DEFENDANTS WANT THE COURT TO HEAR THE PROBATE SUIT AND THE CLAIMS OF UNDUE INFLUENCE TOGETHER

Alexakis v Masters [2021] NSWSC 158 (1 March 2021) 

This case involves the defendants seeking for the probate hearing and claim for undue influence be tried together while the plaintiff asserts that it should be done separately.

Facts:

Mr Raymond John McClure died on 21 November 2017 at the age of 84, he left an estate worth over $30 million. He did not marry and had no dependents.

For over 40 years, Mr Frank Camilleri maintained the deceased’s investment properties. And the deceased had a longstanding friendship with Ms Hildegard Schwanke and her daughter. In addition, the deceased had long admired the charitable work of the Salvation Army.

In the last years of his life, the deceased received medical treatment from a general practitioner, Dr Peter Alexakis. In the six months before he died, the deceased gave the bulk of his estate to Dr Alexakis in two wills, which substantially displaced all the prior objects of his testamentary bounty.

Mr Camilleri, Ms Schwanke and the Salvation Army now challenge the validity of these last two wills made in mid-2017. They contend the two wills were executed in suspicious circumstances that indicate Dr Alexakis exercised undue influence over the deceased sufficient to prevent their admission to probate. Alternatively, they contend that Dr Alexakis was in a relationship of presumed or actual undue influence over the deceased, such that other doctrines of undue influence may be brought to bear to prevent Dr Alexakis benefitting under either of those wills, even if they are otherwise valid.

Dr Alexakis denies he exercised any form of undue influence over the deceased. He contends that the 2017 wills are valid and should be admitted to probate and that the benefits that he receives under them should not be modified by a grant of equitable relief to any of the other parties.

Mr Camilleri seeks by the filing of a second Cross-Claim to apply to have the Salvation Army’s probate challenge to the 2017 wills heard together with his general equitable claim that Dr Alexakis exercised undue influence over the deceased, thereby potentially subjecting the dispositions under the two wills to a constructive trust. Ms Schwanke and the Salvation Army support Mr Camilleri’s application.

Dr Alexakis resists the application. He contends that the probate action should be heard separately and before the other general equitable claims in relation to the dispositions of interests in the deceased’s estate.

Issue: Should the probate suit to determine the validity of the deceased’s last two wills should be tried at the same time as the broader claims of undue influence or should they be tried separately?

Law:

• Uniform Civil Procedure Rules 2005, R.28.5

Analysis:

It would be more efficient for the probate issues and the claim based in equitable undue influence to be decided with the probate proceedings and the two sets of issues should be heard together. The Salvation Army would be seeking to advance a claim that suspicious circumstances existed in relation to the disputed 2017 wills pointing to the likelihood of probate undue influence; and the factual matrix giving rise to the alleged ‘suspicious circumstances’ would also serve as important evidence of a relationship of equitable undue influence of Dr Alexakis over the deceased.

The medical condition of the deceased and the prominent role in his treatment of Dr Alexakis are common elements of both forms of alleged undue influence. The parties were directed to supply a list of the lay and expert medical witnesses that they are likely to call both on the probate issues and on the equitable undue influence issues. The lists produced showed there was a substantial overlap in both the lay and expert witnesses on both these sets of issues. It seems to the Court more efficient to have these two sets of issues decided together.

Conclusion: The Court therefore will grant leave to Mr Camilleri to file his second cross-claim, so that Mr Camilleri’s equitable undue influence claims shall be heard together with the probate issues in the proceedings.

#ProbateLaw