Recent Cases

Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118 (22 May 2024) (Ward P, Gleeson and Adamson JJA)


EQUITY — unconscionable conduct — whether equitable principles of unconscionable conduct apply to testamentary gifts as they apply to inter vivos transactions — where testator suffers from special disability — where beneficiary was aware of testator’s special disability — whether it was unconscionable for beneficiary to retain the benefit of a testamentary gift made in the course of a doctor/patient relationship

EQUITY — undue influence — whether equitable principles of undue influence apply in probate as they do to inter vivos transactions — whether presumption of undue influence arises in circumstances where testator leaves substantial gift to treating physician — protection of testamentary freedom in testamentary dispositions

EVIDENCE — credibility — whether primary judge erred in accepting evidence of testator’s treating physician who was also principal beneficiary under testator’s will — whether physician was a dishonest witness — where there were minor inconsistencies in physician’s evidence

SUCCESSION — contested probate — lack of knowledge and approval — suspicious circumstances — where testator in poor health left substantial gift to treating physician — whether there was a quid pro quo arrangement between testator and beneficiary — whether beneficiary knew of the contents of testator’s will — onus of proof on beneficiary to prove that testator knew and approved of the contents of his wills

SUCCESSION — contested probate — undue influence — whether testator was subject to undue influence — where testator in poor health left substantial gift to treating physician — where treating physician recommended solicitor to testator to draft his will — whether will represented testator’s true intention — onus of proof of undue influence in probate — whether presumption of undue influence arises in probate — whether general equitable principles of unconscionability apply in probate

SUCCESSION — costs — whether appellants were entitled to have their costs paid out of the estate