The deceased will maker in this case study was Raymond McClure, who never married nor had any children. In 2015 the deceased was diagnosed with terminal cancer. He made three subsequent Wills following his diagnosis, and ultimately died on 21 November 2017 aged 84. His Estate was worth about $27 million.

Four parties

The Plaintiff in the proceedings was Dr Alexakis, who was the deceased’s General Practitioner.

The First Defendant (and a Cross-claimant) was the Salvation Army.

The Second Defendant (who was also a Cross-claimant) was the deceased’s [friend] Mr Camilleri.

The Third & Foutrh Defendants (you guessed it – also Cross-claimants) were a Mother and daughter,  the Schwankes.

Three Wills

The deceased’s first Will subject of the proceedings was made on 27 May 2016. It left the majority of his Estate to the Salvation Army (similar to an earlier will made in 2012).

The second Will made in Royal Prince Alfred Hospital on 8 June 2017 bequeathed 65% of the Estate to the Doctor, and the remainder between Frank Camilleri and the Schwankes.

The third Will made at the deceased’s home on 10 July 2017 left almost all of his Estate to the Doctor, being the deceased’s Strathfield home and 90% of the residue of his Estate. The balance of the Estate, together with some specific personal effects, were left to Mr Camilleri, Mother Schwanke and the deceased’s carer at the time.

Two broad approaches

Each party argued that the Doctor should not be given a grant to deal with the Estate, as sought by him, on the deceased’s final Will made on 10 July 2017. The challenges to the Wills were not made against the deceased lacking testamentary capacity, or that the Wills were not executed in accordance with the applicable law, being the Succession Act 2006 (NSW).

The Salvation Army claimed both 2017 Wills should be declared invalid, due to a lack of knowledge and approval, undue influence, and/or fraud, from the Doctor. The Salvation Army sought a grant on the deceased’s 2016 Will (revoked by both 2017 Wills) in which it was the main beneficiary. It alternatively sought that the Doctor held his inheritance from the deceased on constructive trust for the Salvation Army, with the Doctor obtaining the gifts by actual and presumed undue influence.

Mr Camilleri also sought a declaration that the Doctor’s gifts were held on constructive trust but for him and the Schwankes, as the Doctor obtained the gifts by unconscionable conduct and/or equitable undue influence, and it would not be right for the Doctor to keep them.

The Schwankes, interestingly, argued that the 2017 Wills were valid, but the clauses providing the gifts to the Doctor (and appointment of executor) were challenged on the basis of lack of knowledge, and approval, and undue influence. They sought Orders for a grant to be made on either of the 2017 Wills as though the deceased had not put the Doctor in them, which would mean Mr Camilleri and the Schwankes would receive the whole of the Estate. Alternatively, a declaration that the Doctor held his interests subject to constructive trust on behalf of themselves and Mr Camilleri.

The Doctor denied any suspicious circumstances existed, denied unduly influencing the deceased, and generally denied engaging in any conduct which would cause the 2017 Wills to be interfered with by this Court.

One lawyer

One aspect of the deceased’s 2017 Wills that the defendants were displeased about, was that the Doctor introduced the deceased to his solicitor. Naturally, the solicitor who took the deceased’s instructions and drafted the Will was a witness in the proceedings, as was the Doctor.

The defendants criticised the solicitor for accepting the deceased’s instructions to leave the majority of his Estate to his Doctor, rather than embarking on a line of questioning as to why he had chosen to do so, to properly test if the deceased knew the effect of his Will.

What did the court consider?

There was no shortage of medical records in this matter, nor witnesses who’s evidence was tested via cross-examination during the 9 day hearing. The court had a large body of evidence from which to make findings.

For undue influence, the claimants argued that the deceased did not know and approve of the contents of his Will and therefore there must have been coercion.

For unconscionable conduct to have occurred, the Doctor had to have taken advantage of a special disadvantage of the deceased, arising due to the nature of Doctor and patient relationship.

What did the court decide?

The court found no undue influence or unconscionable conduct from the Doctor occurred. It dismissed each claim and held the Doctor was entitled to receive a grant to carry out the deceased’s final Will of 10 July 2017, in which he was the major beneficiary.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*