A Sydney doctor left tens of millions of dollars by a patient has denied he coerced a man into changing his Will in the New South Wales Supreme Court. He is being accused in court proceedings of “unconscionable conduct” after he emerged as the main beneficiary of his patient’s $30m estate. Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, discusses the issues of capacity, conflict of interest and undue influence.
The legal battle
A legal battle has ensued over the $30M estate of Mr Raymond John McClure, who died on November 21, 2017. Mr McClure had no family when he died.
In around June/July 2017, less six months before his death, Mr McClure changed his Will twice to leave the majority of his estate to his doctor, Dr Peter Alexakis, who had been treating him for around four years. In his previous wills, he left much of his estate to The Salvation Army, and to his (then) business partner.
The Salvation Army commenced Supreme Court proceedings challenging the validity of Mr McClure’s last 2017 Will alleging that Dr Alexakis engaged in “unconscionable” conduct and “groomed” Mr McClure into changing his Will.
The Salvation Army is seeking to have an earlier version of Mr McClure’s Will recognised by the court.
Mr McClure made several changes to his Will over a 10-year period, and a 2016 version cut out his business partner and gave the Salvation Army the bulk of his estate.
The most recent Will, made in July 2017, gave Dr Alexakis 90 per cent of his $30M estate. The Salvation Army had been completely removed as a beneficiary. A witness gave evidence to the court stating that Mr McClure had told them he changed his Will after speaking with Dr Alexakis about the Salvation Army and allegations of links to child sex abuse matters.
The Salvation Army claims Dr Alexakis “cultivated a friendship” with Mr McClure, visiting him in hospital almost every night between May 26 and June 26, 2017.
It has been suggested that the doctor “groomed him” into making a Will that would benefit the doctor, noting that Dr Alexakis “occupied a position of trust, confidence and loyalty” as well as a “position of ascendancy over him”. However, Dr Alexakis denies that he had any knowledge that he was the main beneficiary of the Will.
The Court recently heard evidence from Dr Melanie Wroth who met with Mr McClure and two other doctors in June 2017. This meeting occurred after one of the doctors overheard Mr McClure discussing his will with his lawyer, Mr Angelo Andresakis, in his hospital room earlier that month.
Dr Wroth is the senior staff specialist in geriatric medicine at the Royal Prince Alfred (RPA) hospital and the chief clinical adviser for the federal Aged Care Quality and Safety Commission. The Court heard that Dr Wroth has extensive experience in elder abuse and was a senior member of the guardianship division of the NSW Civil and Administrative Tribunal.
Dr Wroth informed the Court that she believed Mr McClure was vulnerable to exploitation when he was in hospital. In 2017, Dr Alexakis regularly visited Mr McClure at home and in hospital, which was unusual for a doctor-patient relationship. She explained that there is a power imbalance between all patients and their doctors, but that the “highly irregular” nature of the relationship between Dr Alexakis and Mr McClure meant this was greater than normal. Dr Wroth elaborated, “the power imbalance would be on the basis of both the respect Mr McClure had for Dr Alexakis’s position as a general practitioner… and it would also be on a basis of his [Mr McClure’s] reliance … on Dr Alexakis for all of his social interactions”.
She went on to say, “there was such a great respect for his position as a medical practitioner, and there was a belief that the extra attention that he was getting in relation to what would be a normal doctor-patient interaction, he was flattered by that, and he valued that he had someone he could sit down and talk to when there was nobody else in his life with who that could occur.”
Court documents show that Dr Alexakis launched legal action against the Salvation Army and Frank Camilleri, after a caveat was lodged against the estate.
The Salvation Army also claimed in court documents that the Will was made under “suspicious circumstances” and that Mr McClure was too weak and feeble that very little pressure was required to influence him.
Dr Alexakis states he had no knowledge Mr McClure included him in his Will and that he never discussed the extent of his estate with his former patient. To make matters more suspicious, it has been revealed that this was not the first time the doctor had benefited from a Will made by one of his patients.
Conflict of Interest
As part of this legal battle, it’s also been claimed that Dr Alexakis introduced Mr McClure to a lawyer called Angelo Andresakis, who prepared his last two Wills. Dr Alexakis had also referred other patients to this same lawyer, with one patient changing his Will to leave his entire estate to Dr Alexakis.
Dr Alexakis admitted during a hearing that it was the second time he had benefited from the Will of a patient which had been finalised by lawyer Angelo Andresakis – the lawyer who assisted Mr McClure prepare his final Will.
Andresakis also acted for the GP’s wife, who Alexakis told the court owned at least 17 properties, including eight shops, a bowling alley, a large office complex, a five-star hotel and four other properties in Greece. Andresakis had also prepared Alexakis’ father’s Will.
Andresakis stated there was no reason for him to second guess Mr McClure’s wishes when he made two Wills for him after four visits to his hospital and house in mid-2017. The lawyer denied any suggestion that he should have checked with Mr McClure whether he was sure he wanted to leave 90% of his estate plus his multi-million-dollar home to his doctor. In fact, he also did not feel the need to read the will to Mr McClure to ensure he understood its contents, despite Mr McClure having cataracts which meant he used a magnifying glass with a light attached to read.
Andresakis had previously said Mr McClure appeared mentally sharp and was not having difficulty understanding the Will.
Challenging a Will that was executed under suspicious circumstances, or where the Will-maker lacked testamentary capacity or was unduly influenced
To have testamentary capacity, the Will-maker should have ‘sound mind, memory and understanding’. Generally, they should be able to understand what it is to make a Will, identify what assets they own and how much they are worth (in a general way) and identify the people they wish to benefit (or who might have a claim on their estate).
If a person suffers from a ‘disorder of the mind’ such as paranoia or delusions, or advanced dementia, then their capacity to make a Will might be limited.
Having a treating medical doctor certify a person’s capacity to make a Will (at the time it was signed), coupled with evidence given by the witnesses to the Will and evidence from the lawyer who prepared it (if one was involved), will usually be enough to establish whether the will-maker had capacity. This is not always the case, however, and broader investigations sometimes need to be carried out.
Undue influence
Wills can be challenged if someone believes the Will was made under the influence of an overbearing relative, friend, carer, or adviser.
For there to be undue influence, there must be coercion, which can happen if there is an imbalance of power in the relationship between the Will-maker and someone who is set to benefit from the Will.
Often, undue influence is coupled with the Will-maker’s loss of testamentary capacity. For this reason, it is not common to challenge the validity of a Will based on undue influence alone, but rather in conjunction with a challenge around the testamentary capacity of the Will-maker.
In most cases, the people who challenge the validity of a Will are those who receive a larger share under a prior Will.
Although there is no strict time limit to challenge a Will, steps should be taken as soon as possible, preferably within six months from the date of death. This is because an executor can begin distributing the assets of the estate to beneficiaries under a Will once six months from the date of death has passed, if they have not received notice of any claim on the estate. Once the estate has been distributed, you will lose the opportunity to challenge the Will.
Doctor’s conflict of interest
When a doctor accepts the promise of a bequest in their patient’s Will, or a gift, the patient’s expectations may change, and the boundaries required for ethical patient care can become blurred. The general nature of the doctor-patient relationship means that the doctor holds a position of power and influence, particularly so when a patient is vulnerable such as at the end of their life or when they are receiving palliative care.
It is difficult for a doctor to accept a personal benefit from a patient’s bequest without the question of undue influence arising. After all, once the patient has passed away, they can no longer clarify what their intentions were. The issue is not only whether a doctor may have influenced the patient to make the bequest but, also, when a doctor is seen to be personally benefiting from having provided professional care to a patient, this can affect the public perception of that doctor, and the profession as a whole.
This issue is reinforced in The Medical Board of Australia’s Code of Conduct: Good medical practice which outlines the importance of independence of medical practitioners when treating patients. Clause 8.12 states that “doctors must be honest and transparent in financial arrangements and must not encourage patients ‘to give, lend or bequeath money or gifts that will benefit them directly or indirectly'”.
In circumstances where a doctor is named as a beneficiary under one of their patient’s Wills, and they are employed by or practice at a hospital or other medical facility, they should always check whether the medical facility has a policy about accepting gifts from patients and ensure they are acting in line with such policies.
Attwood Marshall Lawyers – helping you take action if you believe someone has been unduly influenced to write their Will
It is important to seek immediate advice if you have concerns about the validity of a person’s Will. After that person passes away, there is a very brief window of opportunity to take steps to ensure that the Will was properly made. Challenging the validity of a Will can be a complex process, so it is important to seek advice from a lawyer who is knowledgeable and has the necessary experience in this complicated area of law.
At Attwood Marshall Lawyers we have one of the largest Wills & Estates departments in Australia, which contains dedicated lawyers who solely practice in estate litigation.
If you believe a Will is invalid due to the Will-maker being unduly influenced or due to unconscionable conduct, and would like further advice please contact Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or phone 1800 621 071.
Update – 20 May 2023
The long legal battle between Dr Peter Alexakis, The Salvation Army and Mr McClure (the deceased’s) former business partner and friends has come to an end with the Justice Patricia Henry ruling in favour of the doctor.
Dr Alexakis is set to inherit $24 million after Justice Henry found:
- There was no evidence to support the allegations made against the doctor that he had unduly influenced his patient to update his Will to benefit him.
- Having withdrawn his position as the patient’s GP amidst an investigation launched by the police following a complaint made about the doctor, his actions indicated he was not seeking to manipulate his patient.
- There was no evidence that Dr Alexakis made the offer to take care of Mr McClure once he left hospital.
- It was not unconscionable for the doctor to inherit Mr McClure’s estate notwithstanding the monetary value of the inheritance those gifts and the primary relationship between Mr McClure and Dr Alexakis was that of patient and doctor.
A separate case has been launched by the deceased’s former business partner, Mr Camilleri, in the Supreme Court of New South Wales in an attempt to stop Dr Alexakis receiving his share of the estate, which is being defended by the doctor.
