first met Mr Debnan at the boarding house after an introduction from Dr Alexakis who told him that he had a patient who needed legal advice. He recalled that Mr Debnan had been assaulted or robbed at the time.

377. [463]

     Following his initial visit to Mr Debnan, Mr Skouteris prepared a will for Mr Debnan in accordance with his instructions which provided for Dr Alexakis to be named executor and sole beneficiary. Mr Skouteris’ evidence, which I accept, is that he did not discuss Mr Debnan’s will or its contents with Dr Alexakis during Mr Debnan’s lifetime.

378. [464]

     On 20 May 2015, Dr Alexakis was granted probate of the Debnan Will and he received approximately $80,000 from his estate. Mr Skouteris acted on the probate application.

379. [465]

     Dr Alexakis was aware that Mr Debnan saw Mr Skouteris and created a power of attorney appointing Dr Alexakis as his attorney. His evidence is that he was made aware from Mr Debnan that he had made a will with Mr Skouteris but was not aware that he was a beneficiary until he read the will after Mr Debnan’s death.

380. [466]

     Mr Andresakis gave evidence, which I accept, that Dr Alexakis did not introduce Mr Debnan to him and he only became aware that his firm had prepared a will for Mr Debnan in early 2021 (T207.29–34).

Validity of the 2017 Wills and the Impugned Clauses

1. [467]

   The Court must first determine whether the July Will (with or without the Impugned Clauses), or alternatively the June Will (with or without the Impugned Clauses), is Mr McClure’s last valid will. It is only if one of them is found to be valid in its entirety that the defendants’ equitable claims for relief, which seek the imposition of a constructive trust over the gifts to Dr Alexakis, arise.

2. [468]

   As already noted, there is no challenge on the ground that Mr McClure lacked testamentary capacity. There is also no dispute that each of the 2017 Wills were duly executed.

3. [469]

   Broadly, the issues raised are:

4. [470]

   It would usually be appropriate to work backwards from the most recent will to identify a testator’s last valid will. However, in this case, as the defendants relied on a course of conduct by Dr Alexakis and contended that issues with the June Will “infected” the July Will, when considering some of the issues below, I start with the June Will and then deal with the July Will.

5. [471]

   The Salvation Army and the Schwankes referred to various matters which they allege are suspicious circumstances attending to the making of the 2017 Wills to support their claims that Mr McClure did not know and approve of the contents of the 2017 Wills or the Impugned Clauses. These matters can be summarised as follows:

6. [472]

   The Salvation Army submitted that the suspicious circumstances fall into the extreme category and cast a heavy onus on Dr Alexakis to establish that Mr McClure comprehended and understood the contents and effect of each of the 2017 Wills. It was submitted that Dr Alexakis failed to discharge that burden as Mr McClure did not understand the concept of devising his estate in percentage shares as opposed to dollar amounts, particularly as it was not discussed that it would involve the devise of, for example, 65% of a $15 million estate.

7. [473]

   The Schwankes’ submissions focused on the Impugned Clauses and relied on the matters outlined at [471] above. They submitted that it is apparent from the evidence that Mr McClure intended to and was aware that he revoked his 2016 Will when he made the June Will, and that there are no suspicious circumstances attending to the clauses of the 2017 Wills that make dispositions to Mr Camilleri and the Schwankes. They submitted that the Salvation Army has not satisfied its onus of establishing that Mr McClure was unaware of and did not have knowledge and approval of these gifts (Outline of Closing Submissions for the Third and Fourth Defendants at [5]–[6], [11]–[13] and [26]). They also submitted that the Court would have more concerns with the July Will as the suspicious circumstances are less in respect of the June Will (T560.35–9).

8. [474]

   Dr Alexakis’ primary contention was that all he did in the will-making process was introduce Mr Andresakis into the matrix which he submitted, on its own, is not a suspicious circumstance even though there was an ongoing relationship between them. He accepted that if the Court found, contrary to Dr Alexakis’ account of events, that there were conversations between Dr Alexakis and Mr McClure during which matters were put into Mr McClure’s head regarding beneficiaries and entitlements then the Court might find a suspicious circumstance. However, the fact that there was a relationship between Dr Alexakis and Mr McClure was not, of itself, suspicious because inevitably all beneficiaries are likely to have a relationship with the relevant testator (T471.50–472.20).

9. [475]

   Dr Alexakis contended that, in any event, he has established that Mr McClure knew and approved of the contents of his will. Emphasis was placed on Dr Alexakis not being present on the occasions when instructions for the 2017 Wills were given nor when they were executed. He also relied on Mr Andresakis’ evidence, argued that Mr McClure was very alert and “batted away questions and answers” on 13 June 2017, and pointed to the fact that Mr McClure had the opportunity to express his real intentions over many months and he did so.

10. [476]

    It is settled that before a will is admitted to probate, the propounder of the will must establish that it was executed with the testator’s knowledge and approval: Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 (Lewis v Lewis) at [2], per Leeming JA (with whom Meagher and Payne JJA agreed).

11. [477]

    Where testamentary capacity and due execution is established, a presumption is enlivened that a testator knew and approved of the contents of their will at the time of execution. That presumption may be displaced by circumstances that give rise to a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In that case, the Court must be affirmatively satisfied that the testator knew and approved the contents of their will and, in some cases, appreciated the effect of what they were doing such that it has been demonstrated that the will contains the testator’s real intention and is their true will: Tobin v Ezekiel at [46]–[47] and [55], per Meagher JA (with whom Basten and Campbell JJA agreed); Lewis v Lewis at [186].

12. [478]

    It has been said that the suspicious circumstances rule “does not operate at large”: Tobin v Ezekiel at [55]. The suspicious circumstances should be capable of throwing light on whether the testator knew and approved of the contents of their will: Tobin v Ezekiel at [55]. The fact that a person is a substantial beneficiary who wrote and took part in the preparation of the will is a usual and familiar instance of a suspicious circumstance and calls for vigilant and close examination of the evidence as to the testator’s understanding and approval of their will: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 (Nock v Austin) at 528, per Isaacs J.

13. [479]

    Other factors include: the extent of the physical and mental impairment of the testator; whether the executed document constitutes a significant change from prior wills; whether the will generally seems to make testamentary sense; whether the truthfulness of the party seeking to benefit from the will is undermined by findings that they have lied about matters relating to the giving of instructions or execution of the will; whether the circumstances suggest undue influence or fraud such that the influence might have resulted in the testator signing an instrument where its contents were to some extent unknown or where they were mistaken about its contents as they were misled: Tobin v Ezekiel at [47], [51] and [53]; Romascu v Manolache [2011] NSWSC 1362 at [205], per Hallen AsJ.

14. [480]

    The cogency of evidence that is sufficient to dispel the suspicion or doubt will also depend on the circumstances of the case. The fact that a will has been prepared by a solicitor and read to the testator may be powerful evidence that it represents the testator’s intentions but it is not conclusive. As expressed in Tobin v Ezekiel by Meagher JA (with whom Basten and Campbell JJA agreed) at [47]–[48] (citations omitted):

15. [481]

    In Stojic v Stojic [2018] NSWCA 28 at [136], White JA (with whom Meagher and Payne JJA agreed) expressed the test in the following terms:

16. [482]

    Establishing the “righteousness of the transaction” does not require some kind of moral judgement by the Court but requires the Court to be satisfied that the will reflects the testator’s real testamentary intentions or their “true” will. As Leeming JA (with whom Meagher and Payne JJA agreed) observed in Lewis v Lewis at [19]:

17. [483]

    A testator may know and approve the contents of their will even though the will does not reflect their true intention because its preparation is tainted by undue influence or fraud. Approval in this context concerns whether the testator has given assent to the contents of the will of which they have full appreciation. Approval does not require that it be shown that the testator was not unduly influenced or the approval was obtained by fraud: Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 (Veall v Veall) at [197], per Santamaria, Beach and Kyrou JJA.

18. [484]

    The distinction between knowledge and approval on one hand and undue influence and fraud on the other was illustrated by Lord Cranforth in Boyse v Rossborough (1857) 6 HL Cas 2; (1957) 10 ER 1192 (Boyse v Rossborough) at 1209–10 as follows:

19. [485]

    Thus, evidence that satisfies knowledge and approval does not need to be sufficient to allay suspicion of undue influence or fraud. The distinction between the enquiries as to whether a testator knew and approved the contents of their will and whether it was procured by undue influence or fraud is a reason why it is appropriate to consider any issue as to suspicious circumstances and proof of knowledge and approval before addressing any ground of objection on which an opponent of the will bears the onus, such as undue influence or fraud: Nock v Austin at 528; Tobin v Ezekiel at [51] and [55]; Veall v Veall at [193]–[194].

20. [486]

    In Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 (Mekhail v Hana) at [164]–[173], Leeming JA (with whom Basten JA and Emmett AJA agreed) referred to a “preferred approach” of determining probate cases by reference to the entirety of the evidence and by drawing whatever inferences are available, rather than proceeding by reference to presumptions and shifting onuses.

21. [487]

    His Honour endorsed the observations of Lord Neuberger MR in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [21]–[22], where his Lordship questioned the value of the two-stage approach to determining probate matters which requires consideration of whether the circumstances excite suspicion and then, if they do, consideration of whether the suspicions have been allayed. His Lordship espoused that the Court should consider all the relevant evidence available and, drawing such inferences as it can from the totality of that material, decide whether those propounding the will have discharged the burden of establishing that the testator knew and approved of the contents of the will which is put forward as a valid testamentary disposition.

22. [488]

    In Mekhail v Hana, Leeming JA stated at [167]:

23. [489]

    His Honour agreed with similar sentiments expressed by Lindsay J in his extra-judicial writing: 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. Lindsay J expressed the same sentiments in Re Estate Rofe [2021] NSWSC 257 (Rofe) at [117]–[118], as follows:

24. [490]

    In Mekhail v Hana at [172], Leeming JA stated that a further reason telling against the operation of presumptions and shifting onuses is the possibility of a dispute as to when the presumption arises. In Lewis v Lewis at [188], Leeming JA referred to his comments in Mekhail v Hana but did not consider it necessary or appropriate to consider the general matters raised in that case as undue influence was not run at trial: see also, Lim v Lim [2023] NSWCA 84 at [13]–[15], per Kirk JA (with whom Bell CJ and Griffiths AJA agreed).

25. [491]

    Thus, although there has been some judicial endorsement of an approach to determining probate cases where the Court makes findings and draws inferences on the whole of the evidence, the question of the utility of presumptions, shifting burdens and the scope of the suspicious circumstances rule has not yet been resolved by the Court of Appeal.

26. [492]

    The parties addressed the issue of knowledge and approval by reference to legal principles that recognise the two-stage process. I have considered the issues on that basis although I have approached my determination of knowledge and approval (and the issues of undue influence and fraud) by reference to the evidence as a whole.

27. [493]

    As to suspicious circumstances, there are various matters which, when taken together, are sufficient to rebut the presumption arising from Mr McClure’s due execution of the June Will. Those matters are as follows: Dr Alexakis introduced Mr McClure to Mr Andresakis, whose firm had Dr Alexakis and his wife as established clients; Dr Alexakis arranged the meetings between Mr McClure and Mr Andresakis on 6 and 8 June 2017 and participated in calls with Mr Andresakis on 6, 7 and 8 June 2017; Dr Alexakis made regular visits to Mr McClure at the RPAH prior to the making of the June Will; Dr Alexakis was Mr McClure’s GP and a substantial beneficiary under the June Will; Mr McClure was old and in poor health; and the June Will provided for Mr McClure’s estate to be divided into percentage shares which, according to Dr Fernandes’ evidence (at [245] above), Mr McClure did not naturally understand could be done. These facts require the Court’s careful scrutiny of the evidence as to Mr McClure’s appreciation and approval of the contents and effect of the June Will.

28. [494]

    The additional suspicious circumstance in relation to the July Will is the inconsistency between Mr McClure’s instructions pertaining to the substitutional gift of Mrs H Schwanke’s bequest and cl 2D(iii) of the July Will.

29. [495]

    I do not assess the suspicious circumstances relating to knowledge and approval as falling into the most extreme category. This is primarily because Dr Alexakis was not present at the meetings on 6 and 8 June or 5 and 10 July 2017 when instructions were given for the preparation of the 2017 Wills and they were executed. I am also satisfied that Mr McClure, not Dr Alexakis, was the source of the instructions given to Mr Andresakis for the 2017 Wills and that Dr Alexakis was not involved in the preparation, drafting or execution of those wills, other than arranging the appointments for Mr McClure to meet with Mr Andresakis on 6 and 8 June 2017 and possibly arranging the 5 and 10 July meetings.

30. [496]

    I do not accept the submission of the Salvation Army and the Schwankes that Dr Alexakis was instrumental in giving instructions for the making of the June Will. This submission relies on Dr Wroth’s evidence about what Mr McClure told her on 13 June 2017 (as set out at [246]–[247] above). It was submitted that Dr Alexakis’ conversations with Mr McClure, in which he suggested that Mr McClure change his will and delete the Salvation Army, governed the testamentary instructions Mr McClure gave to Mr Andresakis on 6 June 2017 (T507.37–9).

31. [497]

    I accept that on 13 June 2017, Dr Wroth and Mr McClure discussed his testamentary intentions, the June Will and Dr Alexakis, and that Dr Wroth’s evidence about what Mr McClure said on those matters is a truthful account of her recollection of that discussion. However, for the following reasons, when regard is had to the evidence in its entirety I do not consider that Mr McClure’s statement to Dr Wroth is reliable evidence to support a finding that Dr Alexakis was instrumental in giving or controlling the instructions for the June Will.

32. [498]

    The proposition that it was Dr Alexakis’ suggestion that Mr McClure change his will and delete the Salvation Army, and that this suggestion governed Mr McClure’s instructions, is at odds with the evidence which makes it clear, in my view, that Mr McClure wanted to get his affairs in order and change his will to remove the Salvation Army as a beneficiary for some time due to his concerns about the organisation following the Royal Commission. He expressed that intention to Dr Spalding in 2015 and late 2016, and also to Ms Breen and Mr Andresakis when he discussed the rationale for changing his will (as recorded in their file notes at [189] and [206] above). There is nothing in the file notes, contemporaneous documents or the evidence from other witnesses which corroborates or suggests that it was Dr Alexakis who prompted or persuaded Mr McClure to change his will and remove the Salvation Army as a beneficiary.

33. [499]

    Further, even accepting that Mr McClure’s statements to Dr Wroth were accurate (about which I have doubts) and that he trusted and relied on Dr Alexakis, it is difficult to see how a suggestion (or what might have been an off-hand remark) by Dr Alexakis to Mr McClure that echoed Mr McClure’s own stated intentions could properly be characterised as a conversation that controlled Mr McClure’s instructions to Mr Andresakis on 6 June 2017 or involved pressure on Mr McClure to change his will and include Dr Alexakis as a beneficiary in place of the Salvation Army.

34. [500]

    There is also Dr Alexakis’ evidence. In cross-examination, Dr Alexakis denied discussing Mr McClure’s wills with him or suggesting to Mr McClure that he should change his will and remove the Salvation Army as a beneficiary. As submissions were directed to this aspect of Dr Alexakis’ evidence, I have set it out in full below.

35. [501]

    On the first day of the hearing, Dr Alexakis gave the following evidence (T44.43–45.44):

36. [502]

    On the second day of the hearing, it became apparent that Dr Alexakis had known that the Salvation Army was in Mr McClure’s will and that Mr McClure wanted to “take them off”:

37. [503]

    The Salvation Army submitted that Dr Alexakis’ acceptance that he had given false evidence on the first day of the hearing, to the extent that it concerned discussions with Mr McClure about the Salvation Army (T95.17–46), was indicative of Dr Alexakis not being a witness of truth and that the Court should prefer Dr Wroth’s evidence of what Mr McClure said to her over that of Dr Alexakis’.

38. [504]

    I acknowledge that Dr Alexakis’ evidence on this matter on the first day of the hearing was incorrect. It seems that, but for the Salvation Army getting access to the transcript from the Medical Council hearing and asking Dr Alexakis about it on the second day, the fact that Dr Alexakis knew that Mr McClure wanted to remove the Salvation Army from his will may not have been disclosed and Dr Alexakis’ evidence on the first day would have misled the Court.

39. [505]

    However, having carefully considered this aspect of Dr Alexakis’ evidence together with the rest of his evidence and his demeanour in the witness box, I am more inclined to take the view that Dr Alexakis did not intentionally seek to conceal his knowledge about the Salvation Army’s inclusion in Mr McClure’s will, rather, he genuinely forgot about that matter and believed he had answered the questions put to him in cross-examination correctly. I accept his evidence that he did not give deliberately false evidence about his discussions with Mr McClure regarding the Salvation Army (T96.25-27). The passage of time, the fact that Dr Alexakis had previously disclosed to the Medical Council that he knew that Mr McClure was unhappy with his will and wished to remove the Salvation Army as a beneficiary, and the fact that Dr Alexakis’ evidence in cross-examination regarding his discussions with Mr McClure about finding a solicitor was generally consistent with his affidavit evidence and what he said to the Medical Council (as referred to in the exchanges set out at [502] above), support my finding that Dr Alexakis did not give deliberately false evidence about this matter.

40. [506]

    I also have doubts about the veracity of Mr McClure’s statements to Dr Wroth and her understanding of them. In cross-examination, Dr Wroth candidly accepted that her views about Dr Alexakis were somewhat flavoured by the impression created when Mr McClure spoke of Dr Alexakis’ home visits. Dr Wroth said that Mr McClure spoke as though Dr Alexakis’ home visits happened reasonably regularly and had occurred immediately prior to Mr McClure’s admission to the RPAH on 26 May 2017 (T412.4–38). A note that Dr Wroth prepared from 13 to 28 June 2017 also records that she was concerned that Dr Alexakis was possibly visiting Mr McClure at home frequently with no clear clinical indication (CB366). Dr Wroth’s impressions are not correct on the facts as I have found them. Dr Alexakis made only two home visits to Mr McClure prior to his admission to the RPAH, on 27 January and 3 February 2017. There seems to be no reason to conclude that these visits were not clinically indicated given Mr McClure had recently been discharged from hospital, he could not drive and the contents of the SFMC Patient Report for the visit on 27 January indicate that prescriptions were prepared (CB490).

41. [507]

    Dr Wroth also gave evidence that she understood that Mr McClure had his own solicitor, had initiated and affected all of his own legal and financial affairs, and that she expected that if Mr McClure wanted to independently change his will he would do so “along the ways that he would normally do that, which would be to receive his own independent professional advice from a trusted professional” (T394.1–6). In cross-examination, Dr Wroth accepted that she did not have any problem with Mr McClure asking Dr Alexakis to recommend a solicitor but said “that’s not what I was told happened” (T405.38–43). To the extent that Dr Wroth’s understanding of these matters were based on what Mr McClure told her, it is also not supported by the evidence as outlined at [442]–[443] above.

42. [508]

    Dr Wroth’s opinion that it may have been difficult for Mr McClure to refuse an introduction of a new lawyer who he saw in hospital, out of context of his own place and where he would have had little choice as to who he saw (T394.6–12) is also at odds with the fact that Mr McClure had no apparent hesitation in terminating his meeting with Mr Nguyen in November 2017 despite having professed an urgent desire to change his will at that time.

43. [509]

    Considered in that context, I do not accept that Mr McClure’s statements to Dr Wroth (as recorded in the conversation she deposed to and set out at [246] above) are sufficiently reliable to be accepted as truthful to the extent that they indicate that Dr Alexakis suggested to Mr McClure that he should change his will and remove the Salvation Army as a beneficiary, or that Dr Alexakis discussed with Mr McClure the terms of the June Will. Dr Wroth’s evidence on these matters is also not corroborated by Dr Fernandes’ contemporaneous file note or the affidavit evidence of Drs Fernandes or Lim about what Mr McClure said at the meeting on 13 June 2017. I prefer and accept Dr Alexakis’ evidence that Mr McClure asked him for assistance with an introduction to a solicitor and that Dr Alexakis did not have discussions with Mr McClure about the contents of the 2017 Wills. In my view, Dr Alexakis’ evidence was plausible having regard to Mr McClure’s character (as described at [431] and [434]–[437] above) and the fact that there was nothing in the contemporaneous records or evidence from witnesses other than Dr Wroth and Mr Myhill (whose evidence I deal with at [614]–[635] below in relation to the alleged arrangements) to suggest that Mr McClure had discussed the terms of the 2017 Wills with Dr Alexakis.

44. [510]

    As to the other matters raised in relation to suspicious circumstances, the fact that Dr Alexakis arranged the capacity assessment does not, in itself, reflect his intense interest in the making of the June Will. It is plausible that Mr McClure asked Dr Alexakis to arrange the test. There was no evidence indicating that Dr Alexakis sought to follow up the outcome of the assessment with Dr Lim or any other doctor, an event that might be expected to have occurred if Dr Alexakis had an intense interest.

45. [511]

    As to the submission that Dr Alexakis gave a false reason to Dr Lim for requesting the neuropsychology assessment, I have considered why Dr Alexakis did not say to Dr Lim that the test was required because Mr McClure wanted to change his will. One explanation is that what Dr Alexakis said to Dr Lim (at [182] above) reflected what Mr McClure had told him. That seems plausible given that Mr McClure raised with Mr Andresakis at the meeting on 5 July 2017 concerns about a shareholder who died 10 to 15 years ago and Mr McClure’s failure to get back to the executors about the shares. It is also difficult to conclude that Dr Alexakis gave a false reason to attempt to hide his role from Dr Lim in circumstances where Dr Alexakis’ explanation to Dr Lim related to Mr McClure’s estate, Dr Alexakis would likely have expected that Mr McClure would inform others that Dr Alexakis had helped him find a lawyer to change his will (as Mr McClure did during consultations with doctors on 2 and 13 June 2017 and his assessment with Ms Breen) and Dr Alexakis did not hide his presence at the RPAH when he introduced Mr Andresakis to Mr McClure.

46. [512]

    Dr Alexakis was aware that Mr McClure was making a new will and understood from a past conversation that Mr McClure intended to remove the Salvation Army as a beneficiary. The contents of Mr Andresakis’ email to Dr Alexakis dated 2 June 2017 (at [193]–[194] above) and the fact that Mr Andresakis prepared the Costs Agreement for Mr McClure which described the scope of work as the preparation of a will (CSTB348) following discussions with Dr Alexakis and pre-dating Mr Andresakis’ introduction to Mr McClure indicate that Dr Alexakis knew that Mr McClure wished to change his will and that Dr Alexakis had told Mr Andresakis about that matter. The fact that Dr Alexakis recommended a solicitor from a firm that he and his family engaged and who had made a will for another patient in Dr Alexakis’ favour is a suspicious circumstance although, as I have said, it is explicable by reference to Mr McClure’s past conduct in preparing his wills with various recommended solicitors and his character generally.

47. [513]

    Mr Andresakis gave evidence, which I accept, that prior to the meeting on 6 June 2017, he was aware from his discussions with Dr Alexakis that Mr McClure wanted to prepare a new will and receive assistance with company matters, but he had not been told by Dr Alexakis that Mr McClure proposed to make a will in his favour, that he wanted to change his will and delete a gift to the Salvation Army or that he was a wealthy man (T210.25–7; T214.26–38; T215.20–5; T263.10–22). I find that Mr Andresakis became aware of those matters and his instructions regarding Mr McClure’s will at his meeting with Mr McClure on 6 June 2017, as recorded in his file note of that day.

48. [514]

    Mr Andresakis was not able to recall all the phone calls he had with Dr Alexakis on 6 and 7 June 2017 and accepted that he may have told Dr Alexakis that he had formed the view that Mr McClure had capacity to make a will. However, when cross-examined, Mr Andresakis was clear and firm that after his meetings with Mr McClure he did not tell Dr Alexakis that Mr McClure had made provision for him in his will or that Mr McClure was leaving him 65% of his estate (T223.41–4; T215.9–25; T230.19–29). He described Dr Alexakis’ role as referring a patient to him and giving assistance in relation to appointments, and that he carried out the instructions of the “new client/patient” (T256.16–42). When asked about the work he did for Mr McClure leading up to the execution of the June Will in the context of the phone calls, Mr Andresakis also rejected the propositions that Dr Alexakis exhibited a good deal of interest in Mr Andresakis’ instructions to prepare a will for Mr McClure and that Dr Alexakis had an intense interest in the appointment for Mr Andresakis to see Mr McClure on 6 June 2017 and after, and denied that he was trying to protect Dr Alexakis (T231.42–232.2; T256.31–42). Mr Andresakis’ evidence about those matters was convincing, and I accept it.

49. [515]

    At the 6 June meeting, Mr McClure instructed Mr Andresakis as to the reasons why and how he wished to dispose of his estate. His reasons for removing the Salvation Army were consistent with what he had said to Drs Spalding and Alexakis, and his reasons for not making a bequest to his brother were consistent with his prior wills. Based on Mr McClure’s relationships with Mr Camilleri and Mrs H Schwanke, it is rational that Mr McClure would want to benefit them. The inclusion of Ms M Schwanke is also explicable although it appears that her bequest was likely prompted by the call between Mrs H Schwanke and Mr McClure in late May (as referred to at [167] above).

50. [516]

    As to Dr Alexakis, the terms of Mr Andresakis’ file note and his evidence in cross-examination satisfy me that Mr McClure instructed Mr Andresakis that he wanted to “mostly leave” his estate to Dr Alexakis and intended him to be the major beneficiary. Mr McClure provided an explanation to Mr Andresakis for Dr Alexakis’ inclusion and he instructed Mr Andresakis to prepare a will based on Dr Alexakis receiving 65% of his estate.

51. [517]

    The June Will was drafted by Mr Andresakis or, more precisely, by Mrs Guy as instructed by Mr Andresakis. It accurately reflects the instructions that Mr Andresakis received from Mr McClure on 6 June 2017, as recorded in Mr Andresakis’ file note and as explained by Mr Andresakis in cross-examination, including in relation to the insertion of clause 4 (referred to at [224] above).

52. [518]

    Thus, on its face, the June Will represents Mr McClure’s instructions to Mr Andresakis for what he wanted included in his will at that time. The evidence also establishes that Mr McClure took the time to read the June Will before executing it, utilising his own magnifying glass to assist him to do so.

53. [519]

    In relation to Mr McClure’s age and health, the medical records of his admission to the RPAH on 26 May 2017 note that he was alert, confused with events and smelled of incontinence, and that his medical background included Stage 3B colorectal cancer, likely prostatic malignancy with obstructive uropathy, chronic renal impairment, bilateral lower limb oedema, diabetes and hypertension (MTB938–45). The records refer to Mr McClure having a mild cognitive impairment and taking hydromorphone, a medication which has potential side effects of drowsiness, confusion and sometimes hallucinations. He was initially treated with 0.5 milligrams of hydromorphone four times a day, which was reduced on 30 May 2017 to 0.25 milligrams four times a day and on 2 June 2017 to 0.25 milligrams two times a day (T345.44–346.15; MTB1032). He was also blind in one eye (MTB1645).

54. [520]

    Based on Ms Breen’s assessment (at [189] above), there is no doubt that Mr McClure had testamentary capacity. The evidence given by the doctors at the RPAH and Mr Andresakis (Andresakis 2 at [34]), and the contemporaneous records do not suggest that Mr McClure was drowsy or confused at the relevant times in the will-making process due to his pain medication or that he could not read, complete or comprehend written documents himself. Overall, the evidence presents a picture of Mr McClure as a man who, while old and physically ill, was alert and oriented, able to read and comprehend documents when using a magnifying glass, able to ask and answer questions on a range of topics and had a good recall of matters relevant to his will-making decisions on 8, 10 and 13 June 2017.

55. [521]

    I do not accept the Salvation Army’s submission that Dr Alexakis has not satisfied the onus of establishing that Mr McClure understood and comprehended the contents of the June Will on the alleged basis that there is a real doubt that Mr McClure understood at the time of its execution that his estate could be devised by percentage shares rather than in dollar amounts or that he did not understand the effect of the gift of percentage shares to each of the beneficiaries in the context of the size of his estate.

56. [522]

    It was submitted that Mr McClure’s uncertainty as to percentage shares can be identified on 6 June 2017 and carried over to 8 June 2017. Reference was made to: Mr McClure’s proposal on 6 June that involved differing shares; the conversation overheard by Dr Fernandes during which percentages were sought to be allocated between beneficiaries which was said to have involved Mr Andresakis assisting Mr McClure; Mr McClure’s statement that he did not naturally understand that the estate could be given by percentage shares rather than dollar amounts; and Mr Andresakis’ failure to offer any explanation of the will to Mr McClure. It was submitted that it can be inferred that there was no discussion with Mr McClure on 8 June 2017 concerning the size of his estate because Mr Andresakis’ file note of their meeting that day includes the entry “Assets? SHARES COMPANIES?” and that Mr McClure’s lack of understanding regarding percentages continued at the time of executing the June Will because he returned to that topic in conversation that day.

57. [523]

    Prior to the 6 June meeting, Mr McClure may not have naturally understood that his estate could be divided in percentage shares as distinct from making bequests of articles or specific sums of money but, as he said to Dr Fernandes on 13 June, Mr Andresakis explained that matter to him (Fernandes at [37]; T445.20–32). Although Mr Andresakis could not recall such a discussion and did not think it occurred on 8 June (T229.32–43), the handwritten notes on the back of the Cost Agreement and Mr Andresakis’ file note make clear that there were discussions between Mr McClure and Mr Andresakis about the allocation of his estate to the named beneficiaries by way of percentage shares at the 6 June meeting.

58. [524]

    In my view, the inference to be drawn from the evidence is that there were discussions at the 6 June meeting during which Mr McClure came to understand that his estate could be divided up in percentage shares and, having identified the beneficiaries, Mr McClure then nominated a range of different percentages before settling on the percentages referred to in the third column of the handwritten notes on the back of the Cost Agreement (at [207] above). The allocation of Mr McClure’s estate in percentage shares, which added to 100%, was explained to him on 8 June 2017 and Mr McClure understood and appreciated the effect of dividing his estate in that manner.

59. [525]

    That inference is further supported by the fact that Mr McClure recalled the use of percentage shares as a device for devising his estate when he discussed the terms of his third will with Drs Wroth, Lim and Fernandes by reference to that concept. As Dr Fernandes explained in cross-examination, Mr McClure knew what was in his will (T445.20–5).

60. [526]

    The Salvation Army also submitted that the Court should infer that the allocation of Mr McClure’s estate by way of percentages, as opposed to allocating dollar amounts, must have flowed from Dr Alexakis and that he specified the percentage of 65% to him because Mr McClure did not naturally understand that a will could be devised in that way (T502.5–7; T515.5–8; T515.41–3).

61. [527]

    I do not accept that submission. In addition to the matters referred to at [517]–[518], in my view, the fact that Mr McClure reflected on and changed the percentage shares at the 6 June meeting is incompatible with the premise that Dr Alexakis suggested and specified percentage shares to Mr McClure. There is no logical reason for Mr McClure to start at 10%, move to 70% and then settle on 65% if, as the Salvation Army contended, Dr Alexakis had specified his percentage share to Mr McClure prior to the 6 June meeting, whether pursuant to an alleged arrangement or not. The process by which the “breakup” of the percentage shares was determined by Mr McClure seems more consistent with Mr McClure having not fully understood the concept of devising his estate by use of percentage shares until it was explained to him by Mr Andresakis (as he told the doctors on 13 June) and Mr McClure reflecting on and making his final testamentary decisions on that day. In that context, Dr Alexakis’ evidence in cross-examination that he never had a conversation with Mr McClure about percentages as opposed to dollar figures or what provision was to be made in his favour under Mr McClure’s will is tenable in my view, and I accept it (T60.29–32).

62. [528]

    Mr Andresakis did not explain the effect of the June Will to Mr McClure in monetary terms and Mr McClure may not have understood the precise dollar amounts that he was gifting to the beneficiaries by the use of percentages at the time he executed the June Will. However, knowledge and approval does not require a precise legal understanding of a will or of every effect and consequence of the will. It is sufficient if a testator is shown to have known and approved the gravamen of the will: Lewis v Lewis at [187]. What must be shown is that Mr McClure understood that the document he was executing was a will and the practical effect of the central clauses in the document: Estate of the late Genevieve Bryan [2022] NSWSC 965 at [434], per Ward CJ in Eq. (as her Honour then was).

63. [529]

    The position in this case is also very different to that in Wintle v Nye [1959] 1 All ER 552; [1959] 1 WLR 284, a case relied on by the Salvation Army (Outline of Final Submissions of First Defendant at [54]). The testatrix in that case was old, unversed in business and her property had been managed by her brother until his death. It was in that context that the Court had doubts that she had any real understanding of the magnitude of her estate in spite of the figures that had been shown to her before she executed her will. The will was also drafted by a solicitor who was the major beneficiary and the document was described as complex which “demanded for its comprehension no common understanding” (at 291).

64. [530]

    The structure of the June Will is straightforward and not difficult to follow. It provided for the entirety of Mr McClure’s estate to be converted into money and, after payment of expenses, to be divided between the four named beneficiaries in the stated percentages.

65. [531]

    Mr McClure was an intelligent, retired businessman who managed his and his companies’ accounting and financial matters. He was technologically literate and traded in shares. He was experienced in will-making (having made three wills during the period 2007 to 2016) and told Mr Andresakis (on 6 June) and the doctors (on 13 June) that he had real property, bank accounts, companies, shares and that his estate was about $15 million in value. The contemporaneous evidence does not point to Mr McClure having had any difficulty with comprehension. In those circumstances, the propositions that there is real doubt that Mr McClure did not understand the effect of devising his estate by way of percentage shares to the four named beneficiaries or that he could not approximate the value of 65% of his estate cannot be sustained.

66. [532]

    According to Ms Narayan’s evidence, Mr Andresakis explained the June Will to Mr McClure on 8 June. The evidence might suggest that Mr McClure did not ask any questions prior to execution, but he was capable of doing so and there was no apparent reason for any questions to be asked given the June Will accurately reflected the instructions he had provided to Mr Andresakis only two days prior. Mr McClure was a capable testator who, according to the evidence, read the June Will carefully and was able to explain its essential characteristics to others on 13 June, including that his estate was divided by reference to percentages, and explain his main assets and what he estimated to be the value of his estate at that time.

67. [533]

    For these reasons, I am satisfied that Mr McClure knew, approved and understood the effect of the contents of the June Will at the time he executed it.

68. [534]

    Having considered the evidence as a whole, I have come to the same conclusion in relation to the July Will.

69. [535]

    The matters and my reasoning in relation to the June Will are also relevant and supportive of a finding that the contents of the July Will were fully known to and approved by Mr McClure. As to his health at the time of execution, the evidence does not suggest that Mr McClure’s cognitive abilities were adversely affected by the medications he was taking or any other matters following his discharge from the RPAH. Dr Alexakis’ notes of his home visits to Mr McClure around the time of the July Will present a picture of an oriented man and he appeared to Mr Andresakis to be alert, mentally sharp, intelligent and very clear about his testamentary intentions (Andresakis 2 at [34]).

70. [536]

    Other central facts relevant to the assessment of knowledge and approval of the July Will are that Mr McClure wrote the McClure Document himself and the July Will adopted the same structure and terms as the June Will, save for the appointment of Mr Andresakis as executor and trustee and the gifts in clause 2 which reflect the instructions Mr Andresakis received at the 5 July meeting and the contents of the McClure Document (other than the default provision at cl 2(D)(iii) in relation to Mrs H Schwanke’s gift of 1% of the residue, which Mr Andresakis admitted to be a mistake at T253.15–43). As the Salvation Army candidly accepted, it was more difficult to establish lack of knowledge and approval with the July Will because of the “handwritten instructions” (referring to the McClure Document) (T488.9–14).

71. [537]

    For the reasons set out at [326] above, the evidence did not persuade me that I should find that Dr Alexakis was instrumental in conveying the McClure Document to Mr Andresakis on or before 5 July 2017. It is possible that Dr Alexakis was involved in arranging the meetings (directly or via Mrs Alexakis) between Mr Andresakis and Mr McClure on 5 and 10 July, but there is no direct evidence that Dr Alexakis was made aware that those meetings were for the purposes of Mr McClure providing instructions for and executing a new will under which bequests to him were increased. Dr Alexakis was challenged about his knowledge of the July Will in cross-examination. He gave evidence that he was not aware that in the evening of 5 July Mr McClure had given instructions to Mr Andresakis for a will and he said that he had “no idea at all” that Mr McClure had made a will at home (T74.30–5; T128.28). In my view, the totality of the evidence does not indicate that Dr Alexakis participated in any meaningful way in the giving of instructions for or preparation or execution of the July Will, and I find that he did not.

72. [538]

    On 5 and 10 July 2017, Mr Andresakis did not discuss with Mr McClure his assets or the value of his estate, however those matters had been discussed when he received instructions from Mr McClure on 6 June. For the reasons set out at [528], I do not accept that the absence of a discussion between Mr Andresakis and Mr McClure about the precise dollar terms of gifting Dr Alexakis the Strathfield Home, its contents and 90% of the residue is indicative of Mr McClure not understanding the contents of the July Will or understanding the gravamen of its effect which was, in essence, that Dr Alexakis was the primary and substantial beneficiary of his estate. This is particularly so given Mr McClure was the author of the McClure Document. I do not accept the Salvation Army’s submission that the reference to “Isolate Assets” is suggestive of some discussion of the preparation of the McClure Document on the basis that Mr McClure would not say those words. In my view, the use of those words is explicable by the fact that the McClure Document represented a form of instructions to Mr Andresakis that indicated his wishes to gift particular assets to particular beneficiaries and then dispose of the residue by way of percentage shares. It also seems similar to the way in which Mr McClure expressed himself in other handwritten notes: see, for example, Mr McClure’s handwritten note to Mr Andresakis, “Copy of will” (Exhibit 1B), and his handwritten note in preparation for his meeting with the Public Trustee on 25 June 2008 (CSTB103). For that reason and for the reasons set out at [538], I do not consider that the evidence supports a finding that Dr Alexakis discussed the McClure Document with Mr McClure prior to delivering it to Mr Andresakis (Outline of Final Submissions of First Defendant at [26(ccc)]) and I find that he did not.

73. [539]

    The fact that Mr McClure executed the July Will with part of clause (cl 2(D)(iii)) differing from the instructions given by Mr McClure on 5 July 2017 (in that it provided for Mrs H Schwanke’s 1% share to go to Mr Camilleri rather than to Dr Alexakis in the event that she predeceased Mr McClure) suggests that Mr McClure did not carefully read the entirety of the July Will when he executed it, or at least that part of cl 2.

74. [540]

    On the other hand, Mr McClure identified and rectified the spelling error in Ms Nasr’s name, an objective fact that demonstrates some attention to detail on his part while reading the July Will. The file notes of Mr Andresakis and Mrs Guy also record that Mr McClure took his time to read the July Will, again using a magnifying glass to do so, and, after the spelling correction was made, he signified his acceptance by saying “Ok” and proceeded to execute it. In those circumstances, and as the July Will generally reflected Mr McClure’s instructions and adopted the same structure as the June Will, I consider that Mr McClure was satisfied with the terms of the July Will and understood its contents when he executed it, notwithstanding that the difference between his instructions and the default provision in cl 2(D)(iii) had not been explained to him by Mr Andresakis. In any event, even accepting that Mr McClure did not know and approve the different default gift in cl 2(D)(iii), for the reasons set out above (particularly in relation to the terms of the McClure Document and the instructions given to Mr Andresakis on 5 July), this does not lead me to conclude that Mr McClure did not know and approve the Impugned Clauses that appointed Mr Andresakis as executor and trustee and left property and 90% of the residue of the estate to Dr Alexakis. At its highest, it would mean that I should conclude that he did not know and approve of that part of the July Will and should sever it (Lewis v Lewis at [189]–[200]; Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 (Hobhouse v Macarthur-Onslow) at [476] per Robb J), which is unnecessary to do since Mrs H Schwanke is alive and the default event cannot arise.

75. [541]

    As to the Schwanke’s submission that there was no evidence of Mr McClure having any recollection of the July Will following its execution, while Mr McClure may have only referred to a will he made in the RPAH in conversation with Mr Myhill in November 2017, he did refer to a will in which he appointed Mr Andresakis as his executor during his interview with the police on 12 September 2017, thereby providing some confirmation (to the extent needed) that he recalled the contents of the July Will.

76. [542]

    In their defences and cross-claims, the Salvation Army and the Schwankes alleged that the execution of the 2017 Wills or the Impugned Clauses resulted from undue influence (actual and presumed) on the part of Dr Alexakis and referred to many of the matters relied on as suspicious circumstances (set out at [493]–[494] above), including Mr McClure’s illness, social isolation, lack of family and short-term memory loss. They also assert that Dr Alexakis, as Mr McClure’s longstanding GP who visited him at home, held a position of trust, confidence, loyalty and ascendancy over Mr McClure which they alleged gave rise, as a matter of fact and presumption, to a relationship of undue influence.

77. [543]

    In relation to the June Will, it is alleged that Dr Alexakis suggested that Mr McClure give 65% of his estate to him in circumstances where Mr McClure was so weak and feeble that minimal pressure, such as that arising from a suggestion, could achieve the desired result. It was contended that, in the context of a relationship of undue influence, the June Will or the gifts in favour of Dr Alexakis resulted from undue influence on his part.

78. [544]

    In relation to the July Will, as it was a refinement of the June Will (which they said was made as a result of undue influence), it was alleged that it also resulted from Dr Alexakis’ undue influence given Mr McClure’s condition at the time, the increase in the gift to Dr Alexakis and Dr Alexakis’ position of influence over Mr McClure.

79. [545]

    The Salvation Army and the Schwankes also pleaded that undue influence arose on the part of Mr Andresakis and alleged that he was Dr Alexakis’ “agent solicitor”. As the Salvation Army did not press the agency allegation at the hearing (T503.45–504.3) and the Schwankes did not address it in their written or oral submissions, I have not dealt with that allegation. I note, however, that my findings at [518] and [536] above, to the effect that Mr Andresakis acted on Mr McClure’s instructions when he created the 2017 Wills, do not support a finding that Mr Andresakis acted as Dr Alexakis’ agent or that he unduly influenced Mr McClure.

80. [546]

    At the hearing, the Salvation Army maintained that the principles relating to probate undue influence ought to be extended to encompass the equitable doctrine of undue influence so as to recognise equitable presumptive relations of influence such as the doctor and patient relationship. However, the Salvation Army’s Senior Counsel accepted that this Court is bound by Court of Appeal authority and, as such, cannot find that the 2017 Wills are vitiated in probate because of equitable undue influence (T492.30–46).

81. [547]

    The Salvation Army’s written and oral submissions regarding undue influence focused on the alleged arrangements between Mr McClure and Dr Alexakis, being the arrangements they say were disclosed by Mr McClure to Mr Myhill in November 2017 (as set out at [403] above). They submitted that the Court should infer that there were two arrangements: first, that Mr McClure, who was feeling stuck in hospital, agreed to make provision for Dr Alexakis in his will in return for Dr Alexakis helping Mr McClure to get home and that the probabilities favour that the June Will was made on this basis; and, second, that Dr Alexakis agreed to look after Mr McClure at home in return for Mr McClure increasing the provision made to Dr Alexakis under his will and that the probabilities similarly favour that the July Will was made on this basis.

82. [548]

    The Salvation Army submitted that Dr Alexakis made Mr McClure feel dependent on him so that he could manipulate Mr McClure’s will decision-making and procure his entry into the arrangements, and that Dr Alexakis’ conduct “fits into the prism of a moral command” and Mr McClure’s conduct “bespeaks of a desperate man” (T510.10–37; T527.20). It was submitted that the evidence was sufficient for the Court to find that Dr Alexakis persuaded, coerced and manipulated Mr McClure based on the existence of the arrangements, the context in which they were made (namely, that Mr McClure was in the RPAH and desperate to get out and then, when he returned home, that he was dependent on Dr Alexakis for care and to remain at home), and the fact that Dr Alexakis suggested to Mr McClure that he should change his will and not make provision for the Salvation Army.

83. [549]

    The Salvation Army submitted that Mr McClure’s decisions to make the 2017 Wills in favour of Dr Alexakis were not voluntary and free acts, even if the arrangements had been offered by Mr McClure and accepted by Dr Alexakis, because of the power imbalance between Dr Alexakis and Mr McClure (T489.15–21). It argued that the existence of the arrangements means that it can be said that Mr McClure felt, when executing the 2017 Wills, that “this is not my wish, but I must do it”, referring to Wingrove v Wingrove (1885) 11 PB 81 (Wingrove v Wingrove) at 83. It was submitted that, absent the arrangements, in all likelihood Mr Andresakis would not have been introduced to Mr McClure, Mr McClure would have stayed in hospital longer and Dr Alexakis would unlikely have been a beneficiary under Mr McClure’s will.

84. [550]

    The Salvation Army also contended that Mr Andresakis’ presence did not counter the undue influence of Dr Alexakis as Mr Andresakis failed to appreciate the conflict of interest that arose from his introduction to Mr McClure by Dr Alexakis, an established client and the major beneficiary under the 2017 Wills, referring to the comments of Santow J (as his Honour then was) in Pates v Craig & Public Trustee (Estate of the late Joyce Jean Cole) (Unreported, Supreme Court of New South Wales, Santow J, 28 August 1995) (Pates v Craig & Public Trustee) and Dickman v Holly [2013] NSWSC 18 (Dickman v Holly).

85. [551]

    At the hearing, the Salvation Army acknowledged that the alleged arrangements were central to its undue influence case (T499.40–500.8) and that its case depended, in some way, upon the Court finding that Mr Andresakis was “not doing his job” properly (T502.21). The Salvation Army submitted that, on the totality of the evidence, the Court could be satisfied on the balance of probabilities that an inference should be drawn that the 2017 Wills were made by reason of the arrangements between Mr McClure and Dr Alexakis which amounted to undue influence on Dr Alexakis’ part (referring to the approach of Vickery J in Nicholson v Knaggs [2009] VSC 64 (Nicholson v Knaggs) at [150]), and that it did not need to show that the circumstances were inconsistent with a contrary hypothesis, as referred to in Boyse v Rossborough at 41, Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 (Salvation Army v Becker) at [64], per Ipp JA (with whom Mason P and McColl JA agreed) and Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 (Winter v Crichton) at 122, per Powell J (as his Honour then was).

86. [552]

    The Schwankes submitted that the Court should find that the alleged arrangements existed, although they submitted that such a finding is not essential to a conclusion that the Impugned Clauses were procured by undue influence (actual or presumed) on the part of Dr Alexakis. They contended that such a finding is open to the Court because Mr McClure was vulnerable to Dr Alexakis’ exploitation, relying on Dr Wroth’s evidence (at T372.3–398.4). They submitted that the power imbalance between Mr McClure and Dr Alexakis was more severe than that which would usually arise under the equitable presumption because of Mr McClure’s terminally ill-health and his significant social isolation, which they argued was powerful evidence in support of a finding of undue influence in this case.

87. [553]

    The Schwankes also submitted that the Court should consider the conflicting authorities of the New South Wales appellant jurisdiction and accept that the preferable view is that there is a presumption of undue influence in probate in circumstances where a testator is enfeebled and the impugned gift is given to someone who is not a natural object of the testamentary bounty, such as a gift from a patient to a doctor (as in this case), by reference to decisions of this Court from the 19th century and relying in particular on Callaghan v Myers (1880) 1 NSWLR 351 (Callaghan v Myers) (Outline of Closing Submissions for the Third and Fourth Defendants at [4]).

88. [554]

    The Schwankes also submitted that the circumstantial evidence points more strongly towards undue influence in respect of the July Will because there is no explanation as to why Mr McClure changed his will at that time, noting that Mr Andresakis had not made any enquiries with Mr McClure as to why he had made such significant changes. They submitted that Mr Andresakis’ letter to Mr McClure of 10 October 2017 recognised that there was a real chance that the will was invalid for undue influence, that Mr Andresakis was in a position of conflict and that Mr Andresakis “fell asleep at the wheel” as he did not appreciate the circumstances around him (T543.46–8).

89. [555]

    Consistent with their position on knowledge and approval, the Schwankes submitted that they and Mr Camilleri did not have any involvement in the preparation of the July Wills, such that the undue influence effected the Impugned Clauses only. They submitted that the Court can admit parts of the 2017 Wills while holding that the Impugned Clauses are invalid on the basis of undue influence, relying on the approach of Vickery J in Nicolson v Knaggs (No 3 – Severance and Costs) [2009] VSC 328, Parker J in Lewis v Lewis [2020] NSWSC 1306 (as upheld on appeal) and Robb J in Hobhouse v Macarthur-Onslow.

90. [556]

    Mr Camilleri’s written and oral submissions did not address undue influence in probate or equity. He adopted the Salvation Army’s submissions regarding the alleged arrangements between Mr McClure and Dr Alexakis and the submissions of the Schwankes and the Salvation Army in support of findings of equitable undue influence as raised in his cross-claim. At the hearing, Mr Camilleri accepted that that there is no presumption in probate undue influence like the presumptive relations of influence that may arise in equity (T541.14–7), such as from a doctor and patient relationship.

91. [557]

    Dr Alexakis' position on undue influence can be summarised as follows. He denied the existence of the alleged arrangements. He said that the Court cannot take Mr McClure’s statements as evidence of such arrangements and should find that Mr McClure never told Dr Alexakis that he would make a will in his favour or that he was a beneficiary under his will.

92. [558]

    Dr Alexakis submitted that a presumption of relational undue influence does not arise in probate and that the defendants have to establish that some form of coercion or pressure, beyond mere persuasion, was exerted by Dr Alexakis and overpowered Mr McClure’s free will which, he submitted, they have failed to do. Dr Alexakis said that there is no evidence of persuasion or pressure by him in relation to Mr McClure’s testamentary intentions and emphasised the following: Mr McClure had no contact with Dr Alexakis when it came to interacting with Mr Andresakis; Mr McClure was an independent thinker with a small social circle who was determined to change his will; and undue influence was squarely raised with Mr McClure before his death and was found not to exist.

93. [559]

    Dr Alexakis accepted that undue influence may be established by circumstantial evidence but contended that the onus rests with the defendants to prove it. He submitted that the defendants need to go further than merely establishing the circumstances from which they seek to have the inference drawn that Dr Alexakis had the power to influence Mr McClure and must also show that Dr Alexakis exercised that power, that the 2017 Wills were produced as a consequence of that power and that their execution is inconsistent with a contrary hypothesis, contending that the applicable test in New South Wales is that expounded by Powell J (as his Honour then was) in Winter v Crichton at 122, who refers with approval to Wingrove v Wingrove at 83, and Boyse v Rossborough at 1212.

94. [560]

    The parties’ submissions recognised that the doctrine of undue influence in probate is distinct from equitable undue influence. The exercise of undue influence upon testators is derived from the English Ecclesiastical Courts and is now the exclusive concern of the Court’s probate jurisdiction whereas the equitable jurisdiction, as originally formulated by the Court of Chancery, is concerned with transactions inter vivos.

95. [561]

    Undue influence in probate has been described as “pressure of whatever character”, “coercion”, “the exercise of the power to unduly overbear the will of the testator” and conduct that “destroys free agency”, such that the will the testator has executed can be said to have not been what they intended or desired by way of disposition: Tobin v Ezekiel at [49], per Meagher JA (with whom Basten and Campbell JJA agreed); Salvation Army v Becker at [63], per Ipp JA (with whom Mason P and McColl JA agreed); Rofe at [129]; Hall v Hall (1868) LR1P&D 481 (Hall v Hall); Boyse v Rossborough at [48]; Winter v Crichton at 121; and Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 (Bridgewater v Leahy) at [62], per Gaudron, Gummow and Kirby JJ.

96. [562]

    Not all influences and persuasions amount to undue influence in probate. Persuasion, influence, moral pressure to favour a person by will or appeals to the affections of ties of kindred or sentiments of gratitude for past services are not invalidating in probate unless such a force overpowers the volition of the testator and results in a will they did not intend to make: Salvation Army v Becker at [63]–[64], citing Hall v Hall at 481; and Petrovski v Nasev; Re Estate of Janakievska [2011] NSWSC 1275 (Petrovski v Nasev) at [311], per Hallen AsJ.

97. [563]

    As stated by Sir JP Wilde in Hall v Hall at 481–2:

98. [564]

    While some form of coercion or pressure is required, actual force, violence or threats of violence need not be proven. The circumstances of the individual testator, including their physical and mental strength, will be relevant in assessing whether the testator’s judgement has been impaired by undue influence. If someone is weak and feeble, little pressure may be sufficient to bring about the desired result; the mere talking to them and pressing something on them may so fatigue them that they are induced to do anything for quietness’ sake. Thus, what may not constitute undue influence in the case of a person with a strong will and ordinary fortitude may constitute undue influence in the case of a more susceptible individual: Wingrove v Wingrove at 82–3; Winter v Crichton at 122; Rofe at [160]; Petrovski v Nasev at [276].

99. [565]

    A finding that the execution of a will has been procured by the undue influence of another also does not require a finding of impropriety on the part of the other: Rofe at [163], citing Petrovski v Nasev at [269] and Blendell v Byrne [2019] NSWSC 583 (Blendell v Byrne) at [459], per Hallen J.

100. [566]

     In Bracher v Jones [2020] NSWSC 1024, a case in which the will of an elderly woman was found to have been procured by undue influence despite the intervention of a solicitor in its preparation, Robb J observed at [475]:

101. [567]

     As Vickery J said in Nicholson v Knaggs at [150]:

102. [568]

     Thus, probate undue influence is concerned with the existence of testamentary intention and looks to the effect of the influence to see whether the will was something a testator did not wish or desire to do: Wingrove v Wingrove at 82; Salvation Army v Becker at [63]–[64].

103. [569]

     In contrast, equitable undue influence applicable to inter vivos transactions is concerned with the quality of the intention or the means by which it was produced: Bridgewater v Leahy at [63].

104. [570]

     In equity, undue influence may be proven by presumption (presumed undue influence) or direct evidence (actual undue influence). Presumed undue influence arises where a relationship exists between the parties and there is a transaction between them, commonly involving a “substantial benefit” to one party, that cannot be explained by “ordinary motives” or “is not readily explicable by the relationship of the parties”. In such cases, it is presumed that the transaction was not the exercise of the donor’s free will: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 (Thorne v Kennedy) at [34], per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ.

105. [571]

     A recognised relationship that gives rise to the equitable presumption of undue influence is that of patient and treating doctor. Where a patient makes a substantial gift to their doctor, a relationship of undue influence is presumed in equity such that the onus of proof passes to the doctor to establish that the patient knew and understood what they were doing and that the gift was produced by their free, voluntary and independent act: Thorne v Kennedy at [34]; Johnson v Buttress (1936) 56 CLR 113 (Johnson v Buttress) at 119, per Latham CJ; Bar-Mordecai v Hillston [2004] NSWCA 65 at [148], per Mason P, Tobias JA and Davies AJA, citing Breen v Williams (1996) 186 CLR 71 at [92], per Dawson and Toohey JJ.

106. [572]

     The Schwankes submitted that this Court should accept that there is a presumption of undue influence in this case that has the effect of shifting the onus to Dr Alexakis, akin to equitable undue influence. They submitted as follows (Outline of Closing Submissions for the Third and Fourth Defendants at [4(b)]):

107. [573]

     In Nye v Sewell (1894) 15 NSWR 18 (Nye v Sewell) at 21, citing Boyse v Rossborough, Manning J rejected that undue influence in probate could be presumed solely by the position of the parties and described it as “an utter misconception of the law”, although he accepted that undue influence may be established by an inference from the facts.

108. [574]

     In Boyse v Rossborough, Lord Cranworth held at 1211:

109. [575]

     The Schwankes submitted that Nye v Sewell was incorrect to follow Boyse v Rossborough as it was contrary to the unanimous judgment of the Full Court in Callaghan v Myers. They contend that the law of New South Wales on this issue has, as a consequence, fallen into error.

110. [576]

     In Callaghan v Myers, the plaintiffs sought to uphold a will made in their favour. Sir W Manning, the primary judge, held that the plaintiffs had not made out the testamentary capacity of the testator and was satisfied that there had been undue influence. Relevantly, there was no direct evidence that anything was said by the plaintiffs to persuade the testator to change his will or evidence of threats or physical coercion.

111. [577]

     On appeal, Martin CJ stated that undue influence need not be proven by direct testimony but can be shown by close reference to the surrounding circumstances. His Honour stated at 353–4:

112. [578]

     At 356–7, Hargrave J stated:

113. [579]

     The Schwankes also submitted that the existence of a presumption of undue influence in probate had previously been accepted in New South Wales, referring to Buckley v Millar (1869) 8 SCR Eq 4 (Buckley v Millar) where Hargrave J referred to “well-known authorities” that established the presumption, at 11:

114. [580]

     In Callaghan v Myers, Martin CJ used the term “presumption of undue influence” and Hargrave J referred to “throw[ing] the onus of proof on the persons seeking to establish the will” (akin to a presumption that may arise in equitable undue influence). However, the Court’s finding of undue influence seems to have been based on the Court’s consideration of all the facts and circumstances of the case and inferential reasoning, rather than the application of a presumption arising from the existence of a relationship that had the effect of shifting the onus on the defendant to establish otherwise. As Martin CJ stated at 356–7:

115. [581]

     As to the cases cited by Hargrave J in Callaghan v Myers, the case of Dent v Bennett (1839) 4 My & Cr 269; 41 ER 105 was brought by an executor seeking to restrain a defendant surgeon from enforcing an agreement entered into with the testator who had purportedly agreed to pay the surgeon $25,000 for medical and surgical assistance during the remainder of his life. The executor’s claims of fraud and equitable principles sought to set aside the agreement as an inter vivos transaction, rather than attacking the testator’s will under probate law.

116. [582]

     In Huguenin v Baseley (1807) 14 Ves Jr 273; [1803–13] All ER Rep 1 at 9, Lord Eldon LC recognised that undue influence can only be found in probate cases based “upon what is alleged and proved by the persons complaining”.

117. [583]

     As to Buckley v Millar, it was a decision of a single judge and does not seem to have been followed in later probate cases.

118. [584]

     The authorities subsequent to Callaghan v Myers refer to it as authority for the proposition that a finding of probate undue influence may be established based on inferential reasoning rather than as authority for the principle that a presumption arises from the existence of a relationship and ill-health that shifts the onus of proof to the person propounding a will, as in equitable undue influence.

119. [585]

     In Watson v Kerridge (1887) 8 LR (NSW) Eq 25 (Watson v Kerridge) at 28, Manning J rejected an argument from counsel that a Court or jury was not competent to infer undue influence from the circumstances of the case or to accept it on direct proof, citing Callaghan v Myers for that proposition.

120. [586]

     On appeal, in Watson v Kerridge and Wife (1888) 9 LR (NSW) Eq 35, Windeyer J, writing for the Full Court (with Darley CJ and Foster J), stated at 43:

121. [587]

     Windeyer J also referred with approval to the passage from Wingrove v Wingrove at 83, where Sir J Hannan stated that it was not sufficient to establish that a person has the power unduly to overbear the will of a testator. It is also necessary to prove that the power was exercised and that it was by means of that exercise that the will was produced.

122. [588]

     In Buckley v Maddocks (1891) 12 Lr (NSW) Eq 277, Stephen J considered Buckley v Millar, Callaghan v Myers and the primary judgment in Watson v Kerridge, noting that counsel for the defendant disclaimed reliance upon these cases as similar in detail but as instead establishing the principle that direct evidence need not be given to prove undue influence. His Honour referred to a presumption arising against the plaintiff from her conduct in procuring the preparation and execution of the will, although it is not clear whether that presumption related to that arising from suspicious circumstances or from a particular kind of relationship recognised in equity. Ultimately, the Court determined that it had not been proven that the plaintiff exerted any undue influence on the defendant or that the will was brought about by means of such influence.

123. [589]

     More recently, Callaghan v Myers was cited in Revie v Druitt [2005] NSWSC 902 (Revie v Druitt) at [14], by Windeyer J as an example of a defence of undue influence being successful.

124. [590]

     In the first instance decision of Tobin v Ezekiel, Re; Estate of Ezekiel (2011) 6 ASTLR 358; [2011] NSWSC 81 at [43], Brereton J (as his Honour then was) also referred to Callaghan v Myers as follows:

125. [591]

     The modern authorities and academic texts recognise that there are no presumptive relations of influence in probate, with undue influence requiring proof by the party asserting it: Winter v Crichton at 121; Salvation Army v Becker at [63]–[64]; Boyce v Bunce [2015] NSWSC 1924 (Boyce v Bunce) at [56], per Lindsay J; Blendell v Byrne at [453]; Rofe at [159]; Revie v Druitt at [51]; J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) at [15-020]–[15-040]; and G E Dal Pont, Law of Succession (3rd ed, 2020, LexisNexis Butterworths) at [2.41]–[2.42].

126. [592]

     In Salvation Army v Becker at [62], Ipp JA (with whom Mason P and McColl JA agreed) held that the equitable doctrine of undue influence does not apply to testamentary gifts:

127. [593]

     Having regard to the above, I am not persuaded by the Schwankes’ submission that the law of New South Wales has fallen into error since Callaghan v Myers. In my view, the weight of authority favours the view that undue inference in probate must be proven by the defendants but may be established by circumstantial evidence and inferential reasoning, and that this Court should not proceed on the basis of a presumption, as in equitable undue influence, which would presume that a will is not the exercise of a testator’s free will based on the existence of the doctor (beneficiary) and patient (testator) relationship and the gifts being substantial, with the onus shifting to the propounder of the will having to establish that the will was the free, voluntary and independent act of the patient.

128. [594]

     That an undue influence case may be determined based on circumstantial evidence and the use of inferential reasoning is not surprising. As Mann J observed in Schrader v Schrader [2013] All ER (D) 89 (Mar) at [96]:

129. [595]

     A circumstantial evidence case turns on the strength of the evidence overall, with the question for the Court usually being whether undue influence is established when all the surrounding circumstances are taken into account and consideration is given to the terms of the will and the manner in which it was actually executed: Blendell v Byrne at [456].

130. [596]

     In a purely circumstantial case, where a will that was apparently regularly executed and made by a person of competent understanding is challenged on the ground of undue influence, the party asserting undue influence must go further than merely establishing the circumstances from which it is sought to have the inference drawn. It must also be established on the evidence overall that undue influence was exercised and that by means of its exercise, the will was produced: Rofe at [158]; and Winter v Crichton at 121, citing Wingrove v Wingrove at 83 and Boyse v Rossborough.

131. [597]

     As to the standard of proof, it is on the balance of probabilities, noting that the allegation of undue influence in this case is a serious one as it involves allegations of manipulative conduct to which the Briginshaw v Briginshaw principles and s 140 of the Evidence Act applies: Tobin v Ezekiel at [48]; Blendell v Byrne at [451].

132. [598]

     As already noted, this onus may be discharged by circumstantial evidence and the drawing of appropriate inferences from the whole of the evidence (including for example, inferences from the nature and existence of the patient and doctor relationship between Mr McClure and Dr Alexakis and the gifts to Dr Alexakis under the 2017 Wills) to show that, on the balance of probabilities, the circumstances attending the execution of the 2017 Wills or the inclusion of the Impugned Clauses are inconsistent with the 2017 Wills having been obtained or included other than by undue influence on the part of Dr Alexakis. In my view, what must be shown is not that undue influence and a lack thereof are equally likely possibilities but that, on the whole of the evidence, the inference to be drawn, and which is more likely than the contrary, is that the testator has been unduly influenced: Blendell v Byrne at [461], citing Brown v Guss [2014] VSC 251 at [393]; and Nicholson v Knaggs at [137].

133. [599]

     As stated, it is for the Salvation Army and the Schwankes to establish undue influence.

134. [600]

     In this case, as there is no direct evidence of pressure or coercion by Dr Alexakis, the question is whether undue influence on the part of Dr Alexakis is to be inferred from the circumstantial evidence. In my view, the answer to that question is no. Having considered the totality of the evidence and the parties’ submissions, I do not consider that the circumstances attending the preparation and execution of the 2017 Wills with the Impugned Clauses raise a more probable inference in favour of undue influence than not.

135. [601]

     This is primarily for the following reasons: I am not persuaded that there was an agreement, arrangement or some understanding between Mr McClure and Dr Alexakis that Mr McClure would make a will in Dr Alexakis’ favour in return for him getting Mr McClure out of the RPAH and providing care for him at home; I am satisfied that Mr McClure initiated the making of his new will in June 2017 in a manner consistent with his stated intention to change his will and remove the Salvation Army; and, as I have found (at [496]–[537] above), Dr Alexakis was not instrumental in providing the instructions for the 2017 Wills, was not involved in their preparation, drafting or execution and did not know that he was a beneficiary under them at the relevant times.

136. [602]

     In support of its contention that Dr Alexakis engaged in conduct that amounted to undue influence as recognised by the modern authorities, the Salvation Army referred to the comments of Rolfe J in Brand v Brand (Unreported, Supreme Court of New South Wales, Rolfe J, 10 December 1991) (Brand v Brand), where his Honour stated at 117:

137. [603]

     In Brand v Brand, Rolfe J set aside a will for lack of knowledge and approval. He characterised the conduct of the testatrix’s grand-daughter (the defendant) as undue influence but felt constrained in making a finding of that nature by reference to authority that the “influence which must be shown to avoid a will must amount to force or coercion destroying free agency” and the high burden of proof when sought to be proved by inference, as re-affirmed in Winter v Crichton.

138. [604]

     In Brand v Brand, the testatrix’s last will represented a complete change to her prior will as it excluded the testatrix’s adult son as executor and a beneficiary. Rolfe J found that this could not be explained other than by the manipulative conduct of the grand-daughter. Relevant to his Honour’s decision were findings that the grand-daughter had lied and deliberately concealed her involvement in having the testatrix sign a memorandum of transfer in relation to land (which was an important matter going to the ability of the testatrix to understand what was happening in relation to her will), the fact that the grand-daughter was present when the testatrix signed her will and other factors, such as the “somewhat confused language” in the will that dealt with the disposition of land.

139. [605]

     As set out at [505] above, I do not consider that Dr Alexakis deliberately lied and concealed his knowledge about Mr McClure’s testamentary intentions regarding the Salvation Army, his involvement leading to the making of the 2017 Wills or his conversations with Mr McClure.

140. [606]

     I accept that Dr Alexakis held a position of trust and confidence in relation to Mr McClure and possessed the power to influence him. Mr McClure looked to and was reliant on Dr Alexakis for the provision of medical care and assistance with other matters which made him susceptible to Dr Alexakis’ authority. The regularity of Dr Alexakis’ presence in Mr McClure’s life before, during and after Mr McClure’s second admission to the RPAH and Mr McClure’s high regard and gratitude for Dr Alexakis’ assistance undoubtedly played a significant role in Mr McClure’s testamentary decisions to include Dr Alexakis as a beneficiary in his 2017 Wills.

141. [607]

     However, the evidence as a whole does not persuade me that it should be inferred that Dr Alexakis’ presence and conduct at the RPAH and later, when he spoke with and visited Mr McClure at the Strathfield Home, involved Dr Alexakis seeking to ingratiate himself into Mr McClure’s affections or exercising some form of control over Mr McClure’s testamentary deliberations (whether by way of a quid pro quo arrangement with Mr McClure in return for the provision of services or otherwise) to achieve a result in which Mr McClure would make wills in his favour in June or July 2017. Nor do I consider that the more probable inference is that Dr Alexakis’ presence and conduct at the RPAH and later had the effect of leading Mr McClure to make a will that he did not wish or intend to make at the time of execution. Mr McClure may have been reliant on Dr Alexakis for care and susceptible to his influence, but the evidence also paints a picture of a man who would not yield easily to attempts by Dr Alexakis to manipulate and place pressure on him in respect of his testamentary intentions that would result in a will that he did not wish to make.

142. [608]

     The contact, care and assistance Dr Alexakis provided to Mr McClure at the RPAH and post-discharge may, at times, have gone beyond that which he was required to provide as part of his GP duties, but I do not consider that it should be inferred that that conduct involved Dr Alexakis engaging in strategies to influence and manipulate Mr McClure’s will-making. In my view, Dr Alexakis’ actions are explicable as involving the care and assistance that a longstanding and concerned GP might provide in response to requests made by an elderly, terminally ill, stubborn and demanding patient who had a history of absconding from hospital, was distressed at being in hospital again, wanted to go home and had no trusted advisors or, it seems, close friends who Mr McClure thought he could call on to provide him with the support and assistance he wanted at the relevant times.

143. [609]

     In my view, the evidence does not demonstrate or suggest that Dr Alexakis encouraged Mr McClure to make his wills. He recommended that Mr McClure utilise other lawyers, including the Public Trustee, before referring and then introducing him to Mr Andresakis having disclosed the existence of a professional relationship between them. Dr Alexakis also encouraged Mr McClure to retain additional home care services and utilise medical care from others, rather than Mr McClure relying on him and Ms Nasr, which Mr McClure mostly refused.

144. [610]

     Dr Alexakis gave evidence, which I accept, that he refused Mr McClure’s offer of $10,000 to assist him to abscond from the RPAH. After the police investigation, Dr Alexakis told Mr McClure that he would be withdrawing as his GP and that Mr McClure should obtain legal advice and reassess his “last will and testament”. Such acts do not, in my view, speak of a man who was seeking or had sought to manipulate Mr McClure in relation to his testamentary intentions to make a large bequest in his favour.

145. [611]

     I am satisfied that Mr Andresakis understood the requirements for making a valid will and genuinely believed that the instructions he had received from Mr McClure represented Mr McClure’s free, capable and independent directions for the preparation of his wills and there was no undue influence acting upon Mr McClure (T264.49–265.1). Mr Andresakis also appeared to have understood his ethical obligations. He gave evidence that he would have stopped acting if Mr McClure had told him that the reason for the bequests to Dr Alexakis was that Dr Alexakis had arranged to get him out of hospital and agreed to look after him at home (T257.48–258.4). He also acted appropriately by arranging for the 10 October letter (at [392]–[394] above) to be sent to Mr McClure and recommending that he engage the services of another independent firm of solicitors to review and advise him about his will to address the issue of undue influence after the interview with the police.

146. [612]

     However, with due respect to Mr Andresakis, and notwithstanding that I have concluded that the 2017 Wills were not the result of Dr Alexakis’ undue influence, I consider there to be force to the defendants’ submissions that Mr Andresakis was in a position of conflict given the status of Dr Alexakis, Mrs Alexakis and her family as established clients of his firm, and that he failed to make appropriate enquiries of Mr McClure in that context: Dickman v Holley; and Pates v Craig & Public Trustee at 36–7.

147. [613]

     Mr Andresakis took instructions from Mr McClure for the 2017 Wills in the absence of Dr Alexakis and satisfied himself of Mr McClure’s testamentary capacity. However, it is apparent from Mr Andresakis’ evidence (at [220] and [357] above) that he simply accepted Mr McClure’s instructions and reasoning. Mr Andresakis may not have considered there to have been any undue influence acting upon Mr McClure at any point in time but, in circumstances where he had been introduced to Mr McClure by an established client of his firm who was a major beneficiary under the 2017 Wills, in my view, Mr Andresakis should have taken further steps to explore Mr McClure’s reasons for making the sizable bequests to Dr Alexakis. In particular, he should have asked why Mr McClure changed his instructions to increase the bequests to Dr Alexakis under the July Will, sought to understand the circumstances that brought about the McClure Document and satisfied himself, by asking questions of Mr McClure, that Dr Alexakis had not instigated or discussed with Mr McClure the changes to the will. It follows that I do not consider that Mr Andresakis’ role in the will-making processes acted as a complete mitigant against undue influence (or unconscionable conduct): Johnson v Buttress at 120, per Latham CJ.

148. [614]

     It is, however, significant that only days after making the June Will, Mr McClure was interviewed by doctors who were concerned about Dr Alexakis’ influence on Mr McClure’s will-making and Mr McClure was able to explain his rationale for changing his will and aspects of its contents to Drs Wroth, Lim and Fernandes in a manner consistent with what Mr McClure told Mr Andresakis, and without any indication that the will he executed was not what he wanted. During those discussions, Mr McClure did not say anything to suggest that the June Will was made as a result of Dr Alexakis’ undue influence nor anything to indicate that it was made because Dr Alexakis was going to assist Mr McClure to leave the RPAH or care for him at home.

149. [615]

     Mr McClure also made no complaint to or raised any suggestion with Dr Spalding, the police or Mr Myhill that he had been pressured or coerced by Dr Alexakis into making the 2017 Wills. Even when Mr McClure spoke to Mr Myhill in November 2017, Mr McClure referred to himself as the person who persuaded Dr Alexakis to do something, rather than the will he made in the RPAH having been made against his wishes or due to the manipulation of Dr Alexakis. Even after Mr McClure was no longer in contact with Dr Alexakis and Dr Alexakis' power to influence Mr McClure had diminished, Mr McClure had the opportunity to make a new will to remove Dr Alexakis and chose not to do so.

150. [616]

     That leads me to Mr Myhill’s evidence and the reasons why I do not accept the defendants’ contention that the June Will and, by extension, the July Will, were made, or the Impugned Clauses included in them, as the result of the alleged arrangements between Dr Alexakis and Mr McClure and that undue influence has been established as a result.

151. [617]

     I accept that there were conversations between Mr Myhill and Mr McClure on 1 November 2017 and following and that Mr Myhill’s account of them (as set out at [402]–[410] above) is a generally truthful record of what Mr McClure said. Given the passage of time, I place more weight on the contents of Mr Myhill’s contemporaneous file note to the extent of any inconsistency between it and Mr Myhill’s affidavit and oral evidence and find it more likely that Mr McClure did not refer to an “agreement” during his discussion with Mr Myhill on 1 November 2017.

152. [618]

     The enquiry to be made is what can be taken from Mr McClure’s statements to Mr Myhill having regard to the other evidence in the case, including that of Dr Alexakis who denies he discussed or came to an arrangement or understanding with Mr McClure of the kind referred to in Mr Myhill’s evidence.

153. [619]

     Dealing with the other evidence first, the defendants point to a range of matters that they say favour the probability that an arrangement existed between Mr McClure and Dr Alexakis to make provision in his will for Dr Alexakis in return for Dr Alexakis helping him get home and that this resulted in the making of the June Will. They say that there are additional factors which favour the probability of the existence of a further arrangement that Dr Alexakis would care for Mr McClure at home and ensure that he could stay at home in return for which Mr McClure would increase the provision in his will in favour of Dr Alexakis, and that the July Will was made as a result.

154. [620]

     As to the matters raised in relation to the June Will, I do not take much from Mr McClure’s references to himself as a “prisoner” in the RPAH and his analogy to the Count of Monte Christo which, the Salvation Army submitted, was reflective of Mr McClure seeing himself in the position of the Count who had to bribe the Governor of the prison to get out of gaol (Outline of Final Submissions of First Defendant at [10]–[11]; T500.12–501.4) .

155. [621]

     Mr McClure was clearly desirous of not staying in the RPAH for long, but the evidence indicates that he only used the expression “prisoner” from the evening of 13 June 2017, after the June Will was made. In my view, it is reasonable to infer that Mr McClure's references to being a prisoner were likely prompted by the 13 June consultation with Drs Wroth, Lim and Fernandes and his unsuccessful “Code Black” incident and are not indicative of an arrangement made prior to 6 June 2017.

156. [622]

     In my view, the Salvation Army’s reliance on the “Count of Monte Christo” reference takes the literary analogy too far and should not be considered as anything more than a reflection that Mr McClure felt he was being kept at the RPAH against his will and needed to escape. This is particularly so given Dr Alexakis was not keeping Mr McClure in hospital against his will and it was the Mad Priest, not the Count of Monte Christo, who offered money to his gaoler in return for his release. I reject the Salvation Army’s submission that Mr McClure “obviously confused the story” (T500.38).

157. [623]

     The fact that Mr McClure offered $10,000 to Dr Alexakis to get him out of hospital has more force. That offer is not inconsistent with Mr McClure offering Dr Alexakis a testamentary benefit in return for helping him to get him out of hospital in the context of Mr McClure’s terminal illness. However, as I have said, I accept Dr Alexakis’ evidence that he rejected Mr McClure’s offer and his evidence that he did not know that he was to be a beneficiary under the June Will.

158. [624]

     I have already dealt with Mr McClure’s apparent uncertainty as to the precise benefit to give to Dr Alexakis in the June Will, with him starting at 10% then moving to 70% then 65%, and his apparent ignorance of the inability to give a percentage share of his estate rather than a dollar amount or specifying particular assets. This may speak to a lack of clarity around his testamentary intentions before, and at some time during the 6 June meeting, but I do not accept the submission that it is suggestive of a need to make a will in Dr Alexakis’ favour or that any such uncertainty gives rise to an inference that Dr Alexakis suggested to Mr McClure that he should receive a percentage share of Mr McClure’s estate and specified those percentages to him.

159. [625]

     Another matter relied on concerns Dr Alexakis’ visits to Mr McClure during his admission to the RPAH. It was submitted that the fact that Dr Alexakis did not visit Mr McClure in the RPAH during his first admission in early May 2017 and the frequency of Dr Alexakis’ visits in his second admission in June 2017 favoured the likelihood of the existence of an arrangement between he and Mr McClure.

160. [626]

     I do not take much from the fact that Dr Alexakis did not visit Mr McClure during his first admission to the RPAH in May 2017. Dr Alexakis’ affidavit and oral evidence explain that he visited Mr McClure during his second admission because Mr McClure asked him to come to see him and had threatened to abscond.

161. [627]

     The frequency of Dr Alexakis’ visits to Mr McClure at the RPAH prior to and after the making of the June Will is a factor that might be seen as suspicious and not inconsistent with the existence of the alleged arrangement. However, as I have explained at [608] above, Dr Alexakis’ regular visits and the assistance he provided to Mr McClure in the period prior to 8 June and after are equally explicable, if not more so, by reasons that are not so sinister. While it may be unusual for a busy GP to regularly visit an elderly, terminally ill patient in hospital, I am not persuaded that that matter, whether by itself or together with the other facts raised, makes it more probable than not that an arrangement existed whereby Dr Alexakis would assist Mr McClure to get out of hospital in return for Mr McClure making provision for him under his will.

162. [628]

     As to Dr Alexakis’ discussions with the RPAH staff and his conduct more generally, for the reasons set out at [498] and [511] above, I am not persuaded that Dr Alexakis gave Dr Lim a false reason for the neuropsychological assessment to deflect attention away from seeking support for a valid will in his favour or that Dr Alexakis suggested to Mr McClure that he should change his will and remove the Salvation Army as a beneficiary. Even if Dr Alexakis did make such a suggestion, I do not consider that it prompted the creation of the June Will or unduly influenced Mr McClure into making a provision in favour of Dr Alexakis in the context where Dr Alexakis had a stated intention to remove the Salvation Army as a beneficiary of his estate and Mr McClure was not so weak, frail or powerless to withstand pressure from Dr Alexakis about all matters relating to his medical care and affairs.

163. [629]

     In circumstances where the evidence indicates that the three calls made on 6 June 2017 were from Mr Andresakis to Dr Alexakis and are explicable as relating to making the practical arrangements for Mr Andresakis to meet with Mr McClure on 8 June 2017, I do not accept that those calls evidence an unhealthy interest on Dr Alexakis’ part in the making of the June Will. Dr Alexakis’ call to Mr Andresakis on the afternoon of 8 June 2017 together with Dr Alexakis’ knowledge that Mr McClure wanted to make a will suggests that Dr Alexakis likely knew or, at least, could have assumed that a will was being made on that day, although knowledge that the will was to be and had been made does not, to my mind, support a likelihood that Dr Alexakis had made arrangements with Mr McClure of the type alleged or that Mr McClure was unduly influenced by him.

164. [630]

     I accept the submission that Mr McClure was selective about what he told people, that his failure to tell Mr Andresakis of an arrangement “is beside the point” and is not indicative of the absence of an arrangement (Outline of Final Submissions of First Defendant at [56(d)]). However, it is telling, in my view, that the reasons given by Mr McClure for including Dr Alexakis in his will, as expressed to Mr Andresakis, were in terms that emphasised Mr McClure’s personal connection with Dr Alexakis and what had occurred in the past, namely, that Dr Alexakis had looked after Mr McClure for a number of years and had gone out of his way to visit him, rather than in terms that suggested that Mr McClure had some expectation that Dr Alexakis would help him to leave the hospital and care for him at home or reflected his gratitude for future services.

165. [631]

     I disagree with the submission that characterises Dr Alexakis’ conduct as demonstrative of an unhealthy urgency in his efforts to have Mr McClure discharged from the RPAH and that his dealings with Drs Lim and Spalding after 8 June were consistent with the existence of the arrangement that he would get Mr McClure out of hospital in return for receiving a benefit under his will.

166. [632]

     After the June Will was made, Dr Alexakis’ initial contact with Dr Lim related to “gate leave” only. His later contact with Drs Lim and Spalding needs to be considered in the context of the “Code Black” incident, Mr McClure’s apparent distress and concern that he was being kept as a prisoner, and his expressed wish that he should “just die” (at [254] above). Further, in my view, a fair reading of the text messages sent by Dr Alexakis to Dr Lim on 22 June 2017 suggests that Dr Alexakis was doing nothing other than raising concerns expressed by Mr McClure and making enquiries on his behalf in a reasonable manner.

167. [633]

     Dr Alexakis gave evidence that he was aware of Mr McClure’s dislike of the RPAH and the medical team from conversations he had with Mr McClure, and that Mr McClure had insisted that Dr Alexakis contact the doctors and specialists on his behalf, stating “I don’t want to talk to them, please call them and find out what is going on, I don’t know anything” (Alexakis at [61]). Having regard to Mr McClure’s character and past conduct, his likely belief that Dr Alexakis may have had more sway with the doctors at the RPAH than he did and the matters referred to at [632], Dr Alexakis’ evidence was plausible and I accept it.

168. [634]

     As to what Mr McClure said to Mr Myhill about Dr Alexakis in relation to the will made in the RPAH, Mr McClure’s statements need to be considered in the context of Mr McClure being in hospital again, his likely knowledge that he was close to death and his anger with Dr Alexakis for stepping aside as his GP. It is not difficult to understand why Mr McClure, a man with a suspicious nature, a tendency to mistrust and who was quick to take offence, would characterise Dr Alexakis’ conduct as a “betrayal”, describe him as “my enemy” and “not doing his job”, and state that their relationship had “not been a good one”. Mr McClure had trusted Dr Alexakis to provide him with medical care at home, considered him to be a friend with whom he had a connection and had recognised him by making significant bequests in his favour under his wills. As to Mr McClure’s comments about withstanding pressure, I find it more likely that they are references to Mr McClure’s meeting with the doctors on 13 June and the police interview, rather than indicative of an agreement reached with Dr Alexakis that made provision for Dr Alexakis in return for him getting Mr McClure out of hospital and providing care at home.

169. [635]

     I have carefully considered whether I can accept the accuracy of Mr McClure’s statement that he called his GP, asked for his help in getting home “and in return I encouraged him that I would put him in my will, I persuaded him”, and his statements to Mr Myhill about “an agreement”. The conclusion I have come to is that I cannot accept those statements as reliable evidence of the existence of the alleged arrangement or of undue influence on Dr Alexakis’ part.

170. [636]

     In my view, when considered against the whole of the evidence, the statements made by Mr McClure are sufficiently unclear in establishing that an arrangement was reached with Dr Alexakis or that he exercised undue influence. This is particularly so in the context of the circumstances in which the statements were made, as referred to at [634] above, and my findings at [447].

171. [637]

     Although some of Mr McClure’s factual statements to Mr Myhill are consistent with the evidence, there is an aspect that I do not consider to be a reliable account of what occurred between Mr McClure and Dr Alexakis, namely, Mr McClure’s assertion that Dr Alexakis attended the Strathfield Home after 5 October and knocked on the door repeatedly, stating “I want to be your friend”. Dr Alexakis denied attending on Mr McClure at the Strathfield Home after he told him he could no longer be his GP (on 5 October 2017) and rejected what Mr McClure had said to Mr Myhill about that matter as incorrect (T136.20–2).

172. [638]

     Dr Alexakis’ evidence on this issue was convincing and I accept it. Dr Alexakis may have developed some form of friendship with Mr McClure but he did not strike me as a man who would seek to impose himself on Mr McClure in that way in circumstances where Dr Alexakis had indicated that he would not visit Mr McClure as his GP after 5 October and an investigation into his conduct was apparently underway. I can only conclude that Mr McClure’s assertion was an exaggeration based on Dr Alexakis’ calls to Mr McClure in October 2017 (as described at [398]–[400] above) and a reflection of his suspicious nature.

173. [639]

     To my mind, it is also plausible that Mr McClure’s statements to Mr Myhill, that he had encouraged Dr Alexakis and persuaded him that he would put him in his will in return for getting out of hospital, involved Mr McClure’s reconstruction or the conflation of events based on Mr McClure’s offer to Dr Alexakis of $10,000 to help him abscond (an offer which Dr Alexakis rejected). It might also have been a justification in hindsight for why Mr McClure included Dr Alexakis in his wills.

174. [640]

     Consideration also needs to be given to Dr Alexakis’ evidence. Dr Alexakis was challenged at some length over the course of two days of cross-examination as to the existence of the alleged arrangements. He was not shaken on that issue; he maintained that he did not discuss or come to an arrangement with Mr McClure that involved Mr McClure making a will in his favour if Dr Alexakis helped him get out of hospital and provided care for him at home. See, for example, the following exchanges:

175. [641]

     Dr Alexakis could not recall Mr McClure saying words to the effect that Mr McClure “withstood pressure and now you won’t do your job” but agreed that Mr McClure was upset that Dr Alexakis was stepping back from his care as a GP and said that he felt betrayed by Dr Alexakis (T160.36–40). He rejected that Mr McClure felt betrayed because he felt that Dr Alexakis was going back on an understanding that they had reached that he would help him medically as and when he needed in return for putting Dr Alexakis in his will (T160.42–161.1).

176. [642]

     The Salvation Army and the Schwankes submitted that Dr Alexakis’ denials should not be accepted as he was not a witness of truth and the Court should prefer Mr McClure’s statements to Dr Alexakis’ evidence, referring to Dr Spalding’s evidence in cross-examination that she had no reason to doubt that Mr McClure was telling her the truth (T426.29–32). I do not think that the matters referred to by the defendants in their submissions justify me doing so. This is particularly because of the matters referred to at [634] and [636]–[639] above and because Mr McClure has been shown to have said different things to different people, to have made statements which resulted in others forming incorrect impressions (see, for example, at [370] and [446]) and, thus, was somewhat unreliable in what he said.

177. [643]

     I also found it improbable that Dr Alexakis would agree to Mr McClure including him in his will in return for getting Mr McClure out of hospital and providing him with care at home thereafter. Dr Alexakis could not control whether and when Mr McClure was to be discharged from the RPAH and his usual practice involved home visits and some home care assistance for elderly patients.

178. [644]

     Having regard to the above, I am simply unpersuaded that preference should be given to and inferences should be drawn from the untested statements made by Mr McClure over the tested and, in my view, credible evidence given by Dr Alexakis on this topic. To do so would require me to effectively accept that Dr Alexakis conditioned the provision of his medical care and assistance to Mr McClure on his inclusion as a beneficiary in Mr McClure’s wills. I do not consider that such a finding is justified based on the totality of the evidence in his case.

179. [645]

     It follows from this and my findings at [616]–[643] above, that I do not accept that the probabilities favour the existence of an arrangement between Mr McClure and Dr Alexakis that Mr McClure would make provision in his will for Dr Alexakis in return for Dr Alexakis helping him get home or that the June Will and the Impugned Clauses were the result of that arrangement or undue influence on the part of Dr Alexakis.

180. [646]

     As to the July Will, the Salvation Army submitted that even though Mr McClure did not mention the July Will to Mr Myhill, his evidence concerning the arrangement between Mr McClure and Dr Alexakis is readily understandable as encompassing that will, and the making of the July Will resulted from a continuous course of conduct on the part of Dr Alexakis. It was submitted that there was no other explanation why Mr McClure would increase the provision in favour of Dr Alexakis, from a 65% share to a devise of the Strathfield Home, its contents and 90% of the residue, apart from the existence of a further arrangement that Dr Alexakis would care for Mr McClure at home (and impliedly ensure that he could stay at home), and that Mr McClure did not make the July Will voluntarily with free will because he was desperate not to be sent back to hospital, there was a gross power imbalance between he and Dr Alexakis and the nature of the arrangement is not one which can be attributed to the rational thinking of a rational testator.

181. [647]

     For the reasons set out above and following, I do not accept that submission.

182. [648]

     In addition to Mr Myhill’s evidence, the defendants submitted that the probabilities favoured a finding that the July Will was made as a result of a further arrangement between Mr McClure and Dr Alexakis for various reasons to which I have also had regard. Some of them related to the circumstances leading up to the meeting on 5 July between Mr McClure and Mr Andresakis, the delivery of the McClure Document and the conversation between Mr Andresakis and Mrs Alexakis on 9 July 2017. For the reasons explained at [534]–[537], I do not consider that these circumstances give rise to the inference or warrant a finding that Dr Alexakis was implicated in the giving of instructions for the July Will or instrumental in ensuring that the arrangements took place for the July Will to be made. As I have found, Dr Alexakis’ involvement was limited to possibly arranging the meetings on 5 and 10 July and nothing more, a factor that does not, in my view, point to the existence of the alleged arrangement.

183. [649]

     Another factor relied on by the defendants was that Dr Alexakis did not seek to fill the “care hiatus” upon Mr McClure’s discharge from the RPAH on 26 May and only commenced home visits on or about 6 July once Mr McClure had given instructions for the July Will. Reliance was also placed on the fact that Dr Alexakis provided home care services outside the scope of usual medical services supplied by a GP.

184. [650]

     In my view, Dr Alexakis’ evidence adequately explained the “care hiatus”, why his home visits commenced on 6 July 2017 and why his provision of the “out of scope services” is not a factor that is indicative of the arrangement or undue influence in this case.

185. [651]

     Dr Alexakis gave evidence that after Mr McClure’s discharge from the RPAH, he would call Mr McClure to check whether he was okay and needed Dr Alexakis to come to the Strathfield Home. He said that following these calls he would update any changes on the SFMC medical file, arrange for Mr McClure’s medications and prescriptions to be delivered by the pharmacies to the Strathfield Home and follow up blood work when needed. He also said that, by and large, he thought that Mr McClure was “pretty much sick of doctors and sick of hospital and just wanted to enjoy a little bit of peace and quiet at home” (T169.10–23). The catalyst for Dr Alexakis’ home visit on 6 July appears to have been a phone call that Dr Alexakis received from Mr Nasr to say that Mr McClure was not well and her statement to him that she could not take his blood pressure or blood sugar levels as she was not authorised to perform such tests (Alexakis at [104]). Ms Nasr was not called by any party to give evidence. Dr Alexakis’ note of 6 July 2017 suggests that Mr McClure may have had an infection and a home visit was clinically required that day.

186. [652]

     As to the provision of the “out of scope” services, Dr Alexakis dealt with this in his affidavit evidence and gave oral evidence that checking a fridge was a standard thing he had done for 30 years, particularly for elderly patients. He also explained that Mr McClure’s medical conditions meant that Mr McClure needed reinforcement of his dietary plan and review of his gut and, for those reasons, it was paramount to make sure that the food in his fridge was appropriate (T168.5–18).

187. [653]

     The underlying premise to the Salvation Army’s submission is that something must have occurred which led to Mr McClure changing his recently expressed testamentary intentions in the June Will to leave the bulk of his estate to Dr Alexakis and the further arrangement and undue influence is the only rational explanation for this change. It was submitted that it was likely that, once home, Mr McClure’s mind turned to ensuring he stayed there via care from Dr Alexakis and, as a consequence, he would need to document the further arrangement via a new will. The Schwankes also submitted that, irrespective of whether there was an arrangement or not, the circumstances with respect to the July Will are troubling and very suspicious, particularly as Mr McClure was heavily reliant on Dr Alexakis and was vulnerable to his exploitation, and the absence of any explanation for why Mr McClure created the July Will means that the Court has the latitude to find that undue influence is the most likely explanation for the gifts to Dr Alexakis.

188. [654]

     It is not possible to say with certainty the reasons for the change in Mr McClure’s testamentary intentions as expressed in the July Will and why a new will was made within such a short period of time after making the June Will. In considering that matter, it is relevant to bear in mind that, after his discharge from the RPAH, Mr McClure was alone at home for most of the day, had time for reflection and knew that he was going to die soon. I also observe that the changes from the June Will included a specific bequest to Ms Nasr, a person who Mr McClure trusted and with whom he had quickly formed a good relationship, and bequests of specific personal items to Mrs H Schwanke. These bequests are indicative of consideration on Mr McClure’s part regarding his testamentary intentions that was independent of and unconnected with any alleged arrangement with Dr Alexakis and the provision of care to Mr McClure when he was at home.

189. [655]

     As to the increase in the provision in favour of Dr Alexakis, having regard to Mr McClure’s past approach to will-making and his character, it is perhaps not so surprising that, at this late stage of his life, Mr McClure might consider that Dr Alexakis, who visited and assisted him in the RPAH, who was speaking to him regularly by phone post-discharge and who had provided him with regular medical care over the past four years, was to be further preferred to the very few persons in Mr McClure’s life who, fairly or not, Mr McClure may have seen at that stage as less deserving of his estate. Whether it be Mr McClure’s Greek connection with Dr Alexakis, their past dealings or recent interactions, his respect and admiration for the doctor, his gratitude for the care he had been provided or, more likely, a combination of these matters, it seems to me that the change in Mr McClure’s testamentary intentions that led to the increased provision to Dr Alexakis in the July Will is more explicable by reference to circumstances other than the existence of the alleged further arrangement or pressure or manipulation on Dr Alexakis’ part in this case. This is particularly so as there was no evidence that Dr Alexakis, as opposed to Mr McClure, initiated the idea of making the July Will, spoke to Mr McClure about what the July Will should contain or discussed or was involved in the instructions given by Mr McClure to Mr Andresakis in relation to the July Will, Dr Alexakis was not present at the meetings on 5 and 10 July and Mr McClure was an astute and suspicious man.

190. [656]

     Thus, I do not accept that the probabilities favour the existence of a further arrangement between Mr McClure and Dr Alexakis that Mr McClure would make provision in his will for Dr Alexakis in return for Dr Alexakis caring for him at home, or that the July Will and the Impugned Clauses were the result of that arrangement or undue influence on the part of Dr Alexakis.

191. [657]

     In conclusion, I accept that Dr Alexakis occupied a position of trust, confidence and authority in relation to Mr McClure which, together with Mr McClure’s ill-health and circumstances, made Mr McClure susceptible to Dr Alexakis’ influence. I also accept that Dr Alexakis’ visits to Mr McClure in the RPAH, his introduction of Mr Andresakis to Mr McClure and his involvement in arranging their meetings enabled Mr McClure to see a solicitor and make the June Will and, later, the July Will. However, having considered the totality of the evidence, I am not satisfied that Dr Alexakis had some form of quid pro quo arrangement with Mr McClure of the type alleged by the defendants. Nor am I satisfied that, absent those arrangements, inferences should be drawn that Dr Alexakis exercised his power of influence by manipulating Mr McClure, that Dr Alexakis unduly influenced Mr McClure’s testamentary deliberations such as to effect the making of the 2017 Wills in his favour, or that the impact of Dr Alexakis’ influence and conduct was that Mr McClure made wills which he did not intend or wish to make. Put another way, I am not persuaded that it is more probable than not that Dr Alexakis’ interactions with Mr McClure involved some form of pressure (whether moral, practical or otherwise) or taking unfair advantage of Mr McClure that led Mr McClure or actually drove him to make the 2017 Wills and include Dr Alexakis as a beneficiary in the terms stated.

192. [658]

     Accordingly, I find that the Salvation Army and the Schwankes have not established that the 2017 Wills or the Impugned Clauses are invalid by reason of probate undue influence in this case.

193. [659]

     The distinction between fraud and undue influence is that fraud misleads a testator whereas undue influence overpowers the volition of the testator and coerces them to make a will: Skinner v Frappell [2008] NSWCA 296 (Skinner v Frappell) at [79], per Young CJ in Eq. (as his Honour then was) (with whom Basten and Campbell JJA agreed); Salvation Army v Becker at [65]–[66], citing The Public Trustee v Mullane (Unreported, Supreme Court of New South Wales, Powell J, 12 June 1999); Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [65], per Lindsay J.

194. [660]

     In a probate context, fraud embraces a wide category of conduct affecting testamentary disposition. It encompasses misleading and deceptive conduct, wilfully false statements, the suppression of material facts that may lead to a deceased executing a will they did not understand, did not intend to operate as their will or under which a misappropriation of assets has occurred, and circumstances where the fraudster intends to gain a benefit under a will for themselves or to prevent a benefit being received by a natural object of the testator’s bounty: Salvation Army v Becker at [66].

195. [661]

     Like undue influence, once a will has been shown to be duly executed by a competent testator, the onus of proving fraud rests on those who allege it: Salvation Army v Becker at [10], [59]–[69].

196. [662]

     Fraud may be established by inference from the facts. As it is a serious allegation to which the civil standard of proof applies, the Court must be comfortably satisfied that fraud has been made out according to the Briginshaw v Briginshaw principles and s 140 of the Evidence Act. Proof of fraud may require evidence that gives rise to a compelling inference rather than an inference of fraud together with a series of other inferences: Skinner v Frappell at [78].

197. [663]

     As already noted, the Salvation Army is the only party that pleads that the 2017 Wills are vitiated by fraud.

198. [664]

     At the hearing, two categories of conduct on the part of Dr Alexakis were submitted to be fraudulent by the Salvation Army. A third category of conduct pleaded by the Salvation Army was not pressed (Defence of First Defendant at [8(ii)] and [13(ii)].

199. [665]

     The first allegation is that Dr Alexakis fraudulently failed to disclose to Mr McClure that he had previously introduced Mr Andresakis to another testator, Mr Debnan, who had made a will giving the whole of his estate to Dr Alexakis. It was submitted that this amounted to fraud as it involved the suppression of material facts by Dr Alexakis with the intent to gain a benefit for himself under the 2017 Wills. The Salvation Army argued that it may be inferred that the reason Dr Alexakis did not tell Mr McClure about the Debnan Will was because he knew Mr McClure would have become suspicious and disclosure would have likely derailed the proposed will-making process.

200. [666]

     An initial difficulty with that allegation is that it was not Mr Andresakis who made the Debnan Will, it was Mr Skouteris. As I have found, Mr Andresakis did not know of the existence of the Debnan Will until sometime in 2021.

201. [667]

     At the hearing, the allegation was confined to the failure of Dr Alexakis to disclose the involvement of Andresakis & Associates in preparing the Debnan Will.

202. [668]

     There is no dispute that Dr Alexakis did not disclose to Mr McClure that Mr Debnan made a will that was prepared by Andresakis & Associates and that left the whole of the estate to him. Dr Alexakis accepted that matter in cross-examination although he did not agree with the proposition that he did not disclose that fact because Mr McClure would “go cold” on the idea of making a will in Dr Alexakis’ favour (T60.34–45). Dr Alexakis’ evidence, which I accept, is that he did not give any thought to Mr Debnan at the time that Mr McClure requested assistance with finding a solicitor and that it was Mr McClure’s judgement and choice as to whether he was actually going to accept legal assistance from Mr Andresakis or not (T61.42–7).

203. [669]

     To the extent that Dr Alexakis’ evidence is probative on the question of fraud, it does not suggest that his failure to disclose his position under the Debnan Will to Mr McClure was motivated by any intent to gain benefits under his will.

204. [670]

     Irrespective of Dr Alexakis’ evidence, I accept Dr Alexakis’ submission that it is entirely speculative as to what Mr McClure would have done if Dr Alexakis had told Mr McClure about the Debnan Will (T571.42–6). Mr McClure may have been a naturally suspicious person who was willing to terminate instructions from lawyers he distrusted, but I fail to see how the fact that Andresakis & Associates prepared a will in 2005 that benefited Dr Alexakis would have been material to Mr McClure’s will-making considerations in 2017 or a matter that Mr McClure might have expected Dr Alexakis to disclose prior to introducing Mr Andresakis to him.

205. [671]

     It follows that I do not accept that the first category of conduct amounts to fraud that vitiates the 2017 Wills.

206. [672]

     The second category of conduct is based on the allegation that Mr McClure made the June Will in reliance upon a fraudulent misrepresentation by Dr Alexakis that he would (and impliedly could) look after Mr McClure at home after his discharge from the RPAH to the exclusion of others (T524.6–11). It was submitted that the nature of the advice Dr Alexakis gave to Mr McClure on 10 July 2017 demonstrates that he could not provide assistance for all of Mr McClure’s care needs at home.

207. [673]

     The answer to this claim is that there is no evidence that a representation was made by Dr Alexakis to Mr McClure, whether prior to 8 June 2017 or after, that Dr Alexakis would care for Mr McClure to the exclusion of others if and when Mr McClure was discharged home.

208. [674]

     To the extent the claim relies on an alleged second arrangement pertaining to the July Will (T524.1–11), it must be premised on Mr McClure’s statement to Mr Myhill in November 2017 that Mr McClure asked Dr Alexakis to “arrange for me to go home from hospital and look after me at home” and that Dr Alexakis agreed. However, in my view, that statement does not amount to a representation by Dr Alexakis that he would be the only person to provide care to Mr McClure while he was at home.

209. [675]

     A further difficulty with this contention is that the facts make clear that Mr McClure was aware that, in addition to receiving care from Dr Alexakis, he would need to engage private care providers (which he did) and that care was also to be made available from the Concord Hospital palliative care team. There is also evidence that Dr Alexakis provided advice to Mr McClure about the need to utilise care from others besides himself, prior to the making of the July Will (see, for example, at [277] and [295] above).

210. [676]

     Accordingly, the Salvation Army’s claim that the 2017 Wills are vitiated by Dr Alexakis’ fraudulent conduct fails.

211. [677]

     The ultimate task for the Court is to identify the instrument, or part of the instrument, that represented Mr McClure’s last will as a free and capable testator: Tobin v Ezekiel at [44].

212. [678]

     There is no dispute that Mr McClure was a capable testator. For the reasons outlined above, I have found that Mr McClure knew and approved the 2017 Wills, that the 2017 Wills (and the Impugned Clauses) were not procured by undue influence in the probate sense and that they are not vitiated by fraud.

213. [679]

     It follows that I am satisfied that the July Will represents Mr McClure’s last valid will. I propose to make an order granting letters of administration of the July Will to Dr Alexakis as a beneficiary under that will and I will dismiss the Salvation Army’s claim for the grant of probate of the 2016 Will and the Schwankes’ claim that letters of administration be granted to an independent person in relation to the July Will, or alternatively the June Will, without the Impugned Clauses.

214. [680]

     While conscious that Mr McClure’s nomination of his GP as the main beneficiary of his large estate under the 2017 Wills may shock members of the community, I note that the importance of respecting a testator’s choice has been recognised in the authorities: see, for example, Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [143], per Macfarlan JA; Re the Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 290–1, per Gleeson CJ. It was for Mr McClure, not this Court, to decide the persons who were to receive his testamentary bounty and to exercise the power to freely dispose of his assets as he saw fit.

Equitable claims raised by the cross-claims

1. [681]

   The Salvation Army and the Schwankes’ claims for relief by way of a constructive trust are based on the application of equitable undue influence to the 2017 Wills and the Impugned Clauses, and rely on the obiter dicta comments of the High Court majority (Gaudron, Gummow and Kirby JJ) in Bridgewater v Leahy at [62]–[63], as follows:

2. [682]

   The Salvation Army submitted as follows (at T494.46–9):

3. [683]

   The Schwankes also submitted that the comments in Bridgewater v Leahy opened the door to expanding equitable undue influence to apply in the testamentary context in this case (Closing Submissions for the Third and Fourth Defendants at [105]).

4. [684]

   The Salvation Army and the Schwankes said that this was a strong equitable undue influence case because of the presumption of undue influence that arose from the doctor and patient relationship between Dr Alexakis and Mr McClure, the absence of any independent legal advice given to Mr McClure and the fact that the “transaction was grossly improvident”. The Salvation Army submitted that Dr Alexakis had failed to establish that the bequests to him under the 2017 Wills were the free, independent and voluntary acts of Mr McClure, and the Schwankes submitted that it would be clear to the Court that, if the presumption were available, Dr Alexakis would not be able to rebut the presumption of undue influence on the available evidence. All of the defendants relied on essentially the same factual matters in support of their probate undue influence claims.

5. [685]

   In support of the application of equitable undue influence in this case, the Salvation Army submitted that equitable principles may be brought into play to impose a trust on a legatee or executor if it is not possible for the law of probate to achieve a just result, referring to that proposition as the principle emerging from Allen v M'Pherson [1847] 1 HL Cas 191; (1847) 9 ER 727 (Allen v M’Pherson) and noting the observations to similar effect in J Campbell’s extra-judicial writing, “The Overborne Elderly: A Forensic toolkit”, article delivered to Blue Mountains Law Society Succession Conference, Medlow Bath, September 2020 (The Overborne Elderly) which, at 52, refers to the “Bridgewater Hypothesis” and Allen v M'Pherson.

6. [686]

   The Salvation Army also submitted that, although the High Court (Gaudron, Gummow and Kirby JJ) in Bridgewater v Leahy referred to the estate being held on trust for the residuary beneficiaries or the next of kin, it is arguable that this would not be the case where a testator left a number of wills such that, in this case, the gifts to Dr Alexakis ought to be held on trust for the Salvation Army as the disappointed beneficiary of a previous will (Outline of Final Submissions of First Defendant at [46]–[47]).

7. [687]

   The Schwankes submitted that there is no reason in principle as to why equity should not have jurisdiction to exercise the doctrine of undue influence in the case of testamentary gifts, particularly as it has been recognised that the law does not provide adequate protection to those affected by a vulnerable testator who is coerced or tricked into making a will.

8. [688]

   They submitted, by reference to Parfitt v Lawless (1872) LR2P&D 462, that the historical rationale for the limits placed on equity’s jurisdiction (namely, that casting a duty on a recipient of a testator’s gift to prove the circumstances in which the gift was made would in most cases not be possible to discharge and that the “natural influence” of parent over a child, husband over a wife or attorney over a client may lawfully be exercised to obtain a will) is no longer persuasive because people live far longer and thus become more frail and vulnerable to risks of abuse.

9. [689]

   The Schwankes also submitted that “equity is not stagnant but adaptable” (referring to the observations of Lindsay J in Boyce v Bunce at [202]) and argued that there was no binding authority that prevented the Court from pursuing equitable undue influence and the outcome they sought, namely, that equity impose a constructive trust over the gifts to Dr Alexakis in their and Mr Camilleri’s favour (as the other residuary beneficiaries) and not for the Salvation Army (Closing Submissions for the Third and Fourth Defendants at [113]).

10. [690]

    Dr Alexakis argued that there was no basis for this Court to apply principles of equitable undue influence in a probate setting, relying on Ipp JA’s comments in Salvation Army v Becker (referred to at [592] above). As to the imposition of a constructive trust on the ground of undue influence, Dr Alexakis referred to and relied on The Overborne Elderly article, where Campbell observed, at 57, that: “[t]hese cases do not deny the existence of the jurisdiction suggested by the Bridgewater Hypothesis but offer little hope it will ever be availed of” (T564.12–4).

11. [691]

    As already noted, Mr Camilleri did not address the contention of equitable undue influence at the hearing. He relied on the submissions made by the Schwankes and the Salvation Army about this matter.

12. [692]

    In Bridgewater v Leahy, the deceased’s last will provided that his residuary estate would pass to his daughters, subject to an option granted to the deceased’s nephew to purchase certain property. Between the making of the will and his death, the deceased entered into contracts of sale with his nephew in respect of certain land and a deed of forgiveness, under which the deceased forgave his nephew all of the amounts owing under the contracts other than $150,000. The effect of the disposition and the deed of forgiveness was that the value of the deceased’s estate was significantly reduced to the detriment of the deceased’s daughters. The daughters challenged the deceased’s will on the grounds of undue influence and lack of knowledge and approval and challenged the land transfer and the deed of forgiveness on the grounds of undue influence or unconscionable conduct on the part of the nephew and the solicitor who prepared the will.

13. [693]

    At trial, de Jersey J (as his Honour then was) held that none of the claims were made out: Bridgewater & Ors v Leahy & Anor (Unreported, Supreme Court of Queensland, de Jersey J, 23 August 1995). An appeal to the Queensland Court of Appeal was also dismissed: Bridgewater v Leahy [1997] QCA 036. The appeal to the High Court was limited to claims of unconscionable conduct relating to the inter vivos transaction comprised of the deed of forgiveness. There was no appeal in relation to the will and undue influence was not relied upon as a separate ground of challenge to the deed of forgiveness. It was in this context that the observations of the majority in Bridgewater v Leahy at [62]–[63] were made.

14. [694]

    In Boyce v Bunce at [33], Lindsay J characterised the observations of the majority as:

15. [695]

    In Boyce v Bunce, Lindsay J did not have to decide that matter as the application before him raised the question of whether a claim for undue influence had been properly pleaded. However, his Honour’s review of the law of undue influence, in which he contrasted the equity and probate jurisdictions by reference to their historical origins, the parties to the litigation and the onus of proof (at [44]–[60]), and his later observations (at [198]–[204]), are instructive on the application of the “Bridgewater Hypothesis” to this case.

16. [696]

    His Honour referred to the different bases for the equitable and probate jurisdictions, stating, at [44]–[45] and then at [56]–[57]:

17. [697]

    His Honour recognised that probate presumptions are a means to answering the essential question of whether a document is the last will of a free and capable testator (at [58]) and that there has been academic criticism and calls for a modified doctrine of undue influence in probate cases, stating at [201]–[204]:

18. [698]

    In Blendell v Byrne, the defendants sought to set aside a will on the grounds of probate undue influence and also raised equitable undue influence by way of challenge in a cross-claim. Hallen J found that probate undue influence had not been established.

19. [699]

    His Honour referred to the observations of Lindsay J in Boyce v Bunce at [33] and [198]–[204]. His Honour also noted the statement of Ipp JA (with whom Mason P and McColl JA agreed) in Salvation Army v Becker at [62], where Ipp JA referred to Bridgewater v Leahy as authority for the proposition that probate undue influence differs from equitable undue influence, with the latter not applying to testamentary gifts. Ipp JA also added, at [70]:

20. [700]

    In Blendell v Byrne, Hallen J considered the defendant’s cross-claim of equitable undue influence but did so without further discussion of whether the concept could be relied on, stating at [499]:

21. [701]

    Hallen J also identified a further issue, being the lack of clarity as to who the proposed constructive trust would favour, noting that there was a respectable argument that if the deceased’s intention was tainted by undue influence then the gift of the whole of the estate should be treated as undisposed property which would fall into residue or there would be an intestacy: at [497]. At [498], His Honour stated that it was unnecessary to grapple with “these difficult and, so far, unanswered issues” regarding this question because of his conclusion that actual undue influence had not been established as the claim had no solid evidential foundation in the equity sense (at [508]).

22. [702]

    In an interlocutory application in these proceedings, Slattery J referred to Bridgewater v Leahy, Boyce v Bunce and Blendell v Byrne, and stated (Alexakis v Masters [2021] NSWSC 158 at [30]):

23. [703]

    In The Overborne Elderly, after noting that the comments of the majority in Bridgewater v Leahy at [62]–[63] were obiter dicta (as the High Court did not rely on principles of undue influence and instead relied on unconscionable conduct and an alleged fiduciary duty), Campbell observed that the “Bridgewater Hypothesis” could support a gift made by will being subject to a trust where the donee obtained it through conduct that would amount to undue influence if applied to an inter vivos transaction and stated, at 45:

24. [704]

    However, Campbell also expressed the view (at 55 and 58) that the jurisdiction postulated in the Bridgewater Hypothesis is unlikely to operate in practice for various reasons, including:

25. [705]

    In my view, there is force to these observations and the matters referred to by Lindsay J (outlined at [694]–[697] above). I agree with his Honour and Hallen J that it is difficult to see the necessity or justification for assimilating equitable undue influence into the concept of probate undue influence when regard is had to the rationale and objectives of the probate jurisdiction compared to that in equity.

26. [706]

    The High Court in Bridgewater v Leahy may have invited consideration of the application of equitable doctrines of undue influence to gifts such as those made to Dr Alexakis under the 2017 Wills, but it also appears that it is not for this Court to enquire as to how the law might be changed or seek to apply any such change in this case: Salvation Army v Becker per Ipp JA and Blendell v Byrne per Hallen J.

27. [707]

    Nevertheless, as it was pressed at the hearing, I have approached the claim on a similar basis as that adopted by Hallen J in Blendell v Byrne by withholding further comment on the question of whether this Court can rely on the concept of equitable undue influence in the probate context and dealing with the equitable undue influence claims as raised by the defendants.

28. [708]

    The starting point is that the application of equitable undue influence would give rise to a presumption of undue influence on the part of Dr Alexakis, as the doctor and patient relationship is recognised as one to which the presumption applies. This would have the effect of shifting the onus on to Dr Alexakis to rebut the presumption of undue influence by satisfying the Court that Mr McClure knew and understood what he was doing and that Dr Alexakis did not take advantage of Mr McClure such that it could be said that Mr McClure was acting independently of any influence arising from Dr Alexakis’ position of authority or ascendancy: Johnson v Buttress at 134–6, per Dixon J; Quek v Beggs (1990) 5 BPR 11,761 at 11,764–5, per McLelland J (as his Honour then was), applied in Aslanidis v Aslanidis [2020] NSWSC 110 at [69], per Lindsay J, and in Hayward (as Executor of Felton Estate) v Speedy & Felton [2021] NSWSC 943 at [49], per Lindsay J.

29. [709]

    In this case, I am satisfied that the “presumption” of undue influence has been rebutted.

30. [710]

    As I have found at [492]–[541], Mr McClure knew and understood his actions when he made the 2017 Wills and the effect of their contents.

31. [711]

    Overall, the evidence satisfies me that Dr Alexakis did not take advantage of Mr McClure in the circumstances surrounding the making of the 2017 Wills and Mr McClure’s inclusion of the Impugned Clauses in favour of Dr Alexakis represented his free, independent, informed and voluntary acts that were not the result of Dr Alexakis’ improper use of his influence over Mr McClure. This is for the reasons and the factual findings I have made, as set out above.

32. [712]

    In particular, I am satisfied that it has been shown that Mr McClure was acting independently of Dr Alexakis’ influence when he made the 2017 Wills having regard to the following findings that I have already made: Dr Alexakis and Mr McClure did not have 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; Mr McClure initiated the process to make a new will in June 2017 in a manner consistent with his stated intention to change his will and remove the Salvation Army and the process to change and make the July Will; Dr Alexakis rejected the $10,000 offer to help Mr McClure abscond and suggested that Mr McClure use other lawyers before introducing him to Mr Andresakis; Dr Alexakis was not instrumental in providing the instructions for the 2017 Wills, was not involved in their preparation, drafting or execution, and was not present at the meetings between Mr McClure and Mr Andresakis; Dr Alexakis did not know that he was to be a beneficiary under the 2017 Wills or the terms of those wills when they were made; and Mr McClure was not so weak, frail or powerless to withstand pressure from Dr Alexakis about all matters relating to his medical care and affairs.

33. [713]

    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.

34. [714]

    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.

35. [715]

    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.

36. [716]

    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.

37. [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.

38. [718]

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

39. [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.

40. [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.

41. [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.

42. [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).

43. [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).

44. [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):

45. [725]

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

46. [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.

47. [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.

48. [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.

49. [729]

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

50. [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.

51. [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.

52. [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.

53. [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.

54. [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.

55. [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.

56. [736]

    As was put in oral submissions:

57. [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).

58. [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.

59. [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.

60. [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.

61. [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

1. [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.

2. [743]

   For these reasons, I make the following orders:

   1. (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. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

      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.

   7. (7)

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