Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118

Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118

There is no presumption of undue influence or unconscionability in probate; the party seeking to impugn testamentary gifts bears the onus. The evidence did not establish that Dr Alexakis exercised undue influence or unconscionable conduct over Mr McClure. Dr Alexakis was not shown to have had knowledge at relevant times that he was a beneficiary, nor was there credible evidence of a quid pro quo arrangement. Mr McClure knew and approved the contents of his wills, and the substantive appeal fails. However, circumstances created reasonable doubt for investigation, so appellants' costs should be paid out of the estate.

Parties
First Appellant: Hildegard Schwanke; Second Appellant: Irmgard (Marianne) Schwanke; First Respondent: Peter Alexakis; Second Respondent: Gary Robert Masters; Third Respondent/appellant/second Cross Respondent: Frank Camilleri; Cross Appellant: Salvation Army (NSW) Property Trust
Jurisdiction
Australia
Judgment Date
22 May 2024
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeals and cross-appeal allowed in part (costs only), otherwise dismissed; appellants' costs to be paid out of estate, orders of primary judge set aside regarding costs.
Legal Topics
Undue Influence, Unconscionable Conduct, Contested Probate, Testamentary Capacity, Knowledge and Approval, Costs
Equity Succession Evidence Undue Influence Unconscionable Conduct Contested Probate Testamentary Capacity Knowledge and Approval +1 more

Case Brief

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Parties

Hildegard Schwanke

First Appellant

Irmgard (Marianne) Schwanke

Second Appellant

Peter Alexakis

First Respondent

Gary Robert Masters

Second Respondent

Frank Camilleri

Third Respondent/appellant/second Cross Respondent

Salvation Army (NSW) Property Trust

Cross Appellant

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether the equitable principles of undue influence or unconscionable conduct apply to testamentary gifts as they apply to inter vivos transactions
  2. 2 Whether presumption of undue influence arises in circumstances of doctor/patient relationship where substantial gift is left to doctor
  3. 3 Whether primary judge erred in accepting evidence of the treating physician and principal beneficiary as honest

Ratio Decidendi

There is no presumption of undue influence or unconscionability in probate; the party seeking to impugn testamentary gifts bears the onus. The evidence did not establish that Dr Alexakis exercised undue influence or unconscionable conduct over Mr McClure. Dr Alexakis was not shown to have had knowledge at relevant times that he was a beneficiary, nor was there credible evidence of a quid pro quo arrangement. Mr McClure knew and approved the contents of his wills, and the substantive appeal fails. However, circumstances created reasonable doubt for investigation, so appellants' costs should be paid out of the estate.

Court Disposition

Appeals and cross-appeal allowed in part (costs only), otherwise dismissed; appellants' costs to be paid out of estate, orders of primary judge set aside regarding costs.

Orders

  • Allow the appeals and cross-appeal on costs.
  • Otherwise dismiss the appeals and cross-appeal.