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PAUL SANT (SOLICITOR) PARTNER AT LONGTON LEGAL
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Phone: 8599 8877
Level 4, 370 Pitt Street, Sydney Ph: 8355 9999
Email: paul.sant@longtonlegal com au Maltese Spoken
(and appointment of executor) were challenged on the basis of lack of knowledge, and approval, and undue influence
They effectively 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.
They alternatively sought 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.
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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 whose 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.
