“Doctor, Doctor, I need to write a new Will”
Mr McClure, the deceased, died on 21 November 2017 at the age of 84. He had no spouse or children. He was estranged from his only brother so his estate, throughout differing wills, was gifted to friends and his General Practitioner Dr Alexakis. He had made six different wills during his lifetime, and the final three wills (dated May 2016, July 2017 and June 2017) were the subject of scrutiny in the proceedings.
- In the May 2016 will, the deceased left his entire estate to the Salvation Army (Mr Masters the financial director). A few household contents were given to friends.
- In the June 2017 will, the deceased left 65% of his estate to Dr Alexakis, 25% of his estate to Mr Camilleri (a friend), and 5% each from his estate to Hildegard Schwanke and Irmgard Schwanke (a friend and her daughter).
- In the July 2017 will, the deceased left his home at Strathfield and 90% of the residue to Dr Alexakis, $10,000 to a carer, 9% to Mr Camilleri and 1% plus various chattels to the Schwankes and Mr Camilleri.
The deceased was suffering from serious medical conditions at the time he executed the June 2017 and July 2017 wills. He had diabetes and prostate cancer and had been admitted to hospital on numerous occasions. His GP, Dr Alexakis was treating him and began visiting him at home from January 2017 until up to his death.
Dr Alexakis’ evidence was that the deceased insisted he wanted to prepare a new will so he arranged for a solicitor to visit the deceased. The June 2017 will was prepared, and then soon after, the July 2017 will.
The Salvation Army, Mr Camilleri and the Schwankes argued that the gifts to Dr Alexakis were the product of undue influence, fraud or unconscionable conduct resulting from an unconventional doctor/patient relationship. Alternatively they argued the deceased did not know and approve of the contents of the will.
The factual findings
The evidence provided by Dr Alexakis was that he knew nothing of the terms of the June 2017 or July 2017 wills. Henry J accepted this evidence and gave reasons. Despite some minor inconsistencies in his evidence, this did not persuade the Court of Appeal that Dr Alexakis was a dishonest witness or impugn his credibility. In light of this finding Henry J found that no undue influence or fraud was made out to have been shown.
The Court of Appeal agreed, noting that that tasks Dr Alexakis performed, including conducting home visits, telephoning the deceased regularly and assisting him to find a solicitor to draft a will, were that of a dedicated, diligent medical professional, not someone seeking to take advantage.
The court found there was ample evidence that the deceased knew and understood his wills and was not persuaded that they had been entered into as part of a quid pro quo arrangement with Dr Alexakis.
Principles applicable to proof of a will
On Appeal, the court was asked to consider any presumption of undue influence in circumstances where a testator in poor health had left a substantial gift to a treating physician, and general equitable principles relating to unconscionable conduct.
The Court of Appeal outlined the principles applicable to proof of a will, noting:
- The onus of proving undue influence in probate is on those seeking to impugn the will on that basis.
- No presumption of undue influence arises in probate.
- The onus on the proponent of a will to prove that a testator knew and approved the contents, which arises if there are suspicious circumstances, does not also require the proponent to disprove undue influence.
- General equitable principles relating to unconscionable conduct ought not apply to testamentary gifts.
Costs
Henry J made no order as to the costs of the Salvation Army, Mr Camilleri and the Schwankes, with the intention that they bear their own costs of the proceedings. The Court of Appeal found that the prima facie case for undue influence appeared to be strong, and in those circumstances, the appellants were entitled to have their costs paid out of the estate.
Takeaway Message
In circumstances where there is a large estate involved, where the estate is not left to a ‘natural’ beneficiary (such as a family member) or where the wills are made closely to each other, a detailed written statement by the testator explaining the reasons for their testamentary intentions and who is aware of them may defuse possible questions on suspicious circumstances and undue influence after the date of death. Please contact Rebecca Tidswell at Carroll & O’Dea Lawyers on 02 8226 7315 should you wish to discuss this topic in greater detail.
