Schwanke v Alexakis; Camilleri v Alexakis

1. [1]

   WARD P: I have had the considerable benefit of reading in advance the comprehensive reasons of Adamson JA, with whom I agree. In particular, I agree, for the reasons her Honour has given, with Adamson JA’s conclusion that the principles of undue influence differ in their application in probate from their application in equity in the context of inter vivos transactions and that the equitable principles of unconscionability do not apply in the same way to testamentary dispositions as they do to inter vivos transactions.

2. [2]

   As to the challenges made to the primary judge’s acceptance of Dr Alexakis’ evidence in critical respects (namely, as to his lack of knowledge at the relevant times that he was a beneficiary named in the deceased’s wills and that there was no quid pro quo arrangement), I agree that those challenges are not made good. I would add that the primary judge’s reasons make evident that her Honour carefully considered the evidence, including that of the respective witnesses, and gave cogent reasons for her acceptance of Dr Alexakis’ evidence. The suggestion that the reasons were not prepared with a full recollection of the relevant evidence finds no basis in the primary judgment. It is telling that this Court was not taken to any obvious errors or inconsistencies which might support such a suggestion. The criticism of the primary judge in this regard is not warranted, particularly given the myriad of issues thrown up on the claims before her Honour for determination.

3. [3]

   Finally, I cannot accept the characterisation of the doctor/patient relationship in the present case as unconventional because of the making of hospital visits and, later, home visits to the patient. One would hope that dedicated general practitioners would not be criticised for making hospital or home visits to elderly and very ill patients for whom such visits would no doubt bring comfort and reassurance, let alone minimising inconvenience to the patient of visits to the doctor’s surgery.

4. [4]

   As adverted to above, for the reasons given by Adamson JA, I agree with the orders proposed by her Honour. I also agree with the additional observations of Gleeson JA.

5. [5]

   GLEESON JA: I agree with Adamson JA. I add one comment in relation to the Schwankes’ appeal (ground 5) and the Salvation Army’s cross appeal (grounds 17 and 19). It concerns the reference by those appellants to the obiter remarks of Gaudron, Gummow and Kirby JJ in Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 at [63], which have been referred to by some commentators as “the Bridgewater hypothesis” (see: Prof J Campbell, “Estate Litigation to Challenge Tainted Dispositions”, Blue Mountains Law Society Succession Conference – 12 & 13 September 2020). The joint judgment said:

6. [6]

   As Adamson JA points out at [233] these passing remarks refer to a possible argument that was not raised in Bridgewater. They do not constitute a statement of principle by the High Court, nor “seriously considered dicta” of the High Court which intermediate appellate courts and trial judges in Australia should not depart from: Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22 at [134]-[135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). In any event, the factual premise underlying the grounds of appeal based on the “Bridgewater hypothesis” was not established in this case. Even assuming that the principles of undue influence in equity applied to testamentary gifts, including the presumption of undue influence for certain relationships, for the reasons given by Adamson JA, there was no error by the primary judge in finding that it had been rebutted: see [250]-[304], [316]-[317], [321]-[326] below.

7. [7]

   For my part, I would express a note of caution before the temptation to take the large step of adopting the “Bridgewater hypothesis” gains momentum. It is to be recalled that the premise of this suggested development in the law is that if it is not possible for the law of probate to achieve a just result, then equitable principles should be applied or extended to achieve a just result. Aside from potential uncertainty surrounding the value laden conclusion of what is a “just result”, my chief concern is a practical one, given the likely implications of such a development in the law in this area.

8. [8]

   To allow a collateral challenge after the grant of probate to gifts under a will on the ground of undue influence is likely to promote and encourage litigation in probate matters by disappointed claimants, including speculative and nuisance litigation, at significant cost to the parties and the deceased’s estate, often disproportionate to the value of the estate. In my view, courts need to be cognisant of such implications and should give careful consideration to whether any suggested development in the law in this area is really a matter more appropriately dealt with by Parliament.

9. [9]

   ADAMSON JA: The two appeals and the cross-appeal challenge orders made by Henry J (the primary judge), including an order that letters of administration of the will of Raymond McClure dated 10 July 2017 (the July will) be granted to Dr Peter Alexakis, the plaintiff in the Court below and the first respondent to the appeals and cross-appeal.

Introduction

1. [10]

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

2. [11]

   Under the July will, Mr McClure left his home at Strathfield and 90% of the residue of his estate to Dr Alexakis, his general practitioner. He left the remaining 10% of the residue to be divided between Frank Camilleri (9%) and Hildegard Schwanke (Hildegard) (1%), who were both friends of Mr McClure. There were specific devises of various chattels to Hildegard and of $10,000 to Maggie Nasr, a carer who had looked after Mr McClure in his home shortly before he died.

3. [12]

   The July will was Mr McClure’s last will. His penultimate will was made about a month before on 8 June 2017 (the June will). In addition to Dr Alexakis, Mr Camilleri and Hildegard, Irmgard Schwanke (Irmgard), Hildegard’s daughter who also goes by the name of Marianne, was also a beneficiary. The June will superseded a will made the previous year on 27 May 2016 (the 2016 will). The principal beneficiary under the 2016 will was the Salvation Army (NSW) Property Trust (the Salvation Army).

4. [13]

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

5. [14]

   The wills in evidence were as follows.

6. [15]

   It was accepted that Mr McClure had testamentary capacity to make the June will and the July will. However, Dr Alexakis’ claim for the letters of administration in respect of the July will (which was made by summons in the proceedings before the primary judge) was opposed at first instance on the basis that the gifts to Dr Alexakis under the July will and the June will were the product of undue influence (either presumed or proved), fraud or unconscionable conduct and that, accordingly, those gifts failed.

7. [16]

   Dr Alexakis is a respondent to all appeals and submits that each ought be dismissed. The appellants and the outcome which each seeks are set out below.

8. [17]

   The appeals give rise to questions of legal principle and factual analysis of the evidence before the primary judge.

9. [18]

   There were differences of approach between the appellants. In summary, Dr Birch SC, who appeared with Mr Brown for Hildegard and Irmgard, submitted that the decision of Powell J in Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116, which has long been accepted as correctly setting out the principles of undue influence in probate, amounted to a “wrong turn” in the law and that the correct position was as found in Callaghan v Myers [1880] NSWLawRp 84; (1880) 1 LR (NSW) 351. He submitted that the applicable legal principle was that a presumption of undue influence arises in probate where a testator in poor health leaves a substantial gift to their treating physician.

10. [19]

    Dr Birch also argued that the substantial gift to Mr McClure’s general practitioner in circumstances where he had played a significant role in arranging for the making of the June will and the July will and knew of the contents of those wills amounted to suspicious circumstances which required Dr Alexakis to prove that Mr McClure knew and approved the contents of the will. Dr Birch submitted that Dr Alexakis had not discharged that burden of proof. He also submitted that the involvement of Angelo Andresakis, the solicitor to whom Dr Alexakis referred Mr McClure and who prepared and witnessed the June will and the July will, could not assist in discharging the onus in circumstances where Mr Andresakis did not explore with Mr McClure why he had changed his will (from the 2016 will and later from the June will to the July will) and why he was leaving such a substantial gift to his general practitioner in the June will and an even larger gift in the July will. He relied on Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [173] in which White J found that the two latest wills of the testatrix ought not be admitted to probate on each of the grounds of lack of testamentary capacity, undue influence amounting to coercion and lack of knowledge and approval by reason of suspicious circumstances.

11. [20]

    Mr Bedrossian SC, who appeared with Mr Jaireth for Mr Camilleri, did not challenge the distinction between equitable undue influence and probate undue influence. However, he submitted that the case ought be decided on the basis of general equitable principles of unconscionability in respect of which he submitted that no sensible distinction could be drawn between inter vivos transactions and testamentary gifts. He submitted that where there is a special disability on the part of the donor (in this case the testator) and knowledge on the part of the donee (in this case Dr Alexakis) of the donor’s special disability, the presumption of unconscionability arises. In these circumstances, an evidentiary onus is cast on the donee to rebut the presumption by proving that the gift was “fair, just and reasonable”. The onus, which was described as a heavy one, could be discharged in cases where independent legal advice was given to the donor and the ramifications of the gift in the circumstances of special disability, as well as the possibility of undue influence by the donee had been fully explained to the donor and the donor had confirmed an intention to make the gift.

12. [21]

    Mr Bedrossian submitted that the onus was not discharged in the present case as the advice given by Mr Andresakis was not of a sufficient calibre to ameliorate the unconscionability inherent in a doctor taking a benefit from a patient.

13. [22]

    Dr Birch and Mr Bedrossian submitted that the consequence of their appeals being upheld was that Dr Alexakis held his gift on constructive trust for the remaining beneficiaries either in the proportions set out in either the June will or the July will or in the proportions which this Court considered to be just. They relied on s 42 of the Succession Act 2006 (NSW), in terms and by analogy. They accepted that the primary judge’s alternative analysis to this effect at [741] as follows was correct:

14. [23]

    Mr Wilson SC, who appeared with Mr Birtles for the Salvation Army, largely adopted the submissions made by Dr Birch and Mr Bedrossian as to the invalidity of the gifts to Dr Alexakis. He also emphasised what he referred to as “suspicious circumstances” and submitted that the primary judge ought to have found that there was a quid pro quo arrangement between Mr McClure and Dr Alexakis that, in return for Dr Alexakis getting Mr McClure out of hospital and helping to keep him out of hospital by making regular home visits, Mr McClure would leave him something in his will, (a quid pro quo arrangement), which was itself a suspicious circumstance. However, he submitted that the consequence of the failure of the gifts to Dr Alexakis was that the June will and the July will wholly failed, leaving the 2016 will as the last valid will of Mr McClure and that Mr McClure’s estate was held on constructive trust to be distributed in accordance with the 2016 will.

15. [24]

    The appellants submitted that if the presumption of undue influence or unconscionability arose in the present case, it had not been rebutted by Dr Alexakis and that the primary judge was in error in finding that it had been. They argued that the primary judge’s unchallenged findings that the legal advice provided to Mr McClure by Mr Andresakis was inadequate and that he was in a position of conflict as soon as he became aware that Mr McClure wanted to leave most of his estate to Dr Alexakis (because of his firm’s well-established and remunerative solicitor-client relationship with Tracy Alexakis, Dr Alexakis’ wife) led inexorably to the conclusion that the presumption had not been rebutted.

The facts

1. [25]

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

2. [26]

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

3. [27]

   Mr McClure was born in 1933. He first met Mr Camilleri in 1970. In 1971, Hildegard and her daughters, Irmgard and Inge, migrated to Australia. For the first year after their arrival, they rented a flat in Dulwich Hill owned by Mr McClure. Hildegard struck up a friendship with Mr McClure, in part as he was able to speak a little German and, at least at first, she found speaking in English quite difficult.

4. [28]

   As referred to in the table above, Mr McClure made a will on 28 July 1986, in which Mr Camilleri, Hildegard and Irmgard were beneficiaries.

5. [29]

   Dr Alexakis qualified as a medical practitioner in about 1985. He commenced general practice in 1990 and opened the Strathfield Family Medical Centre in 1991. On 27 August 2005, one of his patients, Mr Debnan, made a will, which was prepared by Mr Andresakis and which named Dr Alexakis as his sole beneficiary. Dr Alexakis was not aware of this bequest until after Mr Debnan died in October 2014. Mrs Alexakis owned significant real estate in Sydney in respect of which she obtained advice and conveyancing services from Mr Andresakis’ law firm, Andresakis & Associates, of which there were two partners, Mr Andresakis and Peter Skouteris.

6. [30]

   As referred to in the table above, Mr McClure made a further will on 6 March 2007, the beneficiaries of which included Hildegard and Mr Camilleri.

7. [31]

   In 2012, Mr McClure rang the Salvation Army and spoke to Glen Evans, its NSW Bequest Manager, who was employed in its Public Relations and Communications Department. He invited Mr Evans to come to his home in Strathfield to discuss a bequest to the Salvation Army. In the course of the conversation, Mr McClure told him that he was very concerned about security and did not trust the neighbours (he instructed Mr Evans not to talk to them when he came). He also told Mr Evans that because he did not like people coming to the door, he locked the front gate, which made it necessary for Mr Evans to ring him on arrival.

8. [32]

   When Mr Evans visited a few days after their telephone conversation, he noticed that there were two Christmas trees with lights, which Mr McClure explained made him feel as if there was someone else there, and stuffed toys, which Mr McClure said were good company. He also told Mr Evans that he lived in the United States for decades and he made his money selling condominiums in California. When he visited Australia to see his mother, who lived in a nursing home, he did not like what he saw of her living conditions and decided to return to Australia permanently. When Mr Evans asked Mr McClure about his testamentary intentions, Mr McClure said that he did not want to leave anything to his brother with whom he had lost contact when they were teenagers; his business associates were in America and around the world; and he did not really have anyone in Sydney with whom he was regularly in contact.

9. [33]

   When Mr Evans admired Mr McClure’s house, he asked him whether he had help to maintain it. Mr McClure responded that a woman came from “Penrith way” to clean and cook one day a week (a reference to Hildegard) and he had a “handyman/gardener Frank” who came one or two days a week (a reference to Mr Camilleri). Of “Frank”, Mr McClure said, “I pay him but his son bleeds him dry.”.

10. [34]

    This was the first of about six or seven visits which Mr Evans made to Mr McClure’s home between 2012 and his retirement from the Salvation Army in 2016.

11. [35]

    During another visit, Mr Evans expressed his concern about the locked gate, which would make it difficult for emergency workers to gain access to Mr McClure if he were incapacitated. Mr McClure indicated that he preferred to keep it locked.

12. [36]

    Mr McClure asked Mr Evans to refer him to a solicitor about making his will. He recommended Michael Shepherd, who was on the Salvation Army panel of solicitors. On 27 September 2012, at Mr McClure’s request, Mr Evans picked him up from his home and took him to see Mr Shepherd. During the meeting, Mr Evans waited outside. Afterwards, he had lunch with Mr McClure, during which Mr McClure explained that some of his “mates got girls into trouble after the war” and that the Salvation Army “always helped, without question.” After lunch Mr Evans took Mr McClure back to Mr Shepherd’s office to execute the will, which included bequests to Hildegard and Mr Camilleri but which left his residual estate to the Salvation Army. At the end of the afternoon meeting, Mr Shepherd invited Mr Evans into his office and told him that Mr McClure had executed his will and had made a “very valuable bequest to the Salvation Army”.

13. [37]

    From time to time, Mr McClure would give a cheque or travellers’ cheques to Mr Evans as donations to the Salvation Army. Mr Evans rang Mr McClure about once a month and usually offered to come and visit him. On Christmas Day, 2012, Mr McClure attended a lunch hosted by Mr Evans’ niece. About 20 members of Mr Evans’ family were present. On another occasion, in mid-2013, Mr Evans and his wife took baked dinner for three to Mr McClure’s house one evening so that they could dine together.

14. [38]

    Between December 2013 and July 2014, Mr Evans tried to contact Mr McClure without success. During this period, he sent two letters to Mr McClure, enquiring about his welfare to which he received no reply.

15. [39]

    On 15 January 2014, Mr McClure first consulted Dr Alexakis. At that time, he was 80 years old and suffered from diabetes.

16. [40]

    At some time between July 2014 and December 2015, Mr Evans took a break from working with the Salvation Army. He did not contact Mr McClure during this period.

17. [41]

    On 18 October 2014, Mr Debnan died. On 20 May 2015, probate of his will was granted to Dr Alexakis. The estate comprised the sum of $86,380, being the balance of a single bank account.

18. [42]

    On 19 June 2015, Mr McClure was admitted to Concord Hospital following a fall. He told Dr Natasha Spalding, a geriatrician who was treating him there, that he lived alone and had no close contacts. On 20 June 2015, he discharged himself against medical advice, without informing the hospital staff. When Dr Spalding telephoned him, he agreed to return that day. On his re-admission summary, he answered “NIL” when asked to identify a contact person or next of kin. On 22 June 2015, Mr McClure again discharged himself against medical advice and without informing staff. Later that day, he called Dr Spalding and told her that he did not want to be in hospital as he had some things to attend to at home, including completing his tax returns and reviewing his will.

19. [43]

    On 24 June 2015, Mr Camilleri drove Mr McClure to the Concord Aged Care and Rehabilitation and Outpatients Clinic (the Clinic) at Concord Hospital where Dr Spalding was a consultant. On that occasion, Mr McClure told Dr Spalding that he wanted to change his will. In her report to Dr Alexakis (whom Mr McClure had identified as his general practitioner), Dr Spalding listed the following diagnoses: likely prostate malignancy, possible bowel malignancy, acute and chronic renal failure, diabetes, anaemia (due to iron deficiency), restless legs syndrome, left shoulder injury (post-fall) and pedal oedema. After asking Mr McClure whom he regarded as a close contact, Dr Spalding obtained Mr Camilleri’s contact details. However, Mr McClure did not permit her to speak to Mr Camilleri (although he was there). Dr Spalding reported to Dr Alexakis:

20. [44]

    Following tests it was established that Mr McClure had bowel cancer, for which he agreed to have surgery. Dr Spalding proposed that the surgery be carried out in the public system but she reported to Dr Alexakis on 8 July 2015 that Mr McClure preferred to pay for it to be done in a private hospital (he did not have private health insurance). The surgery was performed at the Mater Hospital on 16 July 2015 at a cost to Mr McClure of $33,000.

21. [45]

    On 2 September 2015, after the surgery, Mr McClure returned to the Clinic. He told Dr Spalding that he felt that the surgeon at the Mater Hospital was trying to make as much money from him as possible and that he did not want to be taken advantage of financially. Dr Spalding also saw Mr McClure at the Clinic on 4 and 9 September 2015. The reason for the unusually high number of attendances was that he had gross swelling in his legs. Despite Dr Spalding’s advice that he be admitted to hospital, Mr McClure refused. Over the course of their interactions, Dr Spalding formed the impression that Mr McClure was a highly suspicious person, who was particularly concerned about people exploiting him financially. This led him to be wary of medical professionals because he believed that they recommended treatment to him for their own financial gain. Dr Spalding’s impression was that he was relieved and warmed to her when she told him that she received a salary for her work and was not paid more as a consequence of treatments she gave to him or recommended to be necessary.

22. [46]

    During his attendances at the Clinic, Mr McClure spoke to Dr Spalding about his concerns about the Salvation Army and, indeed, all other charities, and his desire to change his will. When considering to whom he ought leave his estate, he expressed the opinion that charities are “all as bad as each other” and that public institutions did not need his money because they get government funding. In 2016, when Dr Spalding asked him who was important to him, he identified a Russian woman, then deceased, with whom he had been in real estate in the United States. He had been the one to end the relationship. It was only after her death that he realised that she was the most important person in his life. He also told Dr Spalding in 2016 that he did not know who was best placed to receive his estate and that he did not want any of his assets to go to his brother, who was nine years older than he was and with whom he had not had any contact for 40 years.

23. [47]

    In November 2015, when Dr Spalding asked Mr McClure how he was spending his time, he told her that he was share trading because, although there was little point in trying to earn more money, it was the only thing that gave him “joy”. In her oral evidence, Dr Spalding described Mr McClure as a person “who had some interpersonal difficulties and, so, needed somebody who was always going to be calm and listen to what he had to say, and just patiently work through thing[s].”. She said that he only initiated conversations with her about “things that bothered him”. When asked to explain her evidence that Mr McClure was “very abrupt and … easily offended”, she said:

24. [48]

    Mr McClure also told Dr Spalding that he did not want further treatment, that he wanted to die at home and that “he wanted to live as independently and as normally as possible”.

25. [49]

    Towards the end of 2015, Mr McClure raised with Mr Evans his concerns about the Salvation Army (which was the principal beneficiary of his then current will), having regard to the findings made against it by the Royal Commission into Institutional Responses to Child Sexual Abuse. Mr McClure also told Dr Spalding of his concerns. He expressed reservations about giving money to the Salvation Army.

26. [50]

    On 21 December 2015, Mr Evans called Mr McClure to wish him happy Christmas and asked him what he was doing on Christmas Day. Mr McClure told him that he wanted to stay at home by himself. He also told him that he felt “very hurt and disgusted about the child abuse situation with the churches” and that he was not happy with the Salvation Army and other Christian churches. During this conversation, Mr McClure told Mr Evans that he had been in a private hospital and that he was not getting much help from health professionals and that he felt that he was a target for elder abuse because people knew that he was wealthy.

27. [51]

    On 17 April 2016, Mr Evans rang Mr McClure again and arranged to visit him the following day. On 18 April 2016, Mr McClure told Mr Evans that he realised that all institutions have weaknesses and failures and he was still confident about leaving his estate to the Salvation Army. Mr McClure also told Mr Evans that various companies formed part of his estate and that he needed to show someone from the Salvation Army’s finance department how he operated the companies.

28. [52]

    On 27 April 2016, Mr McClure told Mr Evans that he was waiting for Ian Foulsham, solicitor (of Bull, Son and Schmidt Solicitors), whom he had retained to prepare a new will. When Mr Evans spoke to Mr McClure again on 3 May 2016, Mr McClure was still waiting for Mr Foulsham to get back to him about the will. However, during a telephone call on 9 May 2016, Mr McClure asked Mr Evans to contact Mr Foulsham and tell him that he was not in a hurry to make a new will.

29. [53]

    As referred to above, Mr McClure made the 2016 will on 27 May 2016. This will removed Mr Camilleri as a beneficiary and provided that his household contents were to go to Hildegard and the balance of the estate to the Salvation Army. It provided, in cl 7, that Bull, Son & Schmidt would act for his estate in the application for probate and administration. The 2016 will was witnessed by Mr Foulsham and Linda Foulsham, teacher. On 6 June 2016, Mr Foulsham wrote to Mr McClure and enclosed a copy of his executed will. He raised three matters (in numbered paragraphs): first, the title deeds to the Strathfield home; second, the registered office of Mr McClure’s companies and, third, guardianship. In respect of the third matter, he wrote:

30. [54]

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

31. [55]

    Mr McClure’s condition continued to decline. He continued to attend the Clinic, where he saw Dr Spalding, and he continued to be seen by Dr Alexakis at his practice premises (Dr Alexakis did not make his first home visit to Mr McClure until 27 January 2017).

32. [56]

    At some time in 2016, Mr McClure told Dr Spalding that he was considering changing his will. He said to her:

33. [57]

    In late 2016, Mr McClure asked Dr Alexakis to recommend a solicitor as he wanted to change his will and he regarded his previous solicitor as “unprofessional”. Dr Alexakis suggested that he look for solicitors in the Burwood or Strathfield areas by reading advertisements in local newspapers or going online. He also suggested the Public Trustee. Dr Alexakis did not, at this time, refer Mr McClure to Mr Andresakis (that introduction was arranged in June 2017).

34. [58]

    On 2 September 2016, Mr McClure attended the Clinic and saw Dr Spalding. He told her that he had arranged for a new will to be drafted but that he had not executed it as he was still uncertain about whether he was making the right decision; he did not trust the solicitor who had come to his home and could not leave his assets to the Salvation Army after knowing that it had permitted child sex abuse. The draft was not in evidence; nor was the identity of the solicitor who prepared it revealed by the evidence. However, the evidence indicated that it was neither Mr Foulsham, whose retainer was terminated by Mr McClure on 12 June 2016, nor Mr Andresakis. Dr Spalding also raised the possibility of an Enduring Power of Attorney. Mr McClure told her that there was no one whom he trusted. He also told her that he had once given money to a female friend who had given the money to her daughter, which Mr McClure considered inappropriate. He also mentioned “Frank” (Mr Camilleri), of whom he said, “Frank works for me but doesn’t understand my financial affairs.” He also said that Mr Camilleri’s wife was unwell and he was trying not to ask for his assistance and was not seeing him regularly.

35. [59]

    On 8 September 2016, Mr Evans told Mr McClure that he was leaving the Salvation Army. Mr Evans formed the impression that Mr McClure was upset by the news that he was leaving.

36. [60]

    On 12 September 2016, Mr McClure presented at Accident and Emergency at Concord Hospital suffering from constipation with faecal impaction and anal fissures (secondary to bowel cancer). From 12 to 15 September 2016 Mr McClure was an in-patient in the Aged Care Ward at Concord Hospital where he was treated for constipation and associated pain. At that time, Dr Spalding was on leave.

37. [61]

    When Mr McClure failed to attend his appointment at the Clinic on 7 December 2016, Dr Spalding phoned him as she was concerned, having regard to his poor health and social isolation. He said that he needed to reschedule as he had recently undergone cataract surgery to his left eye and was due to have the right side done in January 2017.

38. [62]

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

39. [63]

    On 27 January 2017, four days after Mr McClure had been discharged from Concord Hospital, Dr Alexakis visited him at home for the first time. He visited him again on 3 February 2017. Dr Alexakis made no further home visits to Mr McClure until 6 July 2017 after his discharge from hospital in late June 2017.

40. [64]

    On 22 February 2017, Mr McClure attended the Clinic again and saw Dr Spalding, who noticed that he was weaker and frailer than when she had last seen him in September 2016. As had occurred on other occasions, he was collected by a driver arranged by the Clinic. This service was provided for patients who could not afford taxis but Mr McClure availed himself of it because, although he could afford to pay for taxis, he did not want taxi drivers to know that he was unwell or that he needed to go to hospital. He also used two post office boxes (at Moorebank and Croydon) rather than have mail delivered to his home but complained that a taxi driver had charged him $120 to collect his mail, an expense which he told Dr Spalding was “prohibitive”. He only left the house to collect his mail, attend the Clinic and visit Dr Alexakis in his practice rooms.

41. [65]

    Mr McClure also told Dr Spalding that making money was his only interest and that he was still day trading although he would occasionally make a silly mistake. He described his experience in the Aged Care Ward as “terrible” and told Dr Spalding that he hated having to share a room and a bathroom. She told him that he could be admitted to the recently renovated palliative care unit at Concord Hospital where, as a private patient, he would have his own room and an ensuite. However, he expressed a strong preference for the public system, which Dr Spalding understood to be a result of his experience with the Mater Hospital in 2015. He did not want to go into residential care and did not want anyone in his house “looking through [his] things”.

42. [66]

    In her letter to Dr Alexakis reporting on the consultation on 22 February 2017, Dr Spalding described Mr McClure as being “very lucky to be alive” as he managed to call for help during the hypoglycaemic event, which she considered to be “amazing” and “incredibly fortuitous”.

43. [67]

    When Mr McClure failed to attend his appointment at the Clinic on 3 May 2017, Dr Spalding again phoned him. He told her that he had visited Dr Alexakis the previous day. Mr McClure booked an appointment at the Clinic for 17 May 2017. Dr Spalding noted in the clinical notes that it may be necessary to change to home visits.

44. [68]

    On 8 May 2017, Mr McClure was admitted to Royal Prince Alfred Hospital (RPA) with abdominal distension and pain. On the morning of 16 May 2016, Mr McClure (according to the hospital clinical notes) told medical staff that he had “his own plans” and that he was “keen to go”. Although he was cleared for discharge that day, he discharged himself without notifying hospital staff and left without a discharge letter or medication. The discharge letter, which was sent to Dr Alexakis, noted that the discharge plan included that he visit Mr McClure at home on 19 May 2017. It also noted Mr McClure’s wish to stay at home for as long as possible.

45. [69]

    Dr Spalding was concerned about how Mr McClure was managing at home and asked Carole Pertwee (Mr McClure’s case manager at START), a community team operated by Sydney Local Health District (SLHD) for outpatients who need assistance with the activities of daily living, to visit him. Ms Pertwee visited Mr McClure on at least one occasion but he later told Dr Spalding (in a telephone conversation on 18 May 2017) that he did not trust Ms Pertwee, did not believe that she was associated with Dr Spalding or that she had sent her and did not want her to come again. He also told Dr Spalding that he did not want people coming to his house to see what he did. Also in the telephone call on 18 May 2017, Dr Spalding told Mr McClure to expect a visit from Dr Alexakis the following day (which indicates that she had already spoken to Dr Alexakis before phoning Mr McClure). At the mention of Dr Alexakis, Mr McClure told Dr Spalding of his good relationship with him.

46. [70]

    On 22 May 2017, RPA hospital notes recorded that a community nurse had tried to contact Mr McClure but the phone had rung out. A visit was proposed to check on him. The following day, the notes recorded that the community nurse had visited him at home but could not gain access as the house was “locked up” and he did not answer the phone. The Nursing Unit Manager noted that she had “spoken to the GP and that he has seen the patient yesterday and is doing well”. Dr Alexakis confirmed in oral evidence (which was accepted by the primary judge) that he had spoken with Mr McClure on 22 May 2017 but had not visited him at home.

47. [71]

    On 26 May 2017, Mr McClure presented at the Accident and Emergency Department of RPA and gave a history of “vomiting and decreased appetite since Monday” (22 May 2017). On his arrival, he had great difficulty getting out of the taxi. He was transferred to the Palliative Care Unit where he remained in hospital until his discharge on 26 June 2017. According to Dr Alexakis, Mr McClure rang him shortly after he was admitted and asked him to visit him, saying that he needed to “get out”. Dr Alexakis agreed to visit him but urged him to stay in hospital. Throughout the duration of his hospital stay, Mr McClure reiterated that he was “anxious to return home” and tried to elicit Dr Alexakis’ help to get out of the hospital.

48. [72]

    As a consequence of these requests, Dr Alexakis visited Mr McClure in hospital 5-6 times a week for this period of about a month. His visits during the week were generally after he had finished his last consultation at his practice in Strathfield. He also visited on weekends. Both Dr Alexakis and Mr McClure realised that his life expectancy was short. During one of Dr Alexakis’ visits, Mr McClure offered to pay Dr Alexakis $10,000 to help him get out of hospital. Dr Alexakis refused either to help him abscond or to accept money.

49. [73]

    While still an in-patient at RPA, Mr McClure told Dr Alexakis that he wanted to get his affairs in order and requested a capacity assessment to ensure that his wishes would not be successfully challenged. Dr Alexakis reminded him of their previous discussion about getting a solicitor to arrange a will. Dr Alexakis said that he knew someone who might be able to see him but that it was up to Mr McClure to interview the solicitor to see if he wanted to engage him. Dr Alexakis told Mr McClure of his connection to Mr Andresakis in the following terms:

50. [74]

    When Mr McClure agreed, Dr Alexakis tried unsuccessfully to contact Mr Andresakis by phone at 7.39am and 7.40am on 30 May 2017. At 7.41am that day, Dr Alexakis sent a text message to Mr Andresakis asking him to call. He also gave his email and his wife’s email and asked that she be copied in to any correspondence (he explained that he was not good with emails). The message was returned that day by Mr Skouteris, who told Dr Alexakis that Mr Andresakis was on leave until 5 June 2017.

51. [75]

    On 30 May 2017, Mr McClure saw Marnie Lennon, a social worker at RPA. She recorded in the progress notes that she had attended him for an extended interview however he was “very reluctant to discuss his private affairs as he believes they are private”. He was agitated because of conflict with a TV hire company. Ms Lennon recorded in the notes:

52. [76]

    On 31 May 2017, Mr McClure missed another appointment at the Clinic. Dr Spalding consulted the SLHD computerised records and ascertained that he was an in-patient at RPA. She phoned Dr Brian Fernandes, the Resident Medical Officer, to whom she gave details about Mr McClure, including that he had no next-of-kin but that she and Dr Alexakis both knew him well and that Dr Alexakis would be able to provide details of his recent progress. She told him that Dr Alexakis was “central to Mr McClure’s affairs”.

53. [77]

    Around this time, Mr McClure separately requested a capacity assessment from Dr Alexakis. There was a factual issue as to the purpose and genesis of the capacity assessment. Both Mr McClure and Dr Alexakis spoke to RPA staff about a capacity assessment. Dr Lyn Na Lim, one of the treating doctors at RPA, recalled that Dr Alexakis had requested that he arrange a capacity assessment because Mr McClure and his ex-business partner had shared assets and that Mr McClure wanted the assessment to protect his will from challenges, including by his ex-business partner’s children. Dr Lim noted that her conversation with Dr Alexakis was “one of the reasons for suggesting a capacity assessment”.

54. [78]

    The staff at RPA expressed interest in Dr Alexakis and the visits he was making to Mr McClure. The primary judge found, at [188]:

The June will

1. [79]

   At about this time, Dr Alexakis spoke to Mr Andresakis and asked him if he would be prepared to visit Mr McClure at RPA for the purposes of revising his will. Mr Andresakis said that he would only visit once Mr McClure’s capacity had been positively assessed because otherwise it would be a “waste of time”.

2. [80]

   On 2 June 2017, a neuropsychological assessment was carried out on Mr McClure by Nora Breen, a neuropsychologist. Her findings included:

3. [81]

   Once Dr Alexakis learned from Mr McClure that he understood that he had passed the neuropsychological assessment, he told Mr Andresakis. On 5 June 2017, on the basis of this conversation, but before he had spoken with Mr McClure, Mr Andresakis opened a file and prepared a costs agreement.

4. [82]

   The phone records indicate that on 6 June 2017 the following calls were made:

5. [83]

   Although Dr Alexakis could not recall the conversation at 7.44am, he said that the call was to make arrangements for the trip to the hospital that evening. He said that, in other circumstances, he would have just given Mr Andresakis the prospective client’s contact details but that this was not the way Mr McClure liked to do things.

6. [84]

   Mr Skouteris, whose evidence the primary judge accepted, could not recall what he discussed with Mrs Alexakis on 6 June 2017 or whether he had any ongoing matters with her at that time. He did not know that Mr McClure was making the June will. Mrs Alexakis was not called to give evidence. The primary judge rejected the submission that a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference (that Mrs Alexakis’ evidence would not have assisted her case) ought be drawn from Dr Alexakis’ failure to call her to give evidence about her conversation with Mr Skouteris because he did ongoing work for her, her family and two related companies and he was unaware of Mr Andresakis’ involvement with Mr McClure at that time.

7. [85]

   On the evening of 6 June 2017, Mr Andresakis picked up Dr Alexakis from his practice rooms in Strathfield. They drove to RPA so that Dr Alexakis could introduce Mr Andresakis to Mr McClure and Mr Andresakis could obtain instructions from Mr McClure for a new will. On the way, they discussed their respective families and Dr Alexakis told Mr Andresakis that Mr McClure wanted to revise his will and talk about his companies. Both men denied propositions put to them in cross-examination that they had discussed the contents of the proposed will or that Dr Alexakis had told Mr Andresakis that he wanted to add Dr Alexakis as a beneficiary. The primary judge accepted this evidence. On their arrival at RPA, Dr Alexakis introduced Mr Andresakis to Mr McClure before departing. The only things which Mr Andresakis took to the meeting were the costs agreement and some paper on which to make a file note.

8. [86]

   The primary judge rejected the submission made by the Salvation Army that prior to that meeting, Dr Alexakis had collected a blue folder from Mr McClure’s home which contained his previous wills and documents relating to his companies (and was produced during the course of the hearing) (the blue folder) and had given it to Mr Andresakis, who had taken it with him to RPA for his first meeting with Mr McClure. Her Honour did not accept that this was “the only explanation” for the presence of the blue folder on Mr Andresakis’ file for Mr McClure (which was produced in answer to a subpoena in the course of the hearing). The primary judge accepted Dr Alexakis’ evidence that he played no part in any of 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 received them. The primary judge found that it was more likely that Mr McClure had given the blue folder to Mr Andresakis at one of their later meetings on 5 July, 10 July or 22 August 2017.

9. [87]

   In the course of the meeting, which began at 7.15pm and concluded at 8.15pm, Mr Andresakis took three pages of notes of the instructions he received from Mr McClure. Mr McClure told Mr Andresakis that he had dealings with another solicitor the previous year but was not happy with the will he prepared. Mr Andresakis’ notes recorded the reasons for Mr McClure’s decision to remove the Salvation Army from his will (because of their treatment of children under their care) and noted that Mr McClure said that he wanted to leave his estate to people with whom he has a connection. Mr Andresakis recorded:

10. [88]

    The file note also recorded details of Mr Camilleri, Hildegard and Irmgard and the reasons why Mr McClure wanted to give them bequests, including that Irmgard was not as well off as Hildegard’s other daughter. During the meeting, Mr McClure made notes on the back of the costs agreement which Mr Andresakis had given him which listed his four beneficiaries and the percentages of the estate which he wanted to give to him. He changed the percentages in the course of the meeting. The final percentages were: 65% to Dr Alexakis, 25% to Mr Camilleri and 5% each to Hildegard and Irmgard.

11. [89]

    Mr Andresakis confirmed in his oral evidence that, in the course of taking instructions from Mr McClure, he had not questioned him about his decision to leave a share of his estate to Dr Alexakis. He explained that he did not see it as his role to challenge Mr McClure’s wishes or to question him. He recalled that Mr McClure had wanted to include words to indicate that he did not wish to leave anything to his brother or to the Salvation Army and the reasons for his decision.

12. [90]

    At 8.16pm on 6 June 2017, Mr Andresakis rang Dr Alexakis and they spoke for eight minutes. Although he did not recall the contents of the call, he surmised that he had thanked Dr Alexakis for referring a client and presumed that he would have said that he assessed Mr McClure as having testamentary capacity. He said that he did not recall telling Dr Alexakis about the contents of the will. Dr Alexakis did not remember the content of the call. His evidence was that he did not know (and therefore had not been told) about the contents of either the June will or the July will until after Mr McClure had died.

13. [91]

    The evidence established that on the following day, 7 June 2017, Mr Andresakis rang Dr Alexakis twice, at 8.37am (for 5 minutes) and at 2.25pm (for 3 minutes). The primary judge accepted Mr Andresakis’ evidence that he had no way of contacting Mr McClure while he was in hospital and found that it was likely that these calls pertained to arrangements for Mr Andresakis to meet Mr McClure the following day for the will to be executed.

14. [92]

    Catherine Guy, a secretary at Mr Andresakis’ firm, prepared a draft will for Mr McClure from the firm’s precedent base and Mr Andresakis’ file note.

15. [93]

    On 8 June 2017 Mr Andresakis and Archana Narayan, a secretary at Mr Andresakis’ firm, went to RPA to see Mr McClure and have the draft will executed. The new will, the June will, was executed on 8 June 2017 in the presence of Mr Andresakis and Ms Narayan. Mr Andresakis made a file note which recorded that they were present from 1.00pm to 1.30pm and that Mr McClure read the will with the aid of a magnifying glass. The primary judge accepted Mr Andresakis’ evidence that he did not take the blue folder to that meeting.

16. [94]

    The June will included the following clauses to explain, in accordance with Mr McClure’s instructions, his decision not to leave anything to his brother or to the Salvation Army:

17. [95]

    While Mr Andresakis was with Mr McClure for the execution of the June will, Dr Fernandes, who was consulting with another patient in the adjacent bed, overheard part of their conversation. He recalled hearing a reference to “66% to Alexakis” (which the primary judge found was probably a reference to 65% to Dr Alexakis). Dr Fernandes, who knew that Dr Alexakis was Mr McClure’s general practitioner and and that he visited him regularly, became concerned about what he had overheard. When he had finished with the other patient, he introduced himself to Mr Andresakis and Ms Narayan and asked Mr Andresakis, who introduced himself as “Angelo”, whether he was part of Mr McClure’s family. In the progress notes, Dr Fernandes referred to the meeting and noted “patient has had neuropsych assessment and has testamentary capacity”.

18. [96]

    Later on 8 June 2017, at 4.44pm, Dr Alexakis phoned Mr Andresakis. The call lasted for 42 seconds. Mr Andresakis’ recollection was that they were probably talking about Mr McClure’s complaint that he did not stay long enough at the hospital to talk to him. He denied that they had spoken about the contents of the will (this denial featured in the appellants’ submissions that the primary judge erred in accepting Dr Alexakis’ evidence (see below)). Dr Alexakis could not recall the conversation and did not know that Mr McClure had executed a will that day.

19. [97]

    On 9 June 2017, Dr Fernandes raised his concerns with Dr Shroers, who recorded them in the progress notes. They discussed the matter with Dr Lim and decided to refer the matter to Dr Melanie Wroth, geriatrician, because of her experience with the financial vulnerability of the elderly. They also directed nursing staff to record the names of all visitors to Mr McClure and the times of the visits.

20. [98]

    The General Purpose Chart recorded the following visitors for the balance of Mr McClure’s period as an in-patient at RPA until his discharge on 26 June 2017:

21. [99]

    On 12 June 2017 (the Monday of the Queen’s Birthday long weekend), Dr Spalding had a social event in Newtown and took the opportunity to visit Mr McClure at RPA as she feared that he might die there. Her husband and children waited in the car while she visited him. He told her that he hated being in hospital and wanted to get out but did not want to be discharged to a nursing home. They discussed private care at home. She offered to have him transferred to Concord Hospital but he declined, saying the ward at RPA was better. She observed that he appeared to be anxious and distressed about Dr Alexakis and said:

22. [100]

    On her way out, Dr Spalding spoke to the nurses on Mr McClure’s ward to introduce herself and say that she supported him getting private care at home. The primary judge said at [240]:

23. [101]

    On 13 June 2017, Dr Spalding rang RPA and spoke to a male doctor. She informed him that she had visited Mr McClure the previous day and discussed private care at home rather than nursing home care. When the male doctor asked her how well she knew Dr Alexakis, she said that they shared several patients and that she had had a handful of conversations with him about Mr McClure.

24. [102]

    That same day, from about 3pm to 4pm, Dr Wroth conducted a review of Mr McClure in the presence of Drs Fernandes and Lim. She introduced herself to him and told him that she was there to interview him about the circumstances in which he had made a new will and his relationship with his general practitioner. Mr McClure told Dr Wroth that he had had several discussions at home with Dr Alexakis (whom he referred to as Peter) about the Salvation Army and child sex abuse. He told Dr Wroth that he had informed Dr Alexakis that the Salvation Army was in his will and that Dr Alexakis had suggested that he change it. Mr McClure also told Dr Wroth that he decided to leave his money “where it could do some good” and that “Peter [Dr Alexakis] is a good man.” Dr Wroth asked Mr McClure whether he had considered leaving money to other charitable organisations who were not involved in child sex abuse, to which Mr McClure answered that he had not thought about that. Mr McClure also referred to his other beneficiaries.

25. [103]

    Dr Lim’s recollection was that when Dr Wroth asked Mr McClure whether Dr Alexakis was in his will, Mr McClure refused to answer and said, “it’s my choice”. The primary judge found that Dr Lim accepted that the effect of her evidence was that Mr McClure had never said in her presence that he had made Dr Alexakis a beneficiary and that her questions of Mr McClure about his will had arisen as a consequence of the concern expressed by the neuropsychologist who conducted the assessment about Dr Alexakis’ visits to RPA and the assistance he gave to Mr McClure to obtain the services of a solicitor. Dr Fernandes said that Mr McClure told her that he did not want to leave anything to the Salvation Army.

26. [104]

    The primary judge set out a key aspect of Dr Wroth’s evidence at [246] as follows:

27. [105]

    The appellants relied on this evidence at first instance and on appeal in support of their respective case theories (which were rejected by the primary judge) that Dr Alexakis:

    1. (1)

       suggested that Mr McClure make a will that excluded the Salvation Army;

    2. (2)

       was involved in formulating the contents of the June will and suggested the instructions which Mr McClure gave to Mr Andresakis for the June will;

    3. (3)

       discussed the contents of the June will with Mr McClure and knew that he was a beneficiary of his estate; and

    4. (4)

       in so doing, had exercised undue influence over Mr McClure.

28. [106]

    Following her review, Dr Wroth started to prepare a complaint about Dr Alexakis which she filed with the Health Care Complaints Commission (HCCC) on 28 June 2017 (the HCCC complaint). Dr Alexakis did not become aware of the HCCC complaint until September 2017 when the police visited him as part of their investigation.

29. [107]

    At about 4.05pm, shortly after the conclusion of Dr Wroth’s review, Mr McClure attempted to leave RPA which resulted in a “Code Black” being called (indicating that the staff considered a patient to be at risk of self-harm or harm to others). Dr Fernandes appreciated that Mr McClure was upset by the review and managed to calm him down and persuade him to return to the ward. After this incident, Mr McClure became erratic and aggravated in the presence of hospital staff and said that he wanted to go home. He told a nurse, Julia Farley, that he just wanted to die because it was the “only way out”.

30. [108]

    As referred to in the table above, Dr Alexakis visited Mr McClure at about 8.45pm that evening (13 June 2017). Mr McClure suggested that if he could not be discharged, he might at least be allowed “gate leave” to get his finances in order. This visit led to Dr Alexakis calling Dr Lim the following day. Dr Alexakis passed on Mr McClure’s request for gate leave. Dr Lim recorded:

31. [109]

    On 16 June 2017, Dr Alexakis called Dr Spalding about transferring Mr McClure to Concord Hospital but she responded by saying that Mr McClure was capable of expressing his wishes to the team at RPA. When Dr Alexakis rang twice to leave messages for her on 18 June 2017 (a Sunday), she blocked his calls. For the rest of the period until Mr McClure’s discharge on 26 June 2017, Dr Alexakis continued to make representations to medical staff with a view to obtaining Mr McClure’s discharge. At times, his requests were regarded as intrusive by those to whom they were made.

32. [110]

    Mr McClure continued to agitate for his discharge. For example, at 10.40am on 22 June 2017, he told Drs Lim, Schroers and Fernandes that he believed that he was being held against his will and that they were pretending to cure him to keep him there and the hospital wanted to destroy him. Dr Alexakis attempted to assist him by sending a text message to Dr Lim at 4.06pm that afternoon, which led to the following exchange:

33. [111]

    Mr McClure was discharged from RPA on 26 June 2017. For the month of this hospital stay, Mr McClure’s only visitors were Dr Alexakis (as set out above) and Dr Spalding (once on 12 June 2017). Neither Mr Camilleri nor Hildegard visited him, although Hildegard called him once and was told by him that he was scared that he would not be allowed to go home. Mr Camilleri’s wife was dying during that period.

34. [112]

    From 26 June 2017, personal care, domestic assistance and social support services were provided to Mr McClure at home. The carers’ log records that Ms Nasr started on 27 June 2017 and attended on him every day (including weekends) for the first two weeks and on weekdays from 10 July 2017 to 30 October 2017. Other carers attended on him for about three hours each Saturday and Sunday from 23 September 2017 until 30 October 2017. In addition, he was cared for by Dr Alexakis (who phoned him almost every day) and visited him regularly, as well as medical and nursing staff and social workers from Concord Hospital.

35. [113]

    From 26 June 2017 to 5 July 2017, there were 14 phone calls between Dr Alexakis and Mr McClure, most of which were from Dr Alexakis after 6pm. Dr Alexakis explained that he was concerned about the “therapeutic gap” between 3pm (when Ms Nasr left) and 9am (when Ms Nasr arrived the following day). This led to Dr Alexakis making regular post-discharge home visits, which the primary judge accepted commenced on 6 July 2017.

36. [114]

    On 5 July 2017 Dr Alexakis and Mr McClure had telephone contact at 11.24am for about four and a half minutes, at 1.26pm for 95 seconds (which may have been the time taken to leave a message) and at 2.34pm for almost two minutes.

37. [115]

    The Salvation Army submitted that the call from Dr Alexakis at 1.26pm must have been about the will because it was followed two minutes later by a call from Mr Andresakis’ office to Mr McClure, which the primary judge found was probably to confirm that evening’s appointment between Mr Andresakis and Mr McClure (see below). The primary judge rejected that submission and described the timing as a “coincidence”.

The July will

1. [116]

   There were factual issues about the preparation of the July will. The primary judge found that at some time between 8 June 2017 (when the June will was executed) and 5 July 2017 (when Mr Andresakis came to Mr McClure’s home to confer regarding the proposed July will), arrangements were made for Mr Andresakis to visit Mr McClure. The primary judge also found that it was likely that one of Mr Andresakis’ office staff confirmed the appointment in a call made to Mr McClure at 1.28pm on 5 July 2017.

2. [117]

   Mr Andresakis had on file a copy of a handwritten document prepared by Mr McClure (the McClure document) which set out the substance of the proposed July will. How the document came to be received by Mr Andresakis did not emerge from the evidence. Mr Andresakis initially gave evidence that he had been given the McClure document when he came to visit Mr McClure at home on the evening of 5 July 2017. However, that evidence was plainly wrong as it was inconsistent with the undisputed evidence that on 5 July 2017 at 2.21pm Ms Guy created a draft will using the June will as a precedent which incorporated some of the changes set out in the McClure document. It followed that the McClure document must have been delivered by some means to Mr Andresakis’ office prior to 2.21pm on 5 July 2017. The draft July will did not, however, include the $10,000 gift to Ms Nasr, although this appears on the top of the McClure document, which tends to suggest that it was added to the McClure document after Ms Guy created the draft will, possibly by Mr McClure in the course of his discussions with Mr Andresakis that evening at his home.

3. [118]

   The appellants contended at first instance that the primary judge ought infer that Dr Alexakis had collected the McClure document from Mr McClure’s home during one of his home visits, read it (from which they submitted an inference ought be drawn that he knew of the contents of the July will before it was drafted) and delivered it to Mr Andresakis’ office in readiness for it to be used to prepare the July will, which benefited him even more substantially than the June will did. The primary judge rejected this submission since the evidence did not exclude the McClure document having reached its destination in some other way (by courier, by having been delivered by Ms Nasr or by another carer, nurse or social worker who visited Mr McClure). Indeed, the primary judge found that the evidence tended against a finding that Dr Alexakis was involved in the delivery of the McClure document.

4. [119]

   At about 6.51pm on 5 July 2017, Mr Andresakis rang Mr McClure to ask to be let into his property. The primary judge found that he brought the draft will (which Ms Guy had prepared earlier that day) with him. Over a period of about an hour they discussed Mr McClure’s testamentary intentions and matters relating to Mr McClure’s companies. Mr Andresakis made a file note of these discussions.

5. [120]

   On 8 July 2017, Dr Spalding rang Mr McClure to see how he was and to tell him that she would be away for a few weeks. He told her that his mobility was poor and that he could no longer get into a car, which meant that he was housebound. He said that he was pleased to be at home and that he had a carer, “Maggie” (Ms Nasr), whom he really liked and with whom he was building a good relationship.

6. [121]

   On 8 July 2017, Mr Camilleri’s wife died. Mr McClure learned of her death by 11 July 2017.

7. [122]

   Dr Alexakis visited Mr McClure on Saturday 8 July and Sunday 9 July 2017. At 2.41pm on 9 July 2017, Mrs Alexakis phoned Mr Andresakis and spoke for three minutes. The primary judge noted, at [335]:

8. [123]

   The primary judge inferred from all the evidence detailed in her reasons at [336], as well as the Jones v Dunkel inference that the purpose of the call was to confirm the appointment between Mr Andresakis and Mr McClure for the following day.

9. [124]

   At 3.28pm on 10 July 2017, Ms Guy modified the draft July will and prepared a final version for execution. The primary judge found that she did so by reference to the marked-up draft will (which Mr Andresakis had taken with him when he visited Mr McClure on 5 July 2017) and the file note which Mr Andresakis had made of his discussions with Mr McClure on 5 July 2017.

10. [125]

    Later on 10 July 2017, Mr Andresakis and Ms Guy went to Mr McClure’s home with the final version of the July will. Each made a file note of their attendance. The file notes recorded that Mr McClure read the will himself (having been given the option of having it read to him) with the use of his magnifying glass. He pointed out a spelling error in Ms Nasr’s name. He signed the will and Mr Andresakis and Ms Guy witnessed his signature. Ms Guy noted that Mr McClure was “alert and aware and [that she was] satisfied that he understood the contents of his Will before signing it.”. Mr Andresakis accepted that he had not questioned Mr McClure about why he was increasing Dr Alexakis’ share of the residue of the estate from 65% to 90% or why he was leaving his house to Dr Alexakis but did not accept that he should have asked about these matters.

The period after the execution of the July will

1. [126]

   Later that evening, Dr Alexakis visited Mr McClure at home. He did not recall bumping into Mr Andresakis or hearing from Mr McClure of his visit or its purpose. In his handwritten notes of the consultation, Dr Alexakis recorded Mr McClure’s blood sugar level and that he had advised him about various medical matters. Dr Alexakis also noted that Mr McClure had refused to have palliative care visits or visits from a nurse practitioner. Dr Alexakis gave evidence that he had concerns for Mr McClure’s well-being as there was a clinical need for increased care but he refused many services offered because they involved people coming to his house or the perceived risk of hospitalisation. He also said that Mr McClure was unable to check his own blood sugar level and although that could be done by a district nurse, Mr McClure would not allow such a person to come to the house. The primary judge accepted Dr Alexakis’ evidence as it was corroborated by Dr Alexakis’ notes and consistent with Mr McClure’s preference not to have many people in his home, as well as his private and suspicious nature.

2. [127]

   Dr Alexakis did not visit Mr McClure from 11 to 16 July 2017 although he phoned him during this period (on 11, 13 and 15 July 2017). He visited Mr McClure every day from 17 July to 29 September 2017, except on 12 and 13 September 2017 and recorded these visits in his home visit notes. The primary judge referred to Dr Alexakis’ evidence of the frustration associated with managing Mr McClure at home in circumstances where he was loath to accept outside help and would only allow nurses to do his dressings when his legs had become red, swollen and infected.

3. [128]

   From the last week of July 2017, Mr Camilleri resumed visits to Mr McClure. He spent time in the garden, cleared the gutters of debris and assisted him to pay a contractor.

4. [129]

   On 22 August 2017, Mr Andresakis visited Mr McClure in relation to his companies’ affairs and provided company returns for him to complete.

Police investigation of the HCCC complaint

1. [130]

   On 12 September 2017 Detective Trevor Basily visited Mr McClure at his Strathfield home, informed him of the HCCC complaint and asked him questions. The primary judge summarised Mr McClure’s response, as recorded by Detective Basily as follows:

2. [131]

   As the primary judge noted, there were several inaccuracies in this version, including that Mr McClure may have misunderstood the effect of his previous solicitors nominating themselves as executors of the 2016 will.

3. [132]

   On Sunday, 17 September 2017, Dr Alexakis made a home visit to Mr McClure who told him that he had terminated the services of a carer. He advised him to use an agency carer for the weekend. On the following day, Dr Alexakis made arrangements for nurses to visit daily to dress Mr McClure’s leg wounds. Mr McClure told Dr Alexakis that he was upset that Ms Nasr could not dress his wounds anymore because of MRSA (Staph infection). Dr Alexakis advised him that the palliative care doctors and nurses were specialists and that he needed their care.

4. [133]

   On 21 September 2017, police detectives went to Dr Alexakis’ practice rooms and asked him about the HCCC complaint. The primary judge summarised the police notes as follows:

5. [134]

   On 22 September 2017, police detectives spoke to Mr Andresakis about the HCCC complaint. The primary judge summarised the police notes as follows:

6. [135]

   The police concluded that “[t]here is no criminality in this occurrence whatsoever” and reported to the HCCC that they had terminated their investigation accordingly.

The involvement of the Concord Hospital Palliative Care Unit

1. [136]

   Brendan Myhill, a community palliative care social worker employed by SLHD who was based at Concord Hospital, introduced himself over the phone to Mr McClure on 21 September 2017, as a result of a referral which said that Mr McClure wanted a solicitor as well as assistance with funeral planning. Before visiting Mr McClure on 28 September 2017, Mr Myhill reviewed his RPA hospital records (which informed him that Mr McClure had made a will which included his general practitioner as a beneficiary). He also spoke to Nicole Homewood, a social worker who had seen him when he was an in-patient at RPA in June 2017, who told him that RPA staff were concerned about Dr Alexakis’ conduct and considered his visits to Mr McClure to be “unusual”. The primary judge found:

The HCCC investigation of the HCCC complaint and its consequences

1. [137]

   Despite the cessation of the police investigation, the HCCC pursued its own investigation of Dr Alexakis.

2. [138]

   As a consequence, on 29 September 2017, Dr Alexakis visited Mr McClure to tell him that he needed to cease acting as his general practitioner. He told him that he had been visited by police, to which Mr McClure responded that he, too, had been visited by police and he had told them to go away. The primary judge summarised Dr Alexakis’ notes of this meeting at [386]:

3. [139]

   On that day, Dr Alexakis wrote a letter of referral to Dr Dipti Mittal at the Department of Palliative Medicine at Concord Hospital asking him to review Mr McClure. He outlined Mr McClure’s current medical condition and his medical history. The letter included the following:

4. [140]

   Dr Alexakis visited Mr McClure at home on 30 September 2017 and 1, 2, 3 and 4 October 2017. The primary judge referred to the final visit on 5 October 2017 at [389] and set out Dr Alexakis’ notes, as follows:

5. [141]

   The primary judge noted Dr Alexakis’ evidence in cross-examination that he had referred to the will in his conversation with Mr McClure because he was aware from the police questioning that a will had been made, although he did not know the date of it. Dr Alexakis made contact with other health professionals, informing them of the care which Mr McClure required and that he was withdrawing as his general practitioner.

6. [142]

   On 10 October 2017, Mr Andresakis couriered a letter to Mr McClure. The primary judge noted at [393]:

7. [143]

   Mr Myhill visited Mr McClure at home on 25 October 2017. The primary judge accepted his unchallenged evidence that:

8. [144]

   Although Dr Alexakis had withdrawn as Mr McClure’s general practitioner, he continued to make contact with him every ten days or so (on 8 October, 18 October and 27 October 2017) to find out how he was and to ascertain whether he had a new general practitioner yet. He explained in oral evidence that he did so because he considered that he owed Mr McClure a duty of care until Mr McClure had a new general practitioner. During these conversations, Mr McClure told Dr Alexakis that he felt “betrayed by him”. It was not until the last conversation on 27 October 2017 that Mr McClure informed Dr Alexakis that he had a new general practitioner, at which point Dr Alexakis told him that he would not call again.

Mr McClure’s final hospital stay

1. [145]

   On 30 October 2017, Mr McClure was admitted to Concord Hospital where he remained until his death on 21 November 2017. On 1 November 2017, Mr McClure spoke to Mr Myhill whose evidence the primary judge accepted. The primary judge extracted the progress note of this exchange at [407]:

2. [146]

   In oral evidence, Mr Myhill expanded on what he had recorded in the progress note and said that Mr McClure had told him that he had “an agreement” with his general practitioner who “didn’t hold up his end of the bargain”. He accepted that there was no mention of an agreement in his progress note but thought that it was “implied”. As the primary judge noted, the appellants relied on the account Mr Myhill gave in oral evidence of the conversation in support of the quid pro quo arrangement that he would name Dr Alexakis in his will in return for his help in getting him home and providing care for him there.

3. [147]

   On 9 November 2017, Dr Spalding visited Mr McClure in the Palliative Care Unit at Concord Hospital (she realised the previous evening that he had been admitted to the unit nine days before). He recognised her immediately. He said:

4. [148]

   Mr McClure also told Dr Spalding that he knew that he was going to die soon and that “this is the end.”.

5. [149]

   While Mr McClure was in hospital for the last time, Mr Camilleri visited him regularly, sometimes in Hildegard’s company, and spoke to him about making a new will. The primary judge did not accept Mr Camilleri’s evidence that Mr McClure had told him that Dr Alexakis put pressure on him. Her Honour said:

6. [150]

   Mr Camilleri introduced a solicitor to Mr McClure on 15 November 2017 but Mr McClure thought the solicitor was taking too much time and sent him away. Another solicitor, Dean Mitchelmore, who had witnessed the 1986 will, attended the hospital on 17 or 20 November 2017 but determined that Mr McClure did not have the capacity to make a new will.

7. [151]

   Mr McClure died on 21 November 2017. His funeral was attended by Mr Camilleri, Hildegard and their respective families.

The dispositive finding made by the primary judge

1. [152]

   The sequence of events and findings of primary fact have been set out above. What follows is a summary of the primary judge’s dispositive findings and conclusions.

2. [153]

   It was common ground Mr McClure had testamentary capacity at all relevant times to make the June will and the July will. All parties accepted that the June will and the July will were duly executed and complied with all formal requirements. Mr McClure’s testamentary capacity immediately prior to the June will was supported by Dr Breen’s neurological assessment on 2 June 2017. The evidence given by doctors at RPA, Mr Andresakis, and other contemporaneous records, did not suggest that he was drowsy or confused at relevant times in the will-making process due to his pain medication. The evidence did not suggest that he could not read, complete or comprehend written documents. Mr Andresakis had no difficulty getting instructions from Mr McClure.

3. [154]

   Although Mr McClure was old and physically ill, he 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. He had a firm desire to be at home and not in hospital. His assertiveness was apparent from his decisions to discharge himself from Concord Hospital in 2015 and 2017 and his reaction to Dr Wroth’s interview on 13 June 2017. He was determined to do what he wanted to even when it did not necessarily accord with his interests. His offer to pay $10,000 to Dr Alexakis to help him abscond spoke of a somewhat desperate and vulnerable man.

4. [155]

   There was a power imbalance between Mr McClure and Dr Alexakis which arose from Mr McClure's dependence on Dr Alexakis for his medical, personal and social care, which made Mr McClure vulnerable to Dr Alexakis' influence. His dependence on Dr Alexakis increased after his discharge from RPA because of his reluctance (if not refusal) to have anyone other than Ms Nasr and Dr Alexakis come to his home to care for him.

5. [156]

   However, the primary judge was not satisfied that Mr McClure was actually subject to undue influence or unconscionable conduct by Dr Alexakis. Her Honour found that Mr McClure could have rejected, and did reject, Dr Alexakis’ advice about treatment and often rejected the advice of other medical professionals. Mr McClure had energy, independence of thought, robustness and agency. In so far as the June will and the July will were concerned, he spoke about wanting to make a will and arranged for this to happen; he made it clear to several people that he did not want to benefit the Salvation Army; he was able, in Dr Alexakis’ absence, to answer questions and express views about his wills to Mr Andresakis, his doctors at RPA and Concord Hospital and to NSW Police; he changed solicitors at will and appreciated that he could withdraw instructions at any time; and Mr Andresakis conferred with him and took instructions from him about the June will and the July will and returned on separate occasions to have the wills executed.

6. [157]

   Further, the primary judge found that Mr McClure had a suspicious nature and tendency to mistrust, as was demonstrated by his statements to others, the records of his interactions with Ms Farley and his statements to RPA doctors on 22 June 2017. He was very loath to have other people in his home, as he emphasised to Dr Spalding and Dr Alexakis.

7. [158]

   The primary judge found, beyond the dispositions made to Dr Alexakis under the June will and the July will, that Mr McClure's history of will-making demonstrated an independent and somewhat unpredictable approach to his testamentary decisions. For example, Mr McClure excluded Mr Camilleri from the 2016 will and Irmgard from the July will and left a gift to Ms Nasr under the July will, when she had only been caring for him for about eight days.

8. [159]

   The primary judge concluded that Mr McClure knew, approved and understood the contents of the June will and the July will at the time of execution. Her Honour found that the suspicious circumstances were not in the most extreme category as Dr Alexakis was not present at the meetings when instructions were given or wills executed; and Mr McClure, not Dr Alexakis, was the source of the instructions for the preparation of the wills. Further, the primary judge found that Dr Wroth’s evidence of what Mr McClure had said to her on 13 June 2017 was not reliable and therefore did not establish that Dr Alexakis was instrumental in giving instructions for the wills. The primary judge found that Dr Alexakis did not intentionally give false evidence on the first day of the hearing (about not having discussions with Mr McClure about his estate or changing his will when he knew that Mr McClure wanted to remove the Salvation Army from his will) and that Mr McClure asked Dr Alexakis to arrange the capacity test and Dr Alexakis did not give a false reason for requesting the neuropsychology assessment. Her Honour also found that Mr Andresakis did not tell Dr Alexakis that Mr McClure had made provision for him in either the June will or the July will and, further, that it had not been established that Dr Alexakis was instrumental in conveying the McClure document to Mr Andresakis on or before 5 July 2017.

9. [160]

   The primary judge ultimately found at [531]:

10. [161]

    The primary judge said:

11. [162]

    The primary judge addressed the question whether there was a quid pro quo arrangement. Her Honour concluded that she was not satisfied that there was any such arrangement as the statements which Mr McClure is alleged to have made to Mr Myhill were insufficiently clear to establish any agreement or that Dr Alexakis had exercised undue influence. In making this finding, the primary judge took into account the context in which Mr McClure’s statements were made to Mr Myhill which included: that he was in hospital and knew that he was probably close to death; that he was angry with Dr Alexakis for ceasing to be his general practitioner; that Mr McClure had a suspicious nature, a tendency to mistrust and was quick to take offence, which led him to characterise Dr Alexakis as “his enemy”, his conduct as a “betrayal” and to describe him as "not doing his job" and state that their relationship had "not been a good one". The primary judge considered that Mr McClure's comments about "withstanding pressure" were probably references to his meeting with the doctors at RPA on 13 June 2017 and his police interview, rather than a reference to an agreement with Dr Alexakis.

12. [163]

    As to the meeting on 13 June 2017, the primary judge did not accept Dr Wroth’s evidence that Mr McClure told her that Dr Alexakis had suggested that he should change his will and remove the Salvation Army as a beneficiary and discussed with Mr McClure the terms of his June will. The primary judge found that it was corroborated neither by Dr Fernandes' contemporaneous file note, nor the affidavit evidence of Dr Fernandes and Dr Lim about what McClure said at the meeting.

13. [164]

    The primary judge preferred Dr Alexakis’ evidence that Mr McClure asked him for an introduction to a solicitor and that he did not have any discussions about the contents of the June will or the July will. The primary judge found Dr Alexakis’ evidence to be plausible, having regard to Mr McClure's character and said at [499]:

14. [165]

    The primary judge addressed the significant increase in the gift to Dr Alexakis in the July will compared with the June will. Her Honour said:

15. [166]

    The primary judge rejected the appellants’ submissions that Dr Alexakis’ care of Mr McClure and the regular telephone calls and home visits were indicative of there being a quid pro quo arrangement as alleged. Her Honour found that Dr Alexakis’ actions were explicable as involving the care and assistance a longstanding and concerned general practitioner 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, wanted to go home, and had no trusted advisers or close friends in circumstances where Mr McClure thought he could call on Dr Alexakis to provide him with the support and assistance he wanted. Although the primary judge found that the care and attention went beyond what a general practitioner would typically provide, they were also consistent with less sinister reasons than undue influence. Her Honour found that the home visits made after Mr McClure’s discharge from RPA were clinically indicated and involved the provision of medical care.

16. [167]

    The primary judge’s findings with respect to Mr Andresakis included the following:

17. [168]

    I note that these findings were not challenged in this Court. In these circumstances, it is not necessary for this Court to express a view whether the primary judge was correct to see force in the submission referred to in [612], which would appear to me to be debatable.

18. [169]

    The primary judge made the alternative finding that if the presumption of undue influence applied, it had been rebutted. Her Honour said at [712]:

19. [170]

    The primary judge rejected the submission made on behalf of the Salvation Army that the June will and the July will were “grossly improvident”. Her Honour took into account Mr McClure’s power of revocation which “he could have exercised at any time” as well as Dr Alexakis’ ignorance of the terms of those wills. Her Honour accepted that the magnitude of the gifts to Dr Alexakis “called for vigilant scrutiny of the facts” but considered the gifts to be “sufficiently explicable”, having regard 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” as well as other matters referred to in her reasons: [714].

Relevant credibility findings made by the primary judge

1. [171]

   The credibility findings of most relevance to the appeal are the following findings about Dr Alexakis’ evidence:

2. [172]

   Dr Birch did not challenge this finding in [35] but submitted that the primary judge had failed to apply it when assessing Dr Alexakis’ evidence (as addressed below).

Costs

1. [173]

   Following delivery of the principal judgment, the primary judge determined the question of costs on the papers (Alexakis v Masters (No 3) [2023] NSWSC 694) and made the following costs orders:

2. [174]

   The appellants submitted that although the primary judge had correctly summarised the applicable principles, she ought to have ordered that their costs be paid out of the estate. The primary judge referred to the general rule that costs follow the event and to “the two well-recognised exceptions” to that rule in probate cases: first, where the testator has been the cause of the litigation; or, second, where the circumstances reasonably called for an investigation of the will, the costs may be left to be borne by those who incurred them.

3. [175]

   The Salvation Army submitted that Mr McClure was, at least, partly the cause of the litigation and that his estate ought bear the costs of the unsuccessful parties. Hildegard and Irmgard (the Schwankes) submitted that the circumstances gave rise to a reasonable doubt whether Mr McClure had been unduly influenced by Dr Alexakis and that, on that basis, the costs of the unsuccessful parties ought be borne by the estate. Mr Camilleri submitted that, if a costs order were to be made that the costs of the Salvation Army and the Schwankes be paid out of the estate, he, too, ought have the benefit of such an order. Mr Camilleri otherwise submitted that the unsuccessful parties ought bear their own costs. He submitted that a different costs order ought be made regarding Dr Alexakis’ costs to ensure that Mr Camilleri did not bear a disproportionate share of those costs, as he had played only a limited part in the proceedings.

4. [176]

   The primary judge found that the circumstances in which the June will and the July will were made, including the relationship of doctor and patient between Dr Alexakis and Mr McClure, the size of the bequest, Mr McClure’s offer to pay Dr Alexakis $10,000 to help him get out of hospital and the absence of a clear reason for the July will, gave rise to a “reasonable doubt” whether Mr McClure was subject to undue influence.

5. [177]

   Nonetheless, the primary judge concluded at [49]:

6. [178]

   In these circumstances, her Honour was not persuaded that the costs of the appellants ought be paid from the estate.

The relevant legal principles

1. [179]

   The principles for proof of a will, which were set out in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]-[51] (Meagher JA, Basten and Campbell JJA agreeing), by reference to authority may be summarised as follows:

   1. (1)

      the proponent of a will bears an onus of proving that the will is the last will of a free and capable testator, which requires the proponent to prove that the testator knew or, approved of and understood its contents at the time of its execution ([44]);

   2. (2)

      if the will is rational on its face and duly executed, it is presumed that the testator was mentally competent, unless circumstances raise a doubt as to testamentary capacity, in which case the proponent must prove that the testator was of sound mind ([45]);

   3. (3)

      if testamentary capacity and due execution have been proved, there is also a presumption of knowledge and approval of the contents of the will at the time of execution, which may be displaced by circumstances (referred to as suspicious circumstances) which create a doubt as to whether the will expresses the intentions of the testator (including that a person who benefits under the will was involved in its preparation), in which case the proponent must prove that the testator knew and approved of the contents and legal effect of the document ([46]); see also Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [169] (Leeming JA, Meagher and Payne JJA agreeing);

   4. (4)

      evidence that the testator gave instructions for the will or that it was read over by or to the testator is generally sufficient to establish that the testator had actual knowledge of its contents ([47]); and

   5. (5)

      where a will has been executed by a person of competent understanding who was apparently a free agent, the burden of proving undue influence is on the person who alleges it ([49]-[51]).

2. [180]

   Of these principles, only the correctness of (5) is in issue. The application of (3) and (4) are relevant because of the challenge, on the basis of suspicious circumstances, to the proposition that Mr McClure knew and approved the contents of the June will and the July will. Mr Ellison SC, who appeared with Mr Fernandez and Mr Yazdani for Dr Alexakis, accepted that, because there were suspicious circumstances, Dr Alexakis bore the evidentiary onus of proving that Mr McClure knew and approved of the contents and legal effect of the June will and the July will.

3. [181]

   There are two main issues about the principles which apply where a will is sought to be impugned on the basis that either:

   1. (1)

      the testator has been subject to undue influence by a beneficiary such that the will does not represent the testator’s true intentions unaffected by that influence; or

   2. (2)

      the beneficiary’s conduct with respect to the testator has been unconscionable.

4. [182]

   The parties also made submissions as to the consequences of a finding that either the June will or the July will was affected by either undue influence (Salvation Army grounds 17 and 19, Schwanke ground 5) or unconscionability (in the case of Mr Bedrossian). Because of my conclusion that the gift to Dr Alexakis in the July will did not fail, it is not necessary to address the consequences of a finding that the gift failed.

5. [183]

   In respect of undue influence, the question arose whether:

   1. (1)

      as the primary judge found, the onus of proving undue influence is on those seeking to impugn the will on that basis (alleger’s onus analysis); or

   2. (2)

      as Dr Birch and Mr Wilson contended, once those seeking to impugn the will on the basis of undue influence have proved that the testator is subject to a special disability of which the beneficiary is aware, a presumption of undue influence arises which must be rebutted by the beneficiary (presumption analysis).

6. [184]

   In respect of alleged unconscionability, the question arose whether, as Mr Bedrossian contended, the equitable principles relating to unconscionable conduct as they apply to inter vivos transactions also apply to testamentary gifts with the result that, if there has been unconscionable conduct by the beneficiary, the gift to the beneficiary will only be effective if the beneficiary establishes that the gift was “true, fair and reasonable” (equitable analysis).

7. [185]

   Dr Birch submitted that the presumption analysis was the correct one, on the basis that the law had taken a wrong turn and misunderstood earlier authority which supported it. Mr Bedrossian did not seek to disturb the primary judge’s analysis or findings based on the alleger’s onus analysis. However, he submitted that Mr Camilleri had also put his case on the basis of the equitable analysis and that the primary judge had incorrectly rejected that analysis.

8. [186]

   Mr Wilson submitted that this Court ought reconsider the correctness of Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker [2007] NSWCA 136; (2007) 14 BPR 26,867 (Becker) and determine that the principles that apply to equitable undue influence apply also to probate undue influence.

9. [187]

   For the reasons which follow, I consider the primary judge’s conclusion that the alleger’s onus analysis was the proper approach to be correct as a matter of both principle and authority. I reject Dr Birch’s submission that the presumption that arises in the context of undue influence in inter vivos transactions arises in respect of testamentary gifts and Mr Wilson’s related submission that the principles of undue influence are the same in probate as in equity. I confirm my view that Becker correctly states the relevant law. I reject Mr Bedrossian’s submission that the equitable principles of unconscionability apply to testamentary dispositions in the same way as they do to inter vivos transactions.

10. [188]

    At the heart of the distinction between these analyses is the question whether it is appropriate to distinguish between inter vivos transactions or gifts on the one hand and testamentary gifts on the other. There are necessarily different considerations which apply in either case. Where there is a challenge to an inter vivos transaction or gift, the benefit of the transaction or gift can be restored to its donor. However, a testator, once dead, is forever deprived of the benefit or property which is the subject of the transaction or gift. The interest of a donor, as testator, includes respect for choices made in the exercise of testamentary freedom which (subject to legislative restrictions on that choice to make provision for close or dependent family members) the testator is entitled to exercise in a fashion which others may regard as arbitrary or perverse. While the law has a concern to ensure that the will of the testator has not been subject to undue influence, it also has other concerns: to protect testamentary freedom and to ensure that the estate of a competent testator passes to named beneficiaries under a duly executed will rather than being consumed by the costs of litigious challenges by interested persons who stand to gain by findings that gifts in a will fail.

11. [189]

    The alleger’s onus analysis is reflected in and supported by the following observations made by Lindsay J in Boyce v Bunce [2015] NSWSC 1924 (on which the primary judge relied) in which his Honour contrasted the onus of proof of undue influence in probate (testamentary gifts) as distinct from equity (inter vivos transactions):

12. [190]

    The alleger’s onus analysis was described by the High Court as “the traditional view” in the following extract from Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66. Gaudron, Gummow and Kirby JJ wrote as follows:

13. [191]

    Dr Birch submitted that this Court had endorsed the presumption analysis in Callaghan v Myers; that later decisions had misunderstood that authority; and that this Court ought revert to its previous authority. He also relied on Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 (Hallen J) which he submitted left open the question of extending equitable undue influence to probate (Schwanke ground 5).

14. [192]

    In Callaghan v Myers, Martin Hurley (the testator) made a will on 20 February 1878 (the February will) in which he left his property to his wife and Mr Myers, who had lived with him and his wife, and whom the testator regarded as a son. About a month after the testator had made the February will, his wife died. This led him to take to drinking. Mr Callaghan, an old friend of the testator who was also a publican, took in the testator and enabled his drinking. According to Mr Newman, the attorney who had prepared the February will, Mr Callaghan told him that the testator was drinking himself to death and that it would be better for him to go away with Mr Callaghan and stay at his place. Mr Newman, who did not know that Mr Callaghan was a publican, agreed. Mr Callaghan denied this conversation in his evidence but the trial judge accepted Mr Newman’s evidence and found that Mr Callaghan was not a witness of truth.

15. [193]

    Mr Callaghan accompanied the testator away from his home in Tamworth by a back route out of town and took him to his place in Armidale, where he remained for about a month. When the testator returned to Tamworth, he spoke about his properties to Mr Newman, who asked him whether he wanted to change his will. The testator responded that he was happy with his will. At the beginning of July 1878, the testator withdrew a large sum of money from the bank before leaving Tamworth and returning to Armidale to stay with Mr Callaghan and his wife, Catherine.

16. [194]

    On 14 July 1878, the testator caught a severe cold while he was watching a foot-race. By 16 July 1878, he was dying. On that day, Mrs Callaghan sent for a doctor and a priest. She also sent a messenger to fetch a solicitor but said that this was at the testator’s request and that she did not know why one had been sent for. Her evidence was inconsistent with that of the messenger who said that he told the solicitor’s clerk, “Mr Simpson is wanted at Callaghan’s to prepare a will for a dying man.” While the clerk was taking instructions for the will, Mrs Callaghan stood at the foot of the testator’s bed. This will provided that the whole of Mr Hurley’s estate was to be left to Mrs Callaghan.

17. [195]

    The trial judge, Manning J, found that the will made on 16 July 1878 was invalid on the ground of undue influence. An appeal was dismissed by the Full Court of the Supreme Court, which was constituted by Sir James Martin CJ, Hargrave J and the trial judge, Manning J.

18. [196]

    The Chief Justice considered the evidence that would be required to establish undue influence and said that “direct testimony” would not be required because the matter could be proved by circumstantial evidence. His Honour said at 353-354:

19. [197]

    Hargrave J said at 357-358:

20. [198]

    Manning J explained (on appeal) the reasons why his orders at first instance were correct. His decision was based on the evidence and did not depend on any presumption. He said at 357-358:

21. [199]

    The effect of Callaghan v Myers and subsequent cases will be addressed below.

22. [200]

    In support of the Salvation Army’s challenge to the alleger’s onus analysis, Mr Wilson placed significant reliance on the form of the Probate Rules 1862 (UK), which were introduced into New South Wales in the Wills, Probate and Administration Regulae Generales, 1898 (the 1898 Rules). Rule 67 of the 1898 Rules relevantly provided that:

23. [201]

    Mr Wilson submitted that the authorities ought be viewed by reference to this rule which provided that it was a defence to an application for a grant of probate that its execution was obtained by undue influence. He submitted that, once the rule was relevantly omitted in 1972 by schedule B to the Supreme Court Rules (Amendment No 14) of 1972, it was appropriate to review the question of onus of proof in the context of probate undue influence the requirement that the opponent to probate be required to prove undue influence was a product of procedure rather than the general law. Further, he submitted that because undue influence could be relied upon as a special circumstance, which casts an evidentiary onus on the proponent of the will to show that the testator knew, approved of and understood the contents and legal effect of the will, it was incongruent that the onus of proving undue influence ought be on the opponent to probate rather than its absence being on the proponent of the will.

24. [202]

    In support of these submissions, Mr Wilson relied on Leeming JA’s analysis in Lewis v Lewis at [135] and his Honour’s observation at [136], as follows:

25. [203]

    It is understandable that Callaghan v Myers could be regarded as supporting the presumption analysis because of the use of the word “presumption” in the reasons of Sir James Martin CJ. However, I consider that these words were not used in their technical sense, but rather as meaning a strong or compelling inference, which, unless qualified by credible evidence to the contrary, would be drawn from the circumstantial evidence (which compellingly established undue influence in that case).

26. [204]

    The judgment of Hargrave J, in which his Honour referred to “throw[ing] the onus of proof on the persons seeking to establish the will” in the context of testamentary undue influence is in a different category. Hargrave J was following his own first instance decision of Buckley v Millar (1869) 8 SCR Eq 4 at 15, in which he held that the authorities which supported the distinction between testamentary undue influence and equitable undue influence must be wrong since undue influence should not be “different in different jurisdictions of the law”. Hargrave J’s view, if my reading of the word “presumption” in the judgment of Sir James Martin CJ in Callaghan v Myers is correct, was a minority one in Callaghan v Myers. The majority (Sir James Martin CJ and Manning J) decided the appeal on the quality of the evidence in that case, which was ample to establish undue influence, rather than by reference to any presumption.

27. [205]

    This construction of the majority in Callaghan v Myers, as being limited to the inferences to be drawn from the evidence in that case, is also supported by the complete absence of reference in that case to considerable English authority which maintained a distinction between so-called probate undue influence (affecting testamentary gifts) and equitable undue influence (affecting inter vivos gifts and transactions), which included Constable v Tufnell (1833) 4 Hag Ecc 465 at 485; 162 ER 1516 at 1525; Barry v Butlin (1838) 2 Moo PCC 480 at 483-484; 12 ER 1089 at 1090-1091; Baker v Batt (1838) 2 Moo PCC 317 at 320-321; 12 ER 1026 at 1027; Durling v Loveland (1839) 2 Curt 225, at 227-228; 163 ER 393, at 394; Durnell v Corfield (1844) 1 Rob Ecc 51 at 63-64; 163 ER 961 at 965-966; Jones v Godrich (1844) 5 Moo PC 16 at 20; 13 ER 394 at 396; Greville v Tylee (1851) 7 Moo PC 320 at 329-330, 351-352; 13 ER 904 at 907-908, 916; Hindson v Weatherill (1854) 5 De GM & G 301, at 311-312; 43 ER 886, at 890-891; Boyse v Rossborough (1857) 6 HL Cas 2, at 49; (1857) 10 ER 1192 and Parfitt v Lawless (1872) LR 2 P & D 462 at 469-470. In the absence of any indication that the Full Court of the Supreme Court intended to depart from this extensive jurisprudence, I would not infer that it did so.

28. [206]

    Stephen J in Buckley v Maddocks (1891) 12 LR (NSW) Eq 277; [1891] NSW LawRp 72 at 287-288 criticised Hargrave J’s decision in Buckley v Millar. His Honour referred to English authority, including Parfitt v Lawless, saying that “the rule adopted in equity in such cases (of imposing a presumption of undue influence in cases such as those involving a relationship of doctor and patient) ‘has never been and is not the law in this or any other Court regarding wills.’” Stephen J also noted that the two cases cited by Hargrave J in Callaghan v Myers, apparently in support of imposing the onus of disproving undue influence on the person propounding the will, Dent v Bennett (1839) 4 M & C 269 and Huguenin v Baseley (1807) 14 Ves 273, concerned transactions inter vivos rather than testamentary gifts. Buckley v Millar was again disapproved and not followed in the first instance decisions of Nye v Sewell (1894) 15 LR (NSW) B & P 18 at 21; [1894] NSW LawRp 43 (Manning J), where the presumption analysis was described as “an utter misconception of the law”, and Hendy v Jenkins (1900) 21 LR (NSW) B & P 43; [1900] NSW LawRp 102 at 63 where Walker J said that Buckley v Millar could not be accepted as correct and was contrary to Parfitt v Lawless, in which Lord Penzance held that equitable rules in relation to gifts inter vivos were not applicable in the making of wills.

29. [207]

    The distinction between inter vivos transactions and testamentary gifts was maintained in Low v Guthrie [1909] AC 278 at 283 (Lord James of Hereford).

30. [208]

    In Craig v Lamoureux [1920] AC 349, Viscount Haldane on behalf of the Privy Council said at 356:

31. [209]

    At the time Craig v Lamoureux was decided, as a decision of the Privy Council, it bound the State Supreme Courts and the High Court: Morris v English, Scottish & Australian Bank Ltd (1957) 97 CLR 624 at 629-630 (Dixon CJ, McTiernan, Webb and Taylor JJ); [1957] HCA 93; Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 at [125] (Gummow J); see also Mayer v Coe [1968] 2 NSWR 747 at 751-752 (Street J). Thus, in so far as Callaghan v Myers was inconsistent with Craig v Lamoureux, the latter implicitly overruled the former.

32. [210]

    Craig v Lamoureux was applied in Estate of Marjorie Donald Phillips Deceased; Legg v Duncan (Supreme Court (NSW), Needham J, 11 March 1987, unrep). In that case, the testatrix’s will provided that Mr Williams, the son of her neighbour (who were tenants of a property she owned), who was living with her at the time of her death, was permitted to live in her house for as long as he wished as long as he paid the rates and taxes and kept the house in good repair. The evidence established that she looked on him as a son (she had no natural children of her own). The residue was given to the testatrix’s niece, Ms Duncan, who gave the testatrix care and companionship and stayed overnight when Mr Williams was away. Ms Duncan contested the executor’s (Mr Legg’s) claim for probate on the basis that the gifts to Mr Williams under the will had been procured by his undue influence.

33. [211]

    Needham J cited Craig v Lamoureux, at 18, in support of the proposition that “[i]t is not sufficient to show that the person charged with the exercise of undue influence had the power to overbear the will of the testator, it must be proved that that power was exercised.” (Emphasis added.) His Honour found that Ms Duncan (who bore the onus) had not established that the testatrix’s will was overborne by Mr Williams.

34. [212]

    Craig v Lamoureux was also applied in Woodley-Page v Simmons (1987) 217 ALR 25. The defendant, Mr Simmons, provided taxi services to the testator and delivered alcohol to him whenever he wished (it appears that the testator was an alcoholic). Mr Simmons also drove the testator to a solicitor so that he could make a will after his wife died and also provided accommodation to the testator in one of his holiday units in Huskisson. The testator left his whole estate to Mr Simmons. The probate of the will was challenged by the testator’s sister (the plaintiff in the proceedings), who was one of his next-of-kin. After citing Needham J in Estate of Marjorie Donald Phillips Deceased; Legg (who in turn cited Craig v Lamoureux), Young J said at 37:

35. [213]

    The difference as to who bears the onus of proof of undue influence between probate and equity was also maintained in New South Wales in Winter v Crichton at 121 (Powell J). In Becker at [62], Ipp JA cited Bridgewater v Leahy at 475 (set out above) as authority for the distinction. The connection between the requirement that the proponent of a will prove that the testator knew and approved of its contents and an allegation of undue influence was addressed in Tobin v Ezekiel. In that appeal, this Court was careful to emphasise that the onus on the proponent of the will to prove such knowledge and approval did not also require the proponent to disprove undue influence.

36. [214]

    The authorities establish and maintain that, for the reasons set out above, there is a different rule for probate undue influence than for equitable undue influence. If Callaghan v Myers ought be read as obliterating the distinction (contrary to my analysis above, in which only Hargrave J (incorrectly) decided that there ought be no distinction), it is, in my view, plainly wrong and was implicitly overruled by the Privy Council in Craig v Lamoureux.

37. [215]

    As noted above, Dr Birch submitted that Hallen J in Blendell v Byrne had left open the question whether equitable undue influence should be extended to probate. I do not consider that Hallen J’s reasons ought be read as going further than to note the observations made by the High Court in Bridgewater v Leahy at [62]-[63].

38. [216]

    I consider there to be an important distinction between a testator’s knowledge and approval on the one hand and undue influence on the other. As this Court said in Tobin v Ezekiel at [46], once testamentary capacity and due execution have been proved, a presumption of knowledge and approval of the contents of the will at the time of execution arises, which may be displaced by proof of suspicious circumstances, in which case the proponent must prove that the testator knew and approved of the contents and legal effect of the document. The proponent bears the onus of proving knowledge and approval but, in certain circumstances (outlined above), can rely on a presumption to that effect. However, the presumption can be displaced by the opponent’s proof of special circumstances, which then casts the onus of proof back on the proponent, who will no longer have the benefit of the presumption.

39. [217]

    This situation is to be distinguished from an allegation of undue influence where the opponent bears the onus of proof throughout and there is no operative presumption. The authorities reflect this distinction between knowledge and approval on the one hand (where the onus might be described as shifting) and undue influence (where the onus is on the opponent in probate cases), although the 1898 Rules required that each be alleged in the defence. This is a strong indication that the 1898 Rules requiring undue influence to be pleaded as a defence reflected the common law, rather than affected it. The need for the requirement that the absence of knowledge and approval be pleaded as a defence stems from the circumstance that knowledge and approval would, in certain circumstances, otherwise be presumed and an allegation in the defence is required to put the proponent on notice that the opponent contends that the presumption of knowledge of approval is displaced: see, by analogy, O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455; [2002] FCAFC 188 at [15]-[16] (Carr, Moore and Marshall JJ) in which it was held that an applicant, who relies on the presumption in s 51A(2) of the Trade Practices Act 1974 (Cth) that a corporation does not have reasonable grounds for a representation with respect to a future matter, is obliged to indicate that reliance to the respondent, as a matter of procedural fairness.

40. [218]

    For these reasons, I do not consider that the form of the 1898 Rules affected the development of the common law which has consistently imposed the onus of proof of undue influence on the opponent to probate of a will. Thus, deletion of the applicable rule in 1972 does not provide a warrant for this Court to reconsider long-standing consistent authority, particularly in circumstances where the form of the pleading rule was not identified in the authorities as a reason for requiring the opponent to probate being granted to a will bearing the onus of proving undue influence.

41. [219]

    There was no challenge to the primary judge’s articulation of the standard of proof at [598]. Accordingly, it is necessary only to summarise the principles.

42. [220]

    Because probate proceedings are civil proceedings, the standard of proof is on the balance of probabilities: s 140(1) of the Evidence Act 1995 (NSW). The nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged are all relevant to the decision whether the tribunal of fact is so satisfied: s 140(2) of the Evidence Act. Where a serious allegation is made, clear and cogent proof is required to discharge the civil onus: Briginshaw v Briginshaw (1938) 60 CLR 334; [1938] HCA 34.

43. [221]

    In a circumstantial case of probate undue influence, the burden of proof on the party making the allegation was expressed by Lord Cranworth LC in Boyse v Rossborough (1857) 6 HL Cas 2 at 51; 10 ER 1192 at 1212 (approved in Craig v Lamoureux at 357 and followed in Winter v Crichton at 122 and Becker at [76]) as follows:

44. [222]

    Although Vickery J in Nicholson v Knaggs [2009] VSC 64 suggested at [119]-[125] that this formulation imposes too high a standard of proof, I do not accept this analysis (which does not arise for consideration in the present case). The formulation from Boyse v Rossborough is apt for any circumstantial case. Cases concerning probate undue influence are almost inevitably circumstantial because the testator cannot, by definition, give evidence and the relevant fact to be determined, the testator’s state of mind at the time of making the will, can usually only be determined by inference rather than by direct evidence.

45. [223]

    In Woodley-Page v Simmons (in the passage set out above) Young J regarded the testator’s desire to benefit the man he regarded as a son as an “equally acceptable hypothesis” (which was therefore one which had not been excluded on the balance of probabilities), which was why the claim of probate undue influence failed. This reflected the approach taken endorsed in Boyse v Rossborough.

46. [224]

    The primary judge, at [598], cited Brown v Guss [2014] VSC 251 at [393], in which McMillan J said:

47. [225]

    Mr Bedrossian submitted that even if the Court was not satisfied that Dr Alexakis knew of the terms of the will until after Mr McClure’s death, once he did find out, it was unconscionable of him to retain the benefit of the gift because it had been made in the course of a doctor/patient relationship and Dr Alexakis could not prove that it was “fair, just and reasonable” for him to do so. This was the most conservative way in which the submissions were put. At its highest, Mr Bedrossian relied on there being a quid pro quo arrangement between Dr Alexakis and the deceased (as referred to above).

48. [226]

    Mr Bedrossian submitted that Mr Andresakis’ involvement in taking instructions for, drafting, and arranging the execution of, the June will and the July will were insufficient to ameliorate the unconscionability arising from the gift. Mr Bedrossian accepted that all of the authorities which he cited in support of the equitable analysis concerned inter vivos transactions. However, he submitted that there was no reason in principle to distinguish between inter vivos transactions and testamentary gifts and that there was, therefore, no reason to limit the equitable principles by reference to that distinction, which he described as “either illusory or irrelevant”.

49. [227]

    Mr Bedrossian’s submission involved the following steps:

    1. (1)

       equitable principles of unconscionability, which are to be distinguished from those relating to undue influence, operate separately and cumulatively (Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 at 461 (Mason J); [1983] HCA 14 (Amadio));

    2. (2)

       the primary judge made unchallenged findings that:

    3. (3)

       by reason of (2), an equitable presumption arose that the transaction (the testamentary gifts to Dr Alexakis) were the consequence of the special disadvantage and that unconscientious advantage was taken by Dr Alexakis;

    4. (4)

       Dr Alexakis could only rebut the presumption by proving that the transaction was “fair, just and reasonable” (Blomley v Ryan (1956) 99 CLR 362 at 386 (McTiernan J) and at 428-429 (Kitto J, who was in dissent); [1956] HCA 81); and

    5. (5)

       Dr Alexakis had not rebutted the presumption in (3) as:

50. [228]

    Mr Bedrossian submitted that the primary judge either failed to address his submission or misunderstood its import as her Honour did not appreciate that Mr Camilleri’s claim was not based solely on a finding of a quid pro quo arrangement, but rather on the submission that Dr Alexakis’ retention of the benefit of the gifts in the will was itself unconscionable. Mr Bedrossian submitted that a finding of unconscionability did not depend on proof of “immoral or dishonest motives” (Johnson v Smith [2010] NSWCA 306 at [98]-[102]); “moral obloquy or reprehensible conduct” (Aboody v Ryan [2012] NSWCA 395; (2012) 17 BPR 32,359 at [65] (Allsop P)); the improvidence of the gift (Blomley v Ryan) or “victimisation” (Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [38]).

51. [229]

    Mr Bedrossian pointed to Mason J’s explanation of the different rationales for the remedies for undue influence and unconscionability in Amadio at 461, as follows:

52. [230]

    To like effect, Deane J said at 474 that undue influence “looks to the quality of the consent or assent of the weaker party”, whereas “[u]nconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.”

53. [231]

    Mr Bedrossian accepted that he had not found a case where a claim for probate had been successfully disputed on the basis of special disability (and consequential unconscionability) rather than probate undue influence. However, he submitted that no case had decided that the equitable analysis was limited to inter vivos gifts and transactions and did not extend to testamentary gifts.

54. [232]

    Mr Bedrossian also relied on Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162 (Nitopi), in which this Court (in part) allowed an appeal from orders that a child of a deceased repay to the deceased’s estate a total of six amounts which the deceased had paid to the child during the deceased’s lifetime at times when the deceased was at a special disadvantage. This Court upheld the ground of appeal which alleged that the primary judge had not made a finding that the child actually knew of the deceased’s particular special disadvantage and that the deceased’s executor had not proved either actual or constructive knowledge, the latter not being sufficient in any event: [10]-[11]) (Bell CJ); [114]-[125] (Ward P). As Nitopi concerned inter vivos gifts, it does not advance Mr Bedrossian’s submission that the equitable analysis ought extend to testamentary gifts.

55. [233]

    The principles on which Mr Bedrossian relies in support of the equitable analysis are well established in so far as they apply to inter vivos transactions: Bridgewater v Leahy at [58] (Gaudron, Gummow and Kirby JJ). As referred to above, the High Court in Bridgewater v Leahy was careful to note, at [63], that the parties had not argued that the equitable principles (relating to undue influence and unconscionability) which applied to inter vivos transactions ought apply or be extended to testamentary gifts.

56. [234]

    I do not accept that the equitable analysis applies to testamentary gifts. While the principles of unconscionability are distinct from those relating to undue influence, both comprise grounds on which equity will grant relief from certain transactions or gifts. Equity, in certain defined instances, imposes a presumption to give the person seeking to impugn the transaction a forensic advantage by casting the onus of proof on the party seeking to maintain the transaction or gift. One can see good reason for this to be so in respect of inter vivos transactions because to cast the onus on the alleged victim of undue influence or unconscionability tends to undermine equity’s protection. However, in the case of testamentary gifts, the alleged victim of undue influence or unconscionability is, by definition, dead, rendering restoration of material benefit to the victim impossible. Those seeking to impugn testamentary gifts are either, as in the present case, other beneficiaries (under the final or previous wills) or those who would take on an intestacy. There would not appear to be any compelling basis for granting such persons a forensic advantage by casting the burden of proof on the person seeking to propound the will. Indeed to do so would almost inevitably have the unfortunate consequence of facilitating challenges, particularly where there may be an expectation (which would be reasonable if there were such a presumption) that the cost of such challenges would be borne by the estate, which would be diminished accordingly.

57. [235]

    For the reasons given above, it has been authoritatively established that there is no presumption of undue influence in respect of testamentary gifts. The reasons for the distinction would appear to apply equally to alleged unconscionability. This may serve to explain why no case has been found that applies the equitable presumption of unconscionability in a testamentary context. I am not persuaded that the equitable analysis applies, or ought extend, to testamentary gifts.

58. [236]

    It is also significant that legislative reform (to make the rule for probate undue influence the same for equitable undue influence) has been considered and rejected, for similar reasons to those given above. In New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (April 1998), the New South Wales Law Reform Commission considered the matter briefly in the context of the witness-beneficiary rule (that, subject to exceptions, a witness to a will could not take the benefit of a gift made under the will). It merely noted that in matters relevant to undue influence, the persuasive burden rests on the person wishing to challenge the will ([3.26]).

59. [237]

    The Victorian Law Reform Commission (VLRC) in Victorian Law Reform Commission, Succession Laws (October 2013) (the Victorian Succession Report) considered the effect of undue influence in a testamentary context. It identified the difference in the party bearing the onus of proof in inter vivos transactions as distinct from testamentary gifts and noted the “common suggestion for reform” ([2.69]) that the onus for testamentary gifts should be the same in both cases. It identified the “main problem” with probate undue influence at [2.60] as follows:

60. [238]

    The VLRC referred to the legislative reform in the Canadian Province of British Columbia which came into force in 2014 (after the Victorian Succession Report was tabled) and which applied the equitable doctrine of undue influence in the context of probate. It chronicled the views of those who opposed such an amendment in Victoria as follows:

61. [239]

    The VLRC recommended against legislative amendment but recommended that the situation in British Columbia be monitored to ascertain the effect of the amendment in protecting testators against undue influence ([2.81-2.83]).

62. [240]

    In Australian Law Reform Commission, Discussion Paper 83 on Elder Abuse (December 2016), the Australian Law Reform Commission (ALRC) considered the Victorian Succession Report and proposed that “the emphasis of the proposed law reforms in this Inquiry should be on the role that lawyers can play in assisting older persons in their estate planning” as well as “community education strategies” ([9.23]). This proposal is reflected in the Australian Law Reform Commission, Report 131 Elder Abuse – A National Legal Response (June 2017) at Recommendation 8-1.

63. [241]

    While my conclusion that the equitable analysis does not and ought not apply to testamentary gifts does not depend on the recommendations of law reform commissions, I consider that the reasons given by the VLRC for not recommending a change to the onus of proof of undue influence are persuasive and accord, in substance, with the rationale for the distinction which emerges from the authorities.

64. [242]

    For the reasons given above, it is not necessary to address the various ways in which Mr Bedrossian put Mr Camilleri’s case (in ground 1 broadly, and ground 2 more specifically in relation to the presumption) on the basis of unconscionability since I am not persuaded that the principles as to onus apply in the testamentary context. It is also not necessary to address Mr Bedrossian’s submissions that the primary judge erred in applying an unduly narrow test for unconscionable conduct (Camilleri grounds 4 and 5) as, again, the principles do not apply. To the extent to which Mr Bedrossian’s submissions challenge the primary judge’s findings that Mr McClure was not victimised or disadvantaged, these submissions have otherwise been addressed.

65. [243]

    The reasons I have given above as to the legal principles are sufficient to address the Salvation Army’s grounds 8 (equitable principles relating to undue influence apply in probate); and 11-13 (which rely on a shifting onus of proof of undue influence in equity) and the Schwanke’s grounds 1 (there is a presumption of undue influence in probate) and 5 (equitable undue influence principles extend to probate).

Consideration of grounds

1. [244]

   Dr Birch challenged the primary judge’s acceptance of the evidence of Dr Alexakis that:

   1. (1)

      Dr Alexakis did not, at relevant times, know that he was a beneficiary of the June will or the July will; and

   2. (2)

      there was no quid pro quo arrangement.

2. [245]

   Dr Birch accepted that, in challenging the primary judge’s factual findings and assessment of Dr Alexakis’ credibility, he needed to confront the principle that a trial judge has an advantage in seeing and hearing the witnesses and that findings which are the product of that advantage are not to be overturned unless they are glaringly improbable or contrary to incontrovertible facts: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [89]-[90], [93] (Kirby J), Fox v Percy (2003) 214 CLR 118 at [23] (Gleeson, Gummow and Kirby JJ); [2003] HCA 22, Devries v Australian National Railways Commission (1993) 177 CLR 472 at 478-479 (Brennan, Gaudron and McHugh JJ), 479-480 (Deane and Dawson JJ); [1993] HCA 78.

3. [246]

   However, Dr Birch submitted that the “substantial” delay of over 16 months between the conclusion of the hearing and the delivery of judgment was such as to diminish the primary judge’s advantage and entitle this Court to be more rigorous in considering the primary judge’s factual findings. Dr Birch accepted that the adequacy of the primary judge’s reasons was a significant indicator as to whether her findings were made with the benefit of recollection. He submitted that if this Court is not satisfied of the adequacy of the primary judge’s reasons, it ought not necessarily assume that they were prepared with a full recollection of the relevant evidence and that, accordingly, the respect accorded to the findings of the primary judge by reason of her advantage in seeing and hearing the witnesses ought be reduced in the present case.

4. [247]

   The primary judge said at [25]:

5. [248]

   The delay was undoubtedly significant and regrettable. However, it does not follow from the chronology that the primary judge did not write her reasons concerning credibility or make factual findings when the evidence was fresh in her recollection. The listing commitments of primary judges are such that some judges endeavour to make factual findings when their recollections are fresh and return to legal questions when time permits. In so far as one can make an assessment from the reasons themselves (and this is the only guide the Court has, apart from the length of the delay between the hearing and the delivery of judgment), the considerable detail and rigour of the reasons suggest that the primary judge did recall the evidence when she wrote the reasons or that her notes of the evidence, when considered with the transcript of proceedings, were sufficient to refresh that recollection. No other conclusion can be drawn.

6. [249]

   As the primary judge’s reasons were detailed, clear and comprehensive, it is not necessary in the present case to address the circumstances in which this Court might need to adjust its assessment of the weight to be given to a trial judge’s advantage in seeing and hearing the evidence where the reasons for accepting or rejecting particular evidence of witnesses are inadequate.

7. [250]

   Dr Birch relied on the following matters which he contended ought persuade this Court to find that, at around the time of the making of the June will and the July will, Dr Alexakis knew that he was, or would be made, a beneficiary and that there was the quid pro quo arrangement (a finding of which was central to the appellants’ submission that Dr Alexakis had exercised undue influence and also to Dr Birch’s submission that Dr Alexakis had not proved that Mr McClure knew and understood the contents and legal effect of the June will or the July will):

   1. (1)

      Dr Alexakis’ “lie” that Mr McClure had not discussed his 2016 will with him, which was inconsistent with Dr Alexakis’ evidence to the Medical Council that he was aware that Mr McClure wanted to remove the Salvation Army as a beneficiary under his will and that this was, at least in part, the reason why he wanted to make a new will in June 2017;

   2. (2)

      Dr Alexakis’ denial of knowledge about the 9 July 2017 telephone conversation between his wife and Mr McClure (to arrange for Mr Andresakis to visit on 10 July 2017 for the execution of the July will) when he must have been privy to it;

   3. (3)

      the implausibility of Mr McClure telling hospital staff about his wealth and his will and not telling Dr Alexakis that he was the principal beneficiary of the June will and the July will;

   4. (4)

      the inconsistent evidence about the source of the request for a neuropsychological capacity assessment; and

   5. (5)

      the unconventional relationship between Dr Alexakis and Mr McClure.

8. [251]

   Dr Birch contended that, in respect of each of these matters, the primary judge had failed to apply the approach set out at [35] of her reasons (that Dr Alexakis’ uncorroborated evidence ought be treated with caution), including when finding that Dr Alexakis did not know that he was a beneficiary under the June will or the July will “at the relevant times” or the finding that there was no quid pro quo arrangement between them.

9. [252]

   These matters will be addressed in turn.

10. [253]

    It was put to Dr Alexakis in cross-examination that he knew, because Mr McClure had told him, that Mr McClure had left his estate to the Salvation Army, to which Dr Alexakis responded:

11. [254]

    The cross-examination continued:

12. [255]

    As referred to above, the primary judge at [244]-[245] referred to Dr Wroth’s evidence of her conversation with Mr McClure on 13 June 2017. Dr Alexakis’ cross-examination about that evidence (on 6 December 2021) was as follows:

13. [256]

    The following day in the trial, 7 December 2021, it was put to Dr Alexakis that he had told the Medical Council on 24 November 2017 (at a hearing of the HCCC complaint) that Mr McClure had asked him whether he knew any solicitors because he was unhappy with his will and wanted to remove the Salvation Army. Dr Alexakis accepted that Mr McClure had asked him about solicitors in the context of speaking about the Salvation Army. Dr Alexakis did not accept that his answer (highlighted in bold above) was “deliberately false” and explained that, when dealing with Mr McClure, he was “more focussed on his physical issues [and] did not discuss his involvement with the Salvation Army [and] did not discuss his will, which parties were on it or were not.” Dr Alexakis said of Mr McClure’s reference to the Salvation Army: “[i]t was a statement from [Mr McClure] that I did not respond to.”.

14. [257]

    The apparent inconsistency between Dr Alexakis’ denial about speaking to Mr McClure about his will and his acceptance that Mr McClure requested a recommendation of a solicitor in the context of wanting to remove the Salvation Army from his will can be resolved in the following way. The denial, “I never had any discussions with Mr McClure about his wills” could be seen as a response to the suggestion put by the cross-examiner that Dr Alexakis had suggested that Mr McClure change his will (which was denied by Dr Alexakis and not contradicted by other evidence). The “categorical” denial towards the end of the earlier passage would appear to be a categorical denial of having suggested to Mr McClure that he change his will, as opposed to a denial that Mr McClure told him that he wanted to change his will to remove the Salvation Army. When read in this way, Dr Alexakis’ statement to the Medical Council that Mr McClure had mentioned the Salvation Army did not contradict his earlier evidence. Further, it is explicable that Dr Alexakis would recall Mr McClure referring to the Salvation Army in the context of his will when asked in November 2017 but could have forgotten the detail (until prompted by contemporaneous documents) when cross-examined in December 2021.

15. [258]

    The assessment of credibility must take into account that witnesses might respond to questions differently. A witness such as Dr Alexakis might take great umbrage at the accusation that he suggested that a patient change his will and be prepared to categorically deny it without sifting through all the propositions which have been put to him to accept some and deny others. This exchange highlights the importance of a cross-examiner putting propositions one by one to a witness (unless they are rolled up for the purpose of compliance with the rule in Browne v Dunn (1893) 6 R 67 (HL)) to avoid creating an ambiguity when the witness answers one proposition (in this instance, by denying suggesting to a patient that he change his will) while leaving the other unanswered (here, whether the Salvation Army was mentioned in the context of Mr McClure asking Dr Alexakis to recommend a solicitor). Further, experienced witnesses, who have seen or been warned of witnesses coming unstuck whenever they give “categorical” answers or use a definite word such as “never”, tend to hedge their answers with words such as “to the best of my recollection” or “possibly”. That Dr Alexakis responded in a much less guarded way gave the appellants material for their submissions as to why Dr Alexakis ought not be believed, but it did not make him a dishonest witness since the apparent inconsistencies could be reconciled in a way which may have impugned Dr Alexakis’ reliability but not his honesty.

16. [259]

    The primary judge’s careful consideration of this evidence at [504]-[509] indicated that her Honour considered that while Dr Alexakis remembered his conversation with Mr McClure about the Salvation Army when giving evidence to the Medical Council in November 2017, he had genuinely forgotten the conversation by December 2021, when cross-examined about it and that, accordingly, Dr Alexakis had not given knowingly false evidence about the matter.

17. [260]

    As set out above, the primary judge’s preference for Dr Alexakis’ evidence over that of Dr Wroth was also carefully considered, including by reference to the evidence of Dr Fernandes and Dr Lim and their progress notes. In those circumstances, the primary judge was entitled to accept Dr Alexakis’ denial of ever having suggested to Mr McClure that he change his will.

18. [261]

    Dr Birch submitted that Dr Alexakis’ evidence that he had “no idea” at all about the phone call on 9 July 2017 (which the primary judge inferred at [336] had been made by Dr Alexakis’ wife to Mr Andresakis to confirm an appointment between Mr Andresakis and Mr McClure for the following day) must have been not only false but also dishonest. As set out above, the primary judge inferred that, because this phone call was made on the weekend and Mrs Alexakis had no reason relating to her own properties to contact Mr Andresakis on the weekend she must have been acting as her husband’s agent for the purposes of arranging the execution of the July will. It followed that, at least at that time, Dr Alexakis must have known about the phone call and that it was for the purpose of Mr McClure executing a will.

19. [262]

    Dr Birch also submitted that it was not sufficient for the primary judge to have drawn a Jones v Dunkel inference solely in relation to the purpose of the phone call between Mrs Alexakis and Mr Andresakis on 9 July 2017 (as her Honour did), but that her Honour ought also to have drawn such an inference as to whether Mrs Alexakis knew from Mr Andresakis that Mr McClure was making another will and whether Mrs Alexakis knew what the July will provided and whether she had told Dr Alexakis about the content of her conversation with Mr Andresakis. I do not accept this submission, particularly in circumstances where Mr Andresakis denied disclosing the terms of the June will or the July will. I consider that the primary judge was correct to limit the effect of the Jones v Dunkel inference to the purpose of the telephone call from Mrs Alexakis to Mr Andresakis on 9 July 2017.

20. [263]

    On the basis of the primary judge’s inference that Dr Alexakis must have used his wife as a conduit to arrange a suitable time for Mr Andresakis to visit Mr McClure, Dr Alexakis’ evidence that had “no idea” about the phone call of 9 July 2017 was inaccurate. Dr Birch’s submission that Dr Alexakis’ denial was not merely inaccurate but also dishonest and an attempt to hide the truth, knowing that the truth would harm him (amounting to consciousness of guilt reasoning although not put in those terms), is difficult to accept in circumstances where an equally available inference was that Dr Alexakis was primarily concerned about Mr McClure’s physical health and had forgotten asking his wife to communicate Mr McClure’s availability to Mr Andresakis (if indeed that is what happened).

21. [264]

    Although the phone records had been subpoenaed and were available (including to the cross-examiners), it does not (contrary to the submissions made by Dr Birch and Mr Wilson) reflect poorly on his credibility that Dr Alexakis did not pore over them with a view to addressing potentially relevant phone calls in his evidence (his own records for July 2017 had not been produced, in any event). While the primary judge found that there was “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”, Mr McClure was not particularly logical and appeared to have preferred to use trusted persons, such as Dr Alexakis, as intermediaries. It is also possible that Mr Andresakis could not reach Mr McClure on the phone and that he contacted Dr Alexakis for assistance, which was provided through Dr Alexakis’ wife.

22. [265]

    Dr Birch submitted that it was improbable that Mr McClure would be relatively forthcoming to Dr Wroth on 13 June 2017 about the value of his estate and his friendship with Dr Alexakis if he had not also told Dr Alexakis that he was a beneficiary.

23. [266]

    When assessing this submission by reference to objective probability, it is important to have regard to “the apparent logic of events”: Fox v Percy at [31] (Gleeson CJ, Gummow and Kirby JJ). While Mr McClure was relatively tight-lipped with many people, including Dr Alexakis and Mr Camilleri, his disclosures to Dr Spalding indicated that he would reveal matters which were bothering him in particular discrete contexts and to particular people in a somewhat unpredictable manner if he felt betrayed. When looking at Mr McClure’s interactions between 2015 and 2017, it is not implausible that he would disclose his wealth in an apparently random way to hospital staff but decline to reveal to Dr Alexakis that he had been named as a beneficiary. He was, as the primary judge noted, a private man. He did not like being in a public ward (although he did not want to pay for a private one and had no health insurance) and was loath to have others come to his house. He was self-important and insisted on personal introductions, refusing to have anything to do with Ms Pertwee when she visited, on the basis that he did not believe that Dr Spalding had, in fact, sent her, and insisting that Dr Alexakis come with Mr Andresakis to RPA to introduce him to Mr McClure. He was relatively secretive with Dr Fernandes, when the latter overheard a conversation on 8 June 2017 (when the June will was executed). This was understandable as Mr McClure’s conversation with Mr Andresakis was confidential and entitled to be protected by client-legal privilege. This is not to suggest that Dr Fernandes was other than well-motivated to protect Mr McClure but it may explain why Mr Andresakis was not forthcoming when interrogated by Dr Fernandes at the bedside and gave only his first name and not his occupation.

24. [267]

    Mr McClure was obviously troubled by what he regarded as intrusive eavesdropping, as was apparent to Dr Spalding when she visited him at RPA on 12 June 2017. On that occasion, he told her that he could not say anything because everyone was listening and he was worried that he had got Dr Alexakis into trouble. The conversation with Dr Wroth, which occurred on 13 June 2017, led to the Code Black incident when Mr McClure tried to leave the hospital notwithstanding that he was in no fit state to do so. When Mr McClure answered Dr Wroth’s questions (in the presence of Drs Lim and Fernandes), it must have been clear to him that she had been told what Dr Fernandes had overheard from 8 June 2017. Later, on 22 June 2017, Mr McClure used hyperbole and literary allusion to express his frustration when he likened his plight to that of the Count of Monte Cristo.

25. [268]

    The conversation with Mr Myhill on 1 November 2017 (about three weeks before Mr McClure died) is in a different category to that with Dr Wroth as, by that time, Mr McClure’s health had deteriorated substantially since he made the June will and the July will. He was in the Palliative Care Unit of Concord Hospital where he knew he would be until he died. Mr McClure’s desire to make another will removing Dr Alexakis as a beneficiary appears to have been motivated by his annoyance with Dr Alexakis for ceasing to be his general practitioner (as a consequence of the HCCC complaint). Such was his resentment against Dr Alexakis for withdrawing as his general practitioner that Mr McClure told him to “stick to medicine” when, at their last meeting on 5 October 2017, Mr McClure rebuffed Dr Alexakis’ suggestion that he make a further will with the assistance of an independent solicitor to ensure that it could not be set aside.

26. [269]

    Further, Mr Myhill’s perspective on the conversation, which must have affected the questions he asked, his impression of Mr McClure and how he worded his note of the conversation, was that Dr Wroth and other practitioners had raised concerns over four months previously that Mr McClure had been the victim of undue influence from Dr Alexakis. The primary judge’s careful analysis of the whole of the evidence led her Honour to reject Mr Myhill’s oral evidence that Mr McClure had disclosed to him a quid pro quo arrangement, including because this was not supported by his contemporaneous note.

27. [270]

    For the reasons given above, I am not persuaded that the primary judge was in error in not being satisfied that Dr Alexakis knew the terms of the June will or the July will.

28. [271]

    Dr Birch submitted that the evidence indicated that Dr Alexakis was the source of a request for a capacity assessment and that this fortified the inference that he had suggested that Mr McClure change his will (in his favour) and wanted the will to be valid. As the primary judge’s findings indicate, there were parallel requests for capacity assessments in late May and early June 2017 from Dr Alexakis and Dr Lim, at the time when Mr McClure wanted to change his will to remove the Salvation Army. Indeed, Mr Andresakis refused to visit Mr McClure until he had satisfactorily passed such an assessment so as not to waste time. That Dr Alexakis also spoke to hospital staff about a capacity assessment is consistent with his wanting to facilitate Mr McClure’s change of will (not knowing how he would change it other than to remove the Salvation Army) and to enable Mr Andresakis, whom Dr Alexakis had already approached, to act on Mr McClure’s behalf.

29. [272]

    It is significant that no suggestion was made that Mr Andresakis was in any way aware of, or involved in, the alleged quid pro quo arrangement between Mr McClure and Dr Alexakis. Thus, no inference can be drawn that Mr Andresakis required a capacity assessment to be done as a condition of his visiting Mr McClure in RPA, in order to fortify from challenge a will in Dr Alexakis’ favour.

30. [273]

    Dr Birch submitted generally that Dr Alexakis’ relationship with Mr McClure was closer and less professional than a typical doctor-patient relationship and that this supported a finding of undue influence. He further submitted in ground 2 that even if the primary judge’s findings of fact were accepted, undue influence was made out because of the power imbalance between Mr McClure and Dr Alexakis and Mr McClure’s vulnerability and thus probate undue influence was made out.

31. [274]

    As with many aspects of the evidence, the lengths to which Dr Alexakis was prepared to go for Mr McClure were consistent with the hypothesis of the quid pro quo arrangement as well as the hypothesis that he was a general practitioner who went above and beyond the call of duty to assist a dying patient. For example, Dr Alexakis advocated for Mr McClure when he was an in-patient at RPA, not only arranged for Mr Andresakis to see Mr McClure but also introduced them to each other himself, made house calls to Mr McClure after hours (after lengthy days at his practice rooms) and on weekends and suffered Mr McClure’s insults when he, for the sake of probity and his right to practise, ceased being his general practitioner following the HCCC complaint. He also performed personal tasks for Mr McClure such as helping with meals and travelling to the post office. These acts are consistent both with the behaviour of a dedicated professional and that of a person who is expecting a reward in return for such acts of service beyond a charitable feeling and the fees for home visits at the bulk-billed rate.

32. [275]

    I do not regard the allegedly unconventional relationship between Mr McClure and Dr Alexakis as tending to establish undue influence, although a cynical (or financially interested) observer might view it in that way. It is telling that Dr Spalding, too, went beyond what was required by visiting Mr McClure at RPA on the June long weekend in 2017, leaving her husband and children in the car, so that she could check that he was all right. Her motive appears to have been concern for a person whom she knew to be socially isolated and dying.

33. [276]

    Dr Birch also referred to [414] where the primary judge noted that Mr McClure could see “it was a mistake” to use Dr Alexakis to find a solicitor. Dr Birch argued that this aspect of the evidence was not properly addressed (Schwanke ground 3). I reject this submission. It is plain from the primary judge’s reasons that Mr McClure’s view that it had been a “mistake” was no more than an exercise in hindsight reasoning having regard to the HCCC complaint which had effectively deprived him of Dr Alexakis’ services as a general practitioner.

34. [277]

    Dr Birch submitted that the primary judge, having said that she would treat Dr Alexakis’ uncorroborated evidence with caution, erred in accepting Dr Alexakis’ uncorroborated evidence that he had not discussed the contents of Mr McClure’s will or come to the alleged quid pro quo arrangement with him.

35. [278]

    Each of the matters raised by the appellants above demonstrates the extent to which the primary judge was required to review, and did review, the evidence as a whole. Thus, her Honour did not just compare one version (which may have been a medical professional’s interpretation of what Mr McClure had said) with another (based on Dr Alexakis’ evidence) but rather considered all of the evidence to work out whether the appellants had discharged the onus of proving undue influence and its fundamental integers: first, that Dr Alexakis knew the terms of the June will and the July will and, second, that there was a quid pro quo arrangement between them. The primary judge was not satisfied of either of these two matters (as referred to above in the summary of the evidence and her Honour’s findings). It is also significant that the primary judge considered the home visits which Dr Alexakis made to Mr McClure from 6 July 2017 to be clinically warranted (and thus consistent with a diligent general practitioner who takes additional steps to care for a dying patient for whom he would appear to feel some sympathy, as well as concern, as evident from his intercessions with hospital staff on Mr McClure’s behalf and his unsuccessful attempt to enlist Dr Spalding’s help to arrange for Mr McClure to be transferred from RPA to Concord Hospital).

36. [279]

    As referred to above, Dr Birch also relied on these submissions in support of his contention that Dr Alexakis had not proved that Mr McClure knew and approved of the contents of the June will or the July will (Schwanke ground 4).

37. [280]

    As the Schwankes failed to make out any of their challenges to the primary judge’s individual factual findings, they have not established any failure on the part of her Honour to have regard to the cumulative effect of the facts she found. Further, it is apparent from the primary judge’s reasons that her Honour took into account all of the evidence in finding for Dr Alexakis.

38. [281]

    For the reasons given above, I am not persuaded that any error has been shown in the primary judge’s finding that undue influence had not been established. It is not necessary to separately address Mr Bedrossian’s submissions on factual matters since his submissions were substantially based on the primary judge’s alleged error in failing to find a quid pro quo arrangement between Mr McClure and Dr Alexakis, which has been addressed above.

39. [282]

    I do not accept Mr Bedrossian’s submission that Mr McClure himself had a unilateral understanding that, if he made Dr Alexakis a beneficiary under the June will and the July will, he would get preferential treatment from Dr Alexakis and that this made it unconscionable for Dr Alexakis to retain the benefit of the gift in his favour. It is difficult to see how this submission can be reconciled with the primary judge’s finding (which has not been successfully challenged) that Dr Alexakis was not, at the relevant times, aware that he was a beneficiary under any of Mr McClure’s wills.

40. [283]

    Mr Wilson made several factual submissions about the primary judge’s findings in relation to Dr Alexakis’ credibility to similar effect to those made by Dr Birch which have been addressed above. It is, accordingly, not necessary to address them separately.

41. [284]

    In addition, Mr Wilson submitted that her Honour ought to have found that he gave deliberately false evidence by reason of each of the matters addressed below.

42. [285]

    In addition to the material which formed the basis of Dr Birch’s submission that Dr Alexakis had lied when he said that he and Mr McClure had never discussed the June will or the July will, Mr Wilson also relied on the following evidence given by Dr Alexakis:

43. [286]

    Mr Wilson submitted that this evidence was inconsistent with Mr Myhill’s evidence of what Mr McClure told him on 1 November 2017 (that he had discussed his will with Dr Alexakis and persuaded him to help him get out of hospital in return for a testamentary gift) as recorded in Mr Myhill’s progress note (extracted above from [407]). Mr Wilson accepted that the substance of Mr Myhill’s progress note had not been put to Dr Alexakis in terms but it is plain that if the substance of the note had been put to Dr Alexakis, he would have denied it. The primary judge addressed the evidence of Mr Myhill and preferred the evidence of Dr Alexakis, not because Mr Myhill was not honest or reliable but because Mr Myhill’s source was Mr McClure who by that stage bore significant animus towards Dr Alexakis and Mr Myhill’s note did not purport to be a transcript of what Mr McClure said and may have reflected conclusions which Mr Myhill arrived at as a consequence of reviewing the RPA notes.

44. [287]

    Mr Wilson submitted that the evidence established that Dr Alexakis first spoke to Mr Andresakis about a potential retainer to draft Mr McClure’s will on 2 June 2017. Dr Alexakis said that Mr Andresakis had stipulated that a capacity assessment needed to be done. In his affidavit, Dr Alexakis said that “accordingly”, that is, as a result of Mr Andresakis’ statement, the capacity assessment was done. In fact, as the chronology revealed, the capacity assessment was carried out on 31 May 2017 and therefore had already been done by the time Dr Alexakis spoke with Mr Andresakis. Thus, the reference to “accordingly”, in so far as it implied that Mr Andresakis’ request preceded the assessment, was wrong. Mr Wilson relied on Dr Alexakis’ “false” evidence in this respect in challenging Dr Alexakis’ credibility.

45. [288]

    This submission did not advance the appeal. Honest witnesses, who go about their lives unassisted by the type of detailed chronology of contemporaneous documents which are created for the purposes of litigation, may make minor errors as to the sequence of events. These errors do not generally impugn their credibility.

46. [289]

    Mr Wilson also submitted that Dr Alexakis, having told the Medical Council that Mr McClure needed a capacity assessment because he wanted to make changes to his will, gave a false reason in his evidence for the capacity assessment: namely, that Mr McClure was concerned about his estate being challenged by the living relatives of a former business partner. I do not accept that these statements are inconsistent. In effect, Dr Alexakis understood that Mr McClure wanted a capacity assessment to be done because he intended to make a new will, which he wanted to protect, in so far as possible, from challenges by his former partner’s living relatives. I am not persuaded that the slight difference in nuance between what Dr Alexakis told the Medical Council and his evidence reflected adversely on his credibility.

47. [290]

    Dr Alexakis gave evidence in his affidavit sworn 25 June 2020 that he was “unaware, until after his death, that Mr McClure had signed a Will dated 8 June 2017 or a Will dated 10 July 2017”. Mr Wilson submitted that this evidence must have been knowingly false, given Dr Alexakis’ involvement in introducing Mr Andresakis to Mr McClure in RPA on 5 June 2017 and arranging (through his wife) for Mr Andresakis to visit Mr McClure at home on 10 July 2017.

48. [291]

    The difficulty with Mr Wilson’s submission is that it tends to elide the distinction between, on the one hand, Dr Alexakis’ knowledge that Mr McClure wanted to make a will in June 2017 and to make another will in July 2017 (based on Dr Alexakis’ involvement which included introducing Mr Andresakis to Mr McClure in RPA in June 2017 and helping to arrange a suitable time for Mr Andresakis to visit Mr McClure at home in July 2017); and, on the other, whether Dr Alexakis knew that Mr McClure had in fact executed the June will on 8 June 2017 or the July will on 10 July 2017. Given the primary judge’s acceptance that Mr Andresakis did not tell Dr Alexakis about the June will or the July will, Dr Alexakis’ affidavit evidence (that he was relevantly unaware) must be true.

49. [292]

    Further, Mr Wilson submitted that the level of contact between Dr Alexakis and the deceased, as disclosed by the telephone log, was such that the compelling inference is that they had spoken about the June will and the July will and that inferences ought be drawn against Dr Alexakis for not addressing, in his affidavit evidence in chief, the telephone log.

50. [293]

    Mr Wilson did not challenge the answers Mr Andresakis gave in cross-examination about not telling Dr Alexakis either that the June will or the July will had actually been executed, what the terms of the will were or that he had been named as a beneficiary. Mr Wilson accepted that it was never suggested that Mr Andresakis was implicated in the wrongdoing alleged against Dr Alexakis and had nothing to gain from drafting Mr McClure’s will except his usual fee for providing that service ($1,155 for both the June will and the July will). Thus, his submission that Dr Alexakis knew of these matters depended on inferences to be drawn from the telephone log since Dr Alexakis’ evidence was to the same effect as Mr Andresakis’ evidence on this topic. What inferences ought to have been drawn are addressed below.

51. [294]

    The chronology of events on 5 July 2017 has been set out above. The primary judge regarded it as a coincidence that on 5 July 2017 Dr Alexakis and Mr McClure had telephone contact at 1.26pm for 95 seconds (which may have been the time taken to leave a message) and that, two minutes later, Mr McClure received a call from Mr Andresakis’ office to confirm the appointment that evening between Mr Andresakis and Mr McClure. Because there were other reasons for Dr Alexakis and Mr McClure to be in telephone contact other than to talk about Mr Andresakis’ visit that evening, it would be speculation to conclude other than that it was a coincidence that the two calls took place in such a short interval. Fact-finding must be rational and not the product of suspicion or bias. It is only when the phone calls are viewed through the lens of the Salvation Army’s case theory that they appear related.

52. [295]

    In oral submissions in this Court, Mr Wilson relied on a chronology which he provided to the Court as an aide-memoire. The chronology indicated that Mr McClure called Dr Alexakis four times between 8.40pm and 9.02pm on 5 July 2017. Mr Wilson submitted that the intensity and timing of these calls supported a strong inference that Mr McClure had told Dr Alexakis of the July will, instructions for which had been given by Mr McClure to Mr Andresakis that day. This entry in the chronology and the oral submissions were based on an erroneous reading of the telephone log, which the Salvation Army had compiled (from telephone records produced on subpoena) for the purposes of the proceedings (this error was not made by the primary judge who read the telephone log correctly).

53. [296]

    The portion of the telephone log relied upon to support this submission was:

54. [297]

    In the telephone log, “UTC” was a reference to Coordinated Universal Time, which in July 2017 was ten hours behind Eastern Standard Time (EST). The EST figures were indicated on the telephone log in parentheses under the UTC time reference. Because of the time difference, each of the calls in this extract from the log was made on the morning of 6 July 2017. Thus, what the log indicated was that in the period leading up to the arrival of Ms Nasr at 9am on 6 July 2017, Mr McClure tried to call Dr Alexakis four times and ultimately got through and spoke to him once for less than two minutes. The evidence revealed that Dr Alexakis made his first post-discharge home visit to Mr McClure on 6 July 2017, the day on which these calls were made. The submission that the inference ought be drawn that Mr McClure rang Dr Alexakis to tell him about the July will is even weaker when one has regard to the actual time of the calls and the fact that, when Mr McClure first rang Dr Alexakis on the morning of 6 July 2017 at 8.48am, he had been alone at home for almost 18 hours (as Ms Nasr left at 3pm the previous afternoon), apart from the visit from Mr Andresakis on 5 July 2017 for the purpose of giving instructions for the July will.

55. [298]

    The telephone log (which was reflected in some of the findings of the primary judge above) disclosed that Dr Alexakis regularly rang Mr McClure in the period after he was discharged from RPA. Dr Alexakis said that the purpose of these calls was that he was concerned about the therapeutic gap between 3pm when Mr McClure’s carer (usually Ms Nasr) left in the afternoon and 9am when the carer resumed duties. These carers were qualified neither to dress Mr McClure’s leg wounds (arising from diabetes) nor to check his blood sugar levels. His low blood sugar levels led to the hypoglycaemic attack which resulted in Mr McClure’s admission to the Aged Care Ward on 19 January 2017 and Dr Spalding’s view that Mr McClure was “lucky to be alive”. These regular calls between Dr Alexakis and Mr McClure are consistent with the hypothesis that Dr Alexakis was a diligent general practitioner who was concerned about his patient, who had rejected help from others who might have been able to fill the therapeutic gap, such as district nurses who could have checked his blood sugar levels and dressed his leg wounds.

56. [299]

    It was plain from Mr Wilson’s submissions that this evidence was also consistent with Mr Wilson’s case theory, which was that Dr Alexakis effectively groomed Mr McClure to be beholden to him and took advantage of his vulnerability for his own material ends. The evidence in the telephone log did not, however, support that case theory because it was also consistent with Dr Alexakis’ diligence as a general practitioner.

57. [300]

    Dr Alexakis gave evidence that he did not suggest to Mr McClure that he remove the Salvation Army from his will. Ultimately, Dr Alexakis’ evidence was that Mr McClure wanted recommendations for a solicitor because he wanted to make a new will removing the Salvation Army because of his concerns about child sexual abuse. Dr Wroth’s affidavit evidence (summarised above) included the following statement which she attributed to Mr McClure in the conversation of 13 June 2017:

58. [301]

    In preferring the evidence of Dr Alexakis on this matter to the hearsay evidence of Dr Wroth, the trial judge took into account the statements which Mr McClure had already made to others, including Mr Evans, about wanting to change his will to remove the Salvation Army. Mr Wilson submitted that notwithstanding Mr McClure’s reservations about the Salvation Army, which pre-dated the 2016 will, Mr McClure was still prepared to have the Salvation Army as his principal beneficiary in the 2016 will. He submitted that this indicated that more was required to get Mr McClure to change his will and posited that it must have been Dr Alexakis’ suggestion that he remove the Salvation Army from his will which inclined him to make the June will. I regard this as a non sequitur. No error has been shown in the primary judge’s finding that Dr Alexakis had not suggested that Mr McClure change his will to remove the Salvation Army. Further, it would appear from the chronology that Mr Evans’ departure from the Salvation Army (after the 2016 will) provided additional impetus for Mr McClure to disinherit that institution.

59. [302]

    Mr Wilson submitted that the “strong inference” to be drawn was that Dr Alexakis delivered the McClure document to Mr Andresakis. He relied on Dr Alexakis’ evidence that he did not recall (and, implicitly, did not deny) delivering a document from Mr McClure to Mr Andresakis as well as the absence of evidence from Ms Nasr who was also a potential conduit for the McClure document (although he accepted that Ms Nasr was not in anyone’s “camp” for Jones v Dunkel purposes and that therefore no Jones v Dunkel inference could be drawn either way). He referred to the primary judge’s finding at [454] that Dr Alexakis assisted Mr McClure with personal tasks such as meals and travelling to the post office, which was consistent with his having delivered the McClure document to Mr Andresakis.

60. [303]

    Mr Wilson objected to the suggestion that Ms Nasr might have delivered the McClure document on the basis that it was “entirely speculative”. However, the same could be said of the suggestion that Dr Alexakis delivered the McClure document, since he could not recall doing so. Had Ms Nasr been called and given evidence that she did not deliver the McClure document, the inference that Dr Alexakis delivered it would have been stronger, since it eliminated one alternative possibility. However, she was not called. Essentially, Mr Wilson’s complaint was that the primary judge did not choose from two possible rival conjectures (that Dr Alexakis might have delivered the McClure document or Ms Nasr might have delivered it) the one that better suited his case (that Dr Alexakis did deliver it): see the discussion in Jones v Dunkel at 304-305 (Dixon CJ). The evidence was not such as to permit the primary judge to find affirmatively that Dr Alexakis delivered the McClure document to Mr Andresakis. Accordingly, this means of attributing knowledge of the July will to Mr McClure failed.

61. [304]

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

62. [305]

    Mr Wilson submitted that, having regard to the suspicious circumstances associated with the creation of the June will and the July will, the primary judge erred in finding that Dr Alexakis had established that Mr McClure knew, approved and understood the contents of the June will and the July will. He submitted that the primary judge was in error in finding at [495] (summarised above) that the suspicious circumstances did not fall into the “most extreme category”.

63. [306]

    Comparisons with “most extreme” case are generally apt in the context of personal injury litigation where there is a statutory limit on damages for non-economic loss (the limit being reserved for those cases which fall within the most extreme case: see, for example, s 16 of the Civil Liability Act 2002 (NSW)) or sentencing where the maximum penalty is reserved for those offences falling within the most serious examples of the offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ). In the present context, it is difficult to see the utility of such comparison, except as a rhetorical device. The basis of the submission that it fell into an extreme category was that it was a significant gift to a doctor (Dr Alexakis) who had played a part in introducing the solicitor (Mr Andresakis) to the testator (Mr McClure) and, on the basis of facts contended for by Mr Wilson but not found by the primary judge, conveying instructions from Mr McClure to Mr Andresakis.

64. [307]

    Mr Wilson submitted that, because the case fell into an extreme category, a “very heavy” onus was cast on Dr Alexakis to establish that Mr McClure knew and understood the terms and legal effect of the will and that this onus was not discharged because Mr Andresakis had failed to disclose the potential conflict and had failed to explore with Mr McClure the effect of the will and interrogate him about why he wanted to leave such a substantial gift to Dr Alexakis.

65. [308]

    As the June will and the July will were duly executed and testamentary capacity was accepted, the principles in (3) and (4) of my summary of Tobin v Ezekiel above are relevant to the determination of the Salvation Army’s grounds 3-7.

66. [309]

    In this context, Mr Wilson relied on the following as amounting to suspicious circumstances:

    1. (1)

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

    2. (2)

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

    3. (3)

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

67. [310]

    The active involvement in (1) and the quid pro quo arrangement in (2) (both of which depended on facts which were not established) have been addressed in the context of the challenges set out above.

68. [311]

    As to (3), Mr Wilson submitted that the following constituted suspicious circumstances: first, Mr Andresakis was prepared to act for Mr McClure after he was instructed that Mr McClure wanted to leave a substantial gift to Dr Alexakis because he put himself in a position of conflict; and, second, that he failed to explore with Mr McClure the reason for the gift.

69. [312]

    Whatever the utility of the classification of “most extreme category” in this context, I consider that the primary judge was correct to determine that the present case did not fall into that category, for the reasons her Honour gave: that Dr Alexakis was not present when Mr McClure gave instructions to Mr Andresakis or when the wills were executed; that Mr McClure was the source of the instructions; and that Dr Alexakis was not involved in their preparation, drafting or execution, other than for arranging the meetings. One only has to compare the present case with Callaghan v Myers to appreciate that it does not fall into the same category.

70. [313]

    It is apparent from [612] of the primary judge’s reasons that her Honour did not actually find that Mr Andresakis was in a position of conflict arising from Dr Alexakis, his wife and her family being clients of his firm (although her Honour found there to be “force” in the submission). What her Honour found, at [613], was that Mr Andresakis’ engagement with Mr McClure was not such as to act as a “complete mitigant” against undue influence or unconscionable conduct, if either be established.

71. [314]

    In cross-examination, Mr Andresakis denied that he was aware in June or July 2017 that when Dr Alexakis referred him to a patient and the patient gave him instructions to leave a gift to his doctor, there “may be a conflict in that occurring”. He also denied charging Mr McClure less because he was “doing it for a friend [Dr Alexakis]”.

72. [315]

    As referred to above, there was no suggestion that Mr Andresakis was himself gaining any benefit from drafting Mr McClure’s wills other than his standard fee or that he was party to any agreement with Dr Alexakis whereby he would benefit from the gift left to Dr Alexakis. Although it would have been more prudent for Mr Andresakis to cease to act for Mr McClure when he learned that Dr Alexakis would be a major beneficiary under the June will, I consider that the primary judge was correct to find that the evidence did not call into question Mr McClure’s knowledge and understanding of the June will or the July will or his appreciation of their contents and legal effect. For these reasons none of grounds 3-7 has been made out.

73. [316]

    Mr Wilson submitted that the primary judge ought to have found that the June will and the July will were affected by Dr Alexakis’ undue influence over Mr McClure. He submitted that Mr McClure’s vulnerability, which included fear of captivity in RPA where he regarded himself as a “prisoner” who was desperate to escape and fear of having to return to hospital when he was at home, coupled with Dr Alexakis’ superior ability to resolve Mr McClure’s concerns about remaining in hospital and provide him with sufficient care at home to prevent his imminent return to hospital, and Dr Alexakis’ active involvement in the creation of the June will and the July will, established undue influence.

74. [317]

    For the reasons given above, including those which address Dr Birch’s submissions that undue influence ought to have been found, none of grounds 8-13 has been made out.

75. [318]

    Mr Wilson submitted that Dr Alexakis was guilty of “probate fraud” when he introduced Mr McClure to Mr Andresakis, who was a member of a firm which had already drafted a will in which another of Dr Alexakis’ patients (Mr Debnan) had left him his whole estate. Mr Wilson accepted that this submission would fail if the Court were not satisfied that Dr Alexakis knew of the contents of the June will or the July will. However, he submitted that the Court would infer that Dr Alexakis knew of the contents of the July will because he delivered the McClure document and would also (by some unidentified path of reasoning) have known of the June will.

76. [319]

    I am not satisfied that the primary judge erred in not being persuaded that Dr Alexakis knew of the contents of either the June will or the July will. In these circumstances, no error in the primary judge’s decision not to find fraud has been established.

77. [320]

    Mr Wilson also submitted that, when recommending Mr Andresakis to Mr McClure, Dr Alexakis ought to have disclosed to Mr McClure that Mr Andresakis had drafted a will of a former patient, who had left him his entire estate. I reject this argument. Indeed, such a disclosure may have left Dr Alexakis open to the accusation that he had implicitly suggested that Mr McClure leave his estate, or part of it, to Dr Alexakis, which would have been improper having regard to the relationship of doctor and patient.

78. [321]

    Dr Birch challenged the primary judge’s alternative finding that if the presumption of undue influence applied, it had been rebutted. He submitted that her Honour’s finding that it was not possible to say “with certainty” what the reasons were for the change from the June will to the July will (see [654] above) was fatal to the suggestion that the presumption had been rebutted. He also submitted that the primary judge’s reference to Mr McClure’s power of revocation was irrelevant to the rebuttal of the presumption, particularly in circumstances where Mr McClure had told Mr Myhill that he wanted to change his will but had not been able to effect that change before he died because he was unable to find a solicitor who was acceptable to him.

79. [322]

    The primary judge’s reasons need to be read fairly and as a whole: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456. Her Honour’s use of the words “with certainty” are telling. The effect of what the primary judge was saying in [654] is that, although it could not with certainty be known (because Mr McClure was dead and could not tell us), there were various reasons to indicate why he changed the terms of the June will and made the July will. In substance, the primary judge considered that Mr McClure had to leave his estate to someone (since he did not want to leave anything to his brother); it was a large estate; he had a very limited circle of friends or contacts; and he appears to have respected and trusted Dr Alexakis.

80. [323]

    Further, Mr McClure considered that Mr Camilleri’s son had been “bleeding him dry”, which meant that a gift to Mr Camilleri would be likely to benefit his son, a consequence which was distasteful to Mr McClure, who had been disappointed when he gave a woman (not identified in the evidence) some money which she then gave to her daughter. Although he was fond of Hildegard and Mr Camilleri, he used them to perform services around the house and paid them for those services. He did not seem to regard either as capable of understanding his companies, managing his estate or being able to deal with the receipt of substantial funds (which may have jeopardised any pension either was receiving). By contrast, he respected Dr Alexakis as a professional man and regarded him as financially astute and able to understand company structures and safeguard the wealth Mr McClure had accumulated. Because of Mr McClure’s disappointment with the Salvation Army (which resulted not only from the child sexual abuse but also the departure of Mr Evans), his view that all charities were the same and his belief that the government should fund charitable activities, all charitable institutions (which would have been able to manage such a large estate) were disqualified as beneficiaries. Once they were disqualified, Mr McClure had few, if any, other candidates for the role of major beneficiary under his will apart from Dr Alexakis. Thus, although the primary judge correctly appreciated that one could not know with certainty, the evidence referred to above served to explain the change from the June will to the July will.

81. [324]

    It was telling that the appellants’ case theories, which were formulated around the June will, had difficulty in accommodating the July will. Their case regarding the June will was that the gift of 65% of the residue of the estate was Mr McClure’s quid pro quo for Dr Alexakis’ help in getting him out of RPA and keeping him out of hospital by visiting him at home. Having regard to the size of the estate, there would appear to be no particular reason for a further 25% uplift to be required for Dr Alexakis to make home visits after the making of the July will. In any event, the case theories were largely dependent on Dr Alexakis entering into the quid pro quo arrangement and knowing of the contents of the June will and the July will, neither of which was established.

82. [325]

    Mr Wilson also challenged the finding that if the presumption of undue influence applied it had been rebutted. He submitted that, contrary to the primary judge’s finding at [711], the gifts to Dr Alexakis under the June will and the July will did not represent Mr McClure’s free, independent, informed and voluntary acts. As he submitted in other contexts (as referred to above), Mr Wilson argued that the absence of independent legal advice and the power imbalance which characterised Mr McClure’s relationship with Dr Alexakis ought to have persuaded the primary judge that the presumption of undue influence (if it applied) had not been rebutted.

83. [326]

    For the reasons given above, I am not persuaded that there was any error in the primary judge’s alternative finding. There was ample evidence that Mr McClure knew and understood what he was doing and was not subject to undue influence by Dr Alexakis, whom, as the primary judge found, did not know at the relevant times that he was a beneficiary of either the June will or the July will and was not party to any quid pro quo arrangement with Mr McClure.

84. [327]

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

85. [328]

    The appellants challenged the costs order made by the primary judge that they ought pay their own costs of the proceedings at first instance. They submitted that they fell squarely within each of the two exceptions identified by the authorities referred to by the primary judge, including Nock v Austin (1918) 25 CLR 519 at 525 (Barton and Gavan Duffy JJ) and 528 (Isaacs J); [1918] HCA 73. The appellants also submitted that the circumstances of the will meant that it was important to establish whether the substantial gift by a patient to a general practitioner was properly made and that the primary judge’s refusal to allow the appellants’ costs indicated that her Honour’s discretion miscarried.

86. [329]

    I accept the appellants’ submissions on costs. While the evidence which emerged at trial was insufficient, as the primary judge correctly found, to establish undue influence and, indeed, was sufficient to rebut any presumption of undue influence, the prima facie case for undue influence appeared to be strong. The present was a case such as was referred to in In the Estate of Gertrude Martha Elizabeth Hacke; Public Trustee v Wilson (Supreme Court (NSW), Powell J, 13 November 1985, unrep):

87. [330]

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

88. [331]

    For these reasons, I consider that the primary judge’s discretion miscarried. The appropriate order for the costs of the proceedings in the Court below is that the costs of the appellants (the defendants in the Court below) be paid out of the estate.

Proper constitution of the proceedings

1. [332]

   I note for completeness that the appellants informed the Court that, whatever the outcome of the appeal, Ms Nasr would receive her gift of $10,000 from the estate. I understood that this course was taken to ensure that it would not be necessary to join her as a party since the parties’ agreement meant that she did not have an interest in the result of the proceedings.

2. [333]

   Before this Court reserved its decision, the Presiding Judge informed the parties that the Court considered that the proceedings were not properly constituted as Mr McClure’s next-of-kin (his brother, if he was still alive, or his brother’s descendants if he had pre-deceased Mr McClure) had not been joined as a party and had an interest as an intestacy could, at least potentially, be created if the gift to Dr Alexakis were found to have failed. Mr Wilson accepted that Mr McClure’s next-of-kin was a necessary party to the proceedings.

3. [334]

   The Court directed Dr Alexakis, as the grantee of letters of administration, to take all reasonable steps to contact Mr McClure’s brother or next-of-kin and file and serve an affidavit by 1 May 2024 setting out the results of such searches. Dr Alexakis filed an affidavit of Kristin Fulcher, the solicitor with carriage of the matter on behalf of Dr Alexakis, sworn 15 May 2024. She deposed to her searches which reveal that the deceased’s late brother, Herbert McClure, had two children, Julie Kennelly and Roger McClure. Ms Kennelly is Herbert McClure’s legal personal representative.

4. [335]

   While Mr McClure’s next-of-kin had an interest in the July will and the June will being set aside for undue influence, this interest was amply propounded and protected by all of the parties apart from Dr Alexakis, whose interest was to uphold the July will (and if not that will, the June will). The interest of Mr McClure’s next-of-kin would only be different from that of the appellants if the Court found that the July will or the June will was impugned by undue influence or otherwise.

5. [336]

   Because the appeals have not been made out, the question of what would happen if the gift to Dr Alexakis under the July will failed has become moot. In these circumstances, it is not necessary to join the late Herbert McClure’s legal personal representative or next-of-kin to the proceedings since they have no entitlement in circumstances where the July will has not been successfully impugned and, accordingly, operates in accordance with its terms.

Costs

1. [337]

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

Proposed orders

1. [338]

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

   1. (1)

      Allow the appeals and the cross-appeal on costs.

   2. (2)

      Otherwise dismiss the appeals and the cross-appeal.

   3. (3)

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

   4. (4)

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