Chapter 22 ...Report to the Attorney-General
AN OPEN LETTER
THE ATTORNEY - GENERAL QLD.
THIS IS A REPORT ON THE LAW AND THE
THE JUDICIARY AND THE FAILURE OF THE
JUSTICE SYSTEM TO ADEQUATELY PROTECT
THE PUBLIC FROM INCOMPETENT LAWYERS
AND JUDGES APPOINTED TO ENSURE THAT
JUSTICE IS NOT ONLY DONE BUT SEEN TO BE
WRITTEN BY :
26 BRADLEY AVE.
MIAMI QLD. 4220
Attorney-General 26 Bradley Avenue
Hon. K Shine LL.B Miami Qld. 4220
Parliament House 7 July 2008
Cnr. George and Alice Streets
Brisbane Qld. 4000
This is a report on a civil jurisdiction court case held in the Supreme Court of Queensland in late 2002 – Ref. Smyth v Whiteside – Case no. 7493 of 2002
For some time I have wrestled with the idea of promoting my cause for social and legal justice with particular reference to the above case presided over by the Chief Justice of Queensland the Hon. Paul de Jersey. I believe your Department and in fact all Queenslanders, should be aware of the injustices that are perpetrated more often than not by those persons charged with the responsibility of seeing that justice is in fact carried out fairly and equitably.
That I have the effrontery to criticise the findings and capabilities of the Chief Justice, as well as the professionalism of Counsel assisting may not sit well with you as a former practising lawyer, but a careful study of the case history would convince even the most average person that justice was not done, let alone, seen to have been done.
Unfortunately, a High Court decision has ruled that lawyers are immune from acts of negligence – in other words the rule of law does not apply to them. It is a case of lawyers and barristers looking after their own, thus enabling them to conjure up all sorts of mystique about their work.
In the above case, and as an example of inadequate professionalism, I draw your
attention to just two of many incidents where my barrister Mr. Conrick Q.C. got
In addressing the Chief Justice, even my own Counsel got it wrong. Mr.
Conrick said, and I quote, ‘Mr. Whiteside is also a director of a Retirement
Village or Nursing Home’ – wrong -- I am a painter and paperhanger by
- He also commented that in 1997, the deceased recalls taking Mr. Jowett to Mr. Jowett’s solicitor – wrong – It is not possible for a deceased person to take himself to his solicitor.
It has often been said that the law is an ass, and it has often been acknowledged that so-called professional courtesy is a system whereby lawyers make life easier for themselves and for each other, generally at the expense of their clients – how true in my case.
Having prefaced my report with this introductory pre-amble, I encourage you and or your officers to thoroughly examine such report with a view to ascertaining if there are areas where improvements can be made to ensure that more professionalism becomes evident in our courts, so as to overcome the perception of the public that the law is a protected and self serving profession.
The Hon. Paul de Jersey Q.C. Magistrate
Bruce Rugby Whiteside (Retired Pensioner) Plaintiff
Andrew Thomas Smyth (Solicitor) Defendant
Mr. Conrick - Counsel for the - Plaintiff
Mr. Clarke - Counsel for the - Defendant
McDonald Chesters - for the - Plaintiff
Robbins Watson - for the - Defendant
The trial commenced on 27 October 2003 and concerned the mental capacity of the late Thomas Jowett at the time of making his last Will and Testament and Enduring Power of Attorney on 1 December 1999. Mr. Jowett died on 6 July 2001 aged 87, and had no wife or children, all of whom had pre-deceased him.
The defendant Andrew Smyth, a partner in the firm Robbins Watson, solicitors of Burleigh Heads, sought probate for a will dated 15 December 1998, whilst I as the plaintiff, sought probate for a later will dated 1 December 1999.
Orders were made in November 2003 by the Chief Justice ruling that testamentary capacity of the testator as at 1 December 1999 was not proven, and declared for the force and validity of the earlier will dated 15 December 1998.
It is proposed to show that the Chief Justice not only erred in his findings, detrimental to me as the sole beneficiary, but also wrongly declared for the validity of the earlier will.
Evidence from the Transcript of Proceedings reveal a more receptive attitude from the Chief Justice towards the defendant, as opposed to the plaintiff.
In light of the Chief Justice’s acknowledgment to the Court advising that ‘he had not had a will case for some time’ and ‘had not presided over a civil trial for ages’ it is contended that it was inappropriate for him to act.
I was at all times the deceased’s legally appointed Enduring Power of Attorney (E.P.O.A. ) from 1 December 1999 until Mr. Jowett’s death, a fact Mr. Smyth the defendant, refused to challenge in Court, because recognition of the E.P.O.A. would have jeopardised his case for seeking orders to recognise the legitimacy of the earlier will.
The E.P.O.A. was however, recognised by various institutions including the Commonwealth Bank, the Superannuation and Pension Fund authorities, the Adult Guardian, the Gold Coast Hospital, and others.
The defendant at a meeting held in the office of the Gold Coast Hospital on 6 January 2000 asked to see the E.P.O.A. , and after glancing at it, commented –
‘it was not worth the paper it was written on’ and upon a suggestion of one of those present to contact Whitehead and Payne, the solicitors who prepared the E.P.O.A. to verify it’s validity, Mr. Smyth responded –
‘don’t bother, as they will only protect themselves’
Senior hospital staff and representatives from other government agencies including the Adult Guardian and Aged Care Assessment team were in attendance at the time.
It should be pointed out that both the E.P.O.A. and the contested Will were both drawn up and executed on the same day. Of significance is the fact that Mr. Smyth refrained from attempting to prevent me from using the E.P.O.A., even to the extent of allowing me to obtain the death certificate and finalise the funeral arrangements.
An examination of the hospital records obtained under F.O.I. legislation, revealed numerous notes concerning Mr. Jowett’s medical problems, some of which dated back many years, but nowhere is it stated that he had dementia, lacked capacity, or was of unsound mind on or prior to 1 December 1999.
Dr. Chai, understood to be in charge of A.C.A.T. at the time of Mr. Jowett’s hospitalisation, provided two reports dated 28 July 2003 and 24 October 2003 to the defendant’s solicitors Robbins Watson (just three days before the commencement of the trial)
It is not known whether Dr. Chai tendered them of his own volition, or had in fact been asked by the defendant to supply them. Dr. Chai’s evidence will be the subject of closer scrutiny later on in this report, as it seems both defence Counsel and the Chief Justice put great store on his testimony, even though such testimony had nothing to do with the mental capacity of the deceased at the time of making his last will.
In concluding this introduction, it could be argued that I had a legal right of appeal against the eventual decision, but as a pensioner with limited funds, this option was out of the question.
The cost of my own legal representation was close to $114,000, added to which would have been the cost of the defendant’s legal team, who were fully aware, that even if they lost the case, they would have netted somewhere in the vicinity of $50,000, and hence the challenge. Additionally, there was further income to be had by way of Executor fees if Robbins Watson were successful in their action.
The indicative value of the estate was $500,000.
The medical certificate showing the cause of Mr. Jowett’s death was issued on 6 July 2001 by a Dr. Bevan. The disease or condition directly leading to his death was listed as being bronchopneumonia suffered over the previous four days.
Other significant conditions were listed as previous strokes, and multi-infarct dementia that had existed over a period of 5 years.
In view of the Chief Justice’s findings in which he ordered for the force and validity of the 15 December 1998 will, it is suggested he failed to take into consideration the full impact of what Dr. Bevan was saying. If one is to accept Dr. Bevan’s diagnosis, it suggests that prior strokes and multi-infarct dementia since July 1996 must also have been contributing factors to death.
It appears from reading the defendant’s testimony, that he provided no professional medical evidence to support his claim that on 15 December 1998, the date of signing the prior will, Mr. Jowett was fully cognitive, lucid, in full control of his senses, not lacking in capacity, and showed no signs of symptoms referred to in the death certificate .At this time, it is relevant to quote from Mr. Smyth’s own diary.
In November 1996 he wrote the following words -
‘I think Mr. Jowett understands what he is doing, he is indecisive and a bit impetuous’.
Later in August 1997 he recorded the following words in his diary –
‘Mr. Jowett can’t write down what he wants, he has it in his head’.
This is hardly conclusive evidence of a man who was in full control of his faculties.
It seems Mr. Jowett, regardless of Dr. Bevan’s opinion, made a remarkable recovery as at 15 December 1998, yet some 4-5 months later he was ailing again.
Regardless of such important and obvious observations, the Chief Justice was still able to declare -
‘Mr. Smyth sufficiently clearly established that as at 15 December 1998, the testator had capacity, and that he knew and approved the contents of the will he then made’.
The evidence clearly showed otherwise.
According to Queensland Health, the Department indicated that multi-infarct dementia is due to small strokes or infarcts, and is more common in people with a history of high blood pressure or diabetes mellitus .It comes on suddenly, and its course is marked by a sudden deterioration followed by a period of relative stability.
What also is of interest is that Mr. Smyth, the defendant, had drawn up a total of at least 10 wills between 18 October 1995 and 15 December 1998.
This should have alerted him even more when preparing the 15 December 1998 will.
Mr. Smyth would have done no more and no less than witnesses McCracken and Canning did when they were involved in interviewing and preparing the will requested by Mr. Jowett on 1 December 1999, yet the later will was rejected.
The Chief Justice, Paul de Jersey:
During the early part of the hearing, His Honour on at least four occasions emphasised that he was only concerned as to the mental capacity of the deceased, at the time of signing his last will on 1 December 1999.
His exact words taken directly from the transcript of proceedings, were:
‘It is just a matter of looking precisely at his (Mr. Jowett’s) medical condition on 1 December 1999’, and, none of that really matters, we have to focus on his condition at the time’, and, ‘it’s a short issue isn’t it, did he have capacity at the time’, and, ‘the issue is whether on the date of execution of the will, the deceased had testamentary capacity’.
It is readily apparent from the above statements from the bench, that the Chief Justice was making it quite clear to Counsel that he wanted proof that the deceased had testamentary capacity at the time of signing his last will.
There was only one professional person present on the day in a position to produce the evidence sought – Ms. Canning, a legal practitioner with the firm Whitehead and Payne.
In response to questions put to her, on her opinion as to Mr. Jowett’s capacity at the time of executing the 1 December 1999 will, Mrs. Canning informed the Court :
‘Mr. Jowett appeared perfectly lucid to me’
‘He seemed very aware of what he is doing’
‘He was quite adamant about what he wanted’
‘He fully understood them’ (the will and the E.P.O.A.)
‘He was a man who knew what he wanted, and was quite succinct at expressing his views’.
Although Ms. Canning’s evidence was given under Oath, it is quite evident from the findings of the Chief Justice, that he expected more from her. Ms. Canning was not a medical expert capable of swearing under Oath as to capacity to make a will, but she was able to give a firm and precise view of Mr. Jowett’s condition at the time, and his understanding also, of the significance of what he was doing in executing the will.
The Chief Justice described Ms. Canning’s approach ‘as cursory and wholly inappropriate to the situation’, and yet he failed to apply the same approach to the evidence of the defendant, who admitted he was ‘aware of Mr. Jowett’s hospitalisation, medical condition, and forgetfulness’, yet he continued to make out a large number of wills without seeking a specialists opinion as to capacity.
The Chief Justice by placing little credence to the evidence of Ms. Canning, ignored his own address to Counsel, in which he was adamant that the trial’s outcome would rest solely upon the issue of ‘looking precisely at the testators mental capacity on 1 December 1999’.
Much was made of the fact that I, the plaintiff, faxed details of Mr. Jowett’s will instructions direct to the office of Ms. Canning after first having it signed by him, but these wishes were exactly the same as those conveyed verbally by Mr. Jowett to solicitors McCracken and Payne some 14 days earlier.
When questioned as to whether he had any concerns about the deceased’s testamentary capacity, Mr. McCracken responded as follows –
‘No, I had no problem with him, I would have been quite prepared to do a will for him, and lose no sleep over it whatsoever’.
Mr. McCracken, just one week prior to the signing of the 1 December 1999 will, rang Mr. Jowett’s doctor, Mr. Clarke, to enquire as to his health, with this response –
‘I have no reservations about Mr. Jowett’s capacity to understand the will which he would be asked to sign’.
This verified the observations of Ms. Canning and supports the claim that justice was compromised by denying me my rightful inheritance.
What is particularly galling, is the acceptance by the Chief Justice of unsupported evidence by Mr. Smyth, of Mr. Jowett’s competence at the time of making the 15 December 1998 will, as compared with the strong evidence supplied by my Counsel, that at the time of making his 1 December 1999 will, the deceased was in fact in full control of his faculties, and knew exactly what he was doing.
In respect to whom the onus of proof as to mental capacity would fall, the Chief Justice surprisingly took a high handed approach quite unbecoming of any magistrate, let alone the Chief Justice himself. This culminated in his direction to Mr. Conrick, in the following terms:
‘You are going to prove it (capacity) or not, otherwise you will simply tender the will and sit down and pass over to Mr. Clarke’. (the defendant’s counsel)
There are many other instances within the transcript of proceedings where the Chief Justice appeared somewhat impatient to have the trial concluded quickly, as per his following comments:
‘What do you mean late, I have a commitment at five’ and,
‘No unnecessary witnesses’. These were commonplace throughout the trial.
Whilst not crucial to the ultimate decision handed down, these, and similar comments were unsettling to both Counsel and witnesses alike.
Dr. Chai – Physician and Geriatrician:
Dr. Chai, although a specialist in his field, could not establish with any degree of certainty, that the deceased lacked mental capacity on 1 December 1999. He was one of a team in late December 1999, early January 2000 called in to assess whether Mr. Jowett should be admitted to a nursing home for ongoing care.
Rather than have him admitted, Dr. Chai seemed perfectly happy to have him released in my care.
Whilst not trying to be evasive, Dr. Chai, in answering questions put by counsel for both parties used phrases similar to the following –
‘There is a difficulty in diagnosing dementia’ and
‘Anxiety can lead to deterioration in cognitive functioning’
This he said, ‘probably occurred at about the time of Mr. Jowett’s admission to hospital on 8 December 1999, and would have partially been due to the absence of his friend the plaintiff, who was holidaying in New Zealand.’
‘I think’ – ‘it may well be’ – ‘that’s possible’ – ‘it depends upon’ – ‘I suppose’.
None of this is conclusive one way or the other, but he did say :
‘It is possible that Mr. Jowett had capacity on 1 December 1999 and 17 November 1999’.
Dr. Chai was prepared to acquiesce in Mr. McCracken’s assessment that the testator had capacity at the time his interview with Mr. Jowett took place, but the Chief Justice, although stating he relied on the ‘careful and persuasive evidence of Dr. Chai’, raised other issues he thought were more important.
Dr. Ziukelis – Psychiatrist :
I personally took Mr. Jowett (at the time he was in my care) to Dr. Ziukelis because of my concern for his ongoing health problems. This occurred well after the date of signing the will.
Mr. Smyth and his firm decided they too would contact the doctor to obtain an opinion as to the likely mental capacity of Mr. Jowett as at the time his last will was executed.
A report dated 25 September 2001 was supplied to the defendant’s solicitors, Robbins Watson which stated in part –
‘It is very difficult to express with any accuracy an opinion in regard to someone’s mental state 9 months before without seeing him’.
How true, but I wonder what the defendant was trying to achieve at this point of time.
Joy Willis – Carer :
After Mr. Jowett’s release from hospital into my care, it became obvious that he needed a full time carer in his own home, which would also relieve myself and wife of some of the responsibilities of looking after him. As his unchallenged legal E.P.O.A., I placed an advertisement in the local paper, and Ms. Willis, one of the applicants applied, and was appointed.
In her testimony, Ms. Willis made the following observations of Mr. Jowett –
‘Mr. Jowett had small incidences of short term memory - loss’.
‘In the main, he was quite competent’.
‘He seemed quite lucid and clear’.
‘I never received instructions from the plaintiff, nor were visitors prevented seeing him’.
Ms. Willis also voluntarily executed a Statutory Declaration concerning Mr. Jowett’s condition, and in particular, circumstances surrounding the return of some papers and property taken from his house and delivered to Mr. Smyth, the defendant.
Defence Counsel queried incessantly, issues related to Mr. Jowett’s fence, none of which had anything to do with the deceased’s mental capacity on 1 December 1999, yet the Chief Justice allowed that line of questioning to continue without drawing Counsel’s attention to his opening statements that all he was interested in was the mental condition of Mr. Jowett as at 1 December 1999.
Dr. Ian Clarke -- the deceased’s personal doctor:
Dr. Clarke’s evidence appeared to vary after the death of Mr. Jowett, and after visits from the defendant’s firm. However, three things are clear –
These letters were crucial to the outcome of the trial, and totally support the evidence of Ms. Canning, who drew up the1 December 1999 will along with the E.P.O.A. The information contained above was later verified by way of Affidavit to the Registrar of the Supreme Court.
More Relevant Information - :
Following on a dental visit to the Palm Beach Dental Clinic on 25 February 2000, Dr. Dan Naido, a senior dentist, made this observation of Mr. Jowett after speaking with him about various options for his teeth and dentures –‘There was absolutely no doubt that Mr. Jowett fully understood all his treatment options’.
Acting in response to a letter I wrote to the Blue Nurses Association concerning the removal of papers and property by one of their staff members, nurse, Carole Crozier, from Mr. Jowett’s home, their solicitors, Deacons of Brisbane, responded on 9 July 2001 in the following terms –
‘Mr. Jowett made the request of our client that the documents should be delivered to his solicitor (the defendant) at a time when he was capable of formulating and understanding the nature of that request. Our client’s employee simply complied with that request’.
The response from Deacons suggests that Ms. Crozier fully believed and accepted that on the 16 December 1999 (just 15 days after the making of the contested will) Mr. Jowett was in full control of his actions, and not mentally incapacitated as the Court was led to believe.
Blue Nurse Carole Crozier - :
It is contended that Blue Nurse Carole Crozier’s testimony was totally self-serving and unreliable. This witness knew full well that if the E.P.O.A. and 1 December 1999 will were accepted as having been legally executed, she stood to be disinherited in the sum of $20,000, a fact she knew before the trial.
On p. 246 of the transcript of proceedings, Ms. Crozier indicated that from 1997, Mr. Jowett became ‘very forgetful – he couldn’t remember where he had been, and he was very vague’. She also stated that he said, ‘I can’t manage my home, I can’t pay my bills, and I can’t remember what I do’.
These comments support the earlier reported notes from the diary of’ ‘her friend Andrew’ the defendant, Mr. Smyth.
It also throws serious doubt on the Chief Justice’s ruling that the will of 15 December 1998 was binding because the testator supposedly had ‘full testamentary capacity’. Even the most inexperienced law clerk would have ruled against such a finding, considering the overwhelming evidence by Ms. Crozier and others, of Mr. Jowett’s partial memory loss prior to the making of the 15 December 1998 will.
On p. 276 of the transcript, Ms. Crozier informed the Court that Tom (Mr. Jowett) ‘was just totally lost from 15 November 1999 through to 8 December 1999’- a very convenient recollection on her part, considering the contested will was signed on 1 December 1999.
Ms. Crozier’s testimony was patently contradictory and evasive, a fact the Chief Justice apparently did not notice. As an example, in response to questioning, she admitted ‘Tom was not too bad on 2 December 1999’ just one day after he signed the contested will.
It is quite significant that the Chief Justice said on p. 277 of the transcript – ‘This is a farce the way it is going at the moment’.
In response to further questioning on the issue of the E.P.O.A., Ms. Crozier initially denied knowledge of the matters raised. On production of proof of evidence, her reply was changed from ‘no’ to ‘yes’, followed by the words ‘I forgot’.
This was typical of her approach to all matters that might influence the outcome of the trial, possibly because of the fear of losing her inheritance.
Ms. Crozier was later stood down by the Blue Nurses Association because of concerns I raised, and never worked for them again.
The Defendant, Mr. Smyth - :
Mention has already been made of Mr. Smyth’s involvement as Mr. Jowett’s solicitor in the 90’s. This is the same person who blatantly refused to return the documents taken from the deceased’s home at the time he was in hospital. He deliberately chose to ignore instructions from Whitehead Payne, solicitors, Mr. Jowett himself, and even from myself, who was Mr. Jowett’s uncontested E.P.O.A. at the time. The reason put forward was that he was of the opinion the deceased was of unsound mind, and lacked capacity at the time of executing the E.P.O.A.. In other words, Mr. Smyth assumed the role of an expert on matters relating to dementia and capacity, even though he had no professional training in such fields.
The Court did not question his statement.
Of further interest is the fact that the 15 December 1998 will had been drafted by the defendant on 25 August 1998, with no explanation given why it was necessary to draw it up some 4-5 months earlier prior to its signing.
His Honour on p. 235 of the transcript of proceedings made the following comment –
‘It seems highly unlikely that there’s going to be any suggestion that Mr. Jowett then lacked capacity’.
This statement by the Chief Justice totally ignored earlier argument by counsel when the following conversation occurred –
His Honour: ‘So there will be an issue – if you fail on the 1 December 1999 will, there will be a second issue then as to whether he (Mr. Jowett) had capacity on the earlier will’.
Mr. Conrick, for the plaintiff: ‘That is so Your Honour’.
His Honour: ‘Yes, what if he didn’t have capacity then either, what happens in that instance’?
Mr. Conrick: ‘That would be a matter for the executor of that will, who was also the executor of the previous nine wills, as to whether he would seek to propound any of them Your Honour’.
His Honour: ‘Any of them, all right, OK.’
Evidence at the hearing clearly demonstrated the possibility of the 15 December 1998 will, being placed in equal, if not more jeopardy, than the contested will of 1 December 1999.
The defendant agreed that nurse Crozier had alleged to him that I was taking funds from Mr. Jowett, and that she had suggested Mr. Jowett lacked capacity.
From the evidence presented, it appears that a level of conspiracy may have occurred between Ms. Crozier and the defendant, especially as both had something to gain provided the 1 December 1999 will was not upheld.
This appeared to be an issue totally ignored by the Chief Justice.
Even after the trial, Mr. Smyth threatened to take Court action against me for acting as a ‘de son tort’, an apparent act of intimidation because I had previously reported him to the Law Society for what I believed was unethical conduct. As eventual Executor to the 15 December 1998 will, he refused without justifying his reason, my claim for ‘out of pocket expenses’ and work performed to make the deceased’s life more comfortable and pleasant prior to his eventual death.
If my claim, which had been submitted and agreed as being legitimate by my personal solicitor, McDonald Chesters, had not been denied, I would have had sufficient funds to mount a challenge against the ruling of the Chief Justice, a fact Mr. Smyth would have been well aware, as he knew I was a pensioner.
At one stage His Honour queried the relevance of the defendant’s questioning of
The Adult Guardian’s representative as to the legality of the E.P.O.A. What the
Chief Justice failed to realise was the significance of its importance,
resulting from the fact that both the E.P.O.A. and the 1 December 1999 will, had
been executed on the same day. Also of importance, was the evidence that in
March 2002, The Adult Guardian wrote to the defendant to alleviate Mr. Smyth’s
fears about the legality of the E.P.O.A. The Adult Guardian wrote:
‘The Attorney was valid in that any problem associated with it was identified and fixed by the witnessing solicitor, and there was nothing in the Act to suggest otherwise, and they did not intend to take any issue with the formal validity of the Power’.
The Chief Justice put little credence on this statement, choosing to ignore it.
There is no doubt in the plaintiff’s mind that the defendant, although rubbishing the validity of the E.P.O.A., preferred not to challenge it in Court, because he knew that if proved to have been validly prepared and executed, the decision would rule out any chance he had of contesting the 1 December 1999 will, causing loss of income to his firm.
There is evidence in the transcript of proceedings, that suggests Mr. Smyth may have had some reservations about the earlier 15 December 1998 will eventually upheld by the Chief Justice.
Based on the Chief Justice’s opening remarks demanding proof of evidence as to Mr. Jowett’s mental capacity on the day of making and executing his final will, the relevancy of events occurring whilst Mr. Jowett was in hospital, should have held little, or no weight as to his condition on 1 December 1999.
There were approximately 389 pages of notes relating to Mr. Jowett’s condition whilst in hospital following his admission on 8 December 1999, and eventual release into my custody in early 2000.
Documents obtained under The Freedom of Information Act provided little light on Mr. Jowett’s condition that had not already been canvassed, suffice to say, he recognised me in the hospital’s corridor, and seemed pleased to see me upon my return from New Zealand.
The Chief Justice in his findings quoted from several cases relating specifically to wills, testators, and the conduct of those drawing up and witnessing the execution of a will. Many of these were quoted by Counsel for the defendant during his closing address.
Reference is made to just a few of the cases mentioned, and the Item No. and Page No. is shown for easy identification. The fact that they were referred to only in the closing address by Counsel, made it impossible to argue the points raised, but each case was different, and not necessarily applicable to the events or evidence as provided in the case ‘Smyth v Whiteside.
Item 15 p. 4
Williams Mortimer and Sunnucks: Executors Administrators and Probate(18th.
‘It must be important for a solicitor instructed to draft a will to make enquiries about earlier wills, their content, and the reason for revoking earlier wills’.
The deceased in this case had made 10 wills plus a codicil, all drafted by the defendant, Mr. Smyth, over a period of three years from October 1995 to December 1998.
It would be unrealistic to suggest that each time a new will was prepared, Mr. Smyth should have carried out the procedure as recommended in the above case, more especially, as it would have annoyed the deceased to the extent he would have changed his solicitor, which he later did.
Mr. McCracken raised most of the issues referred to, and in evidence, commented as previously advised.
‘Mr. Jowett said he had made an earlier will and I said I would like to have a look at it. He told me not to bother about the other will - he wasn’t happy about certain things. He did not suffer fools gladly’.
Ms. Canning, the solicitor who made the ultimate will, states no further issue was made about his capacity because ‘he seemed perfectly lucid to me’.
Whilst not asking to peruse earlier wills, Ms. Canning stated ‘he was aware of what he was doing, and quite adamant about what he wanted. He was quite happy about the document and fully understood it’.
The Chief Justice chose to ignore the testimony of the only person on the day Mr. Jowett made his last will. Ms. Canning, for her part, was able to form an opinion as to whether or not the deceased was capable of knowing what he was doing. The position taken by the Chief Justice was in direct conflict with his initial requirement of proof of evidence that Mr. Jowett was of sound mind on 1 December 1999, a fact that apparently escaped him in deciding for the earlier will.
Item 20 p. 5
‘Hardingham, Neave and Ford : The Law of Wills 1977 p.50
‘A solicitor should never assume that a testator is perfectly sound in mind, memory, and understanding – in taking instructions from an enfeebled testator, a solicitor should take note of them – the will should be read over to the testator as no reliability should be placed on an enfeebled testator to read and understand a legal document.
The Oxford Thesaurus dictionary describes feeble in relation to an old man as being weak, frail, infirm, delicate and slight – not it should be noted, a person supposedly, suffering from dementia. As the plaintiff in the case, I had already conveyed to Ms. Canning the fact Mr. Jowett was frail and infirm, but went further by adding that Mr. Jowett was also elderly, and hence my involvement in transporting him to the solicitor’s office.
In relation to the above mentioned case law quotation, Ms. Canning advised the Court that ‘ It is my normal practice when doing a will, to paraphrase what was in the will, and to make sure that the testator understood what was involved’.
If the Chief Justice had doubts as he suggested, then surely he would have had greater doubts as to the reliability of the 10 prior wills drawn up by the defendant, especially bearing in mind the history of operations and mental uncertainty of Mr. Jowett, as disclosed in the defendant’s own diary.
Regardless of this, the Chief Justice declared for the force and validity of the 15 December 1998 will as against the 1 December 1999 will, knowing from the evidence produced, that Mr. Jowett had had prior strokes and multi-infarct dementia since 1996.
Item 32 p.7
‘Easter v Griffith – Supreme Court of N.S.W. Court of Appeal – June 7 1995’
‘Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the Court – the power of freely to dispose of one’s assets is an important right and a determination that a person lacked (or is not shown to have possessed) a sound disposing mind, memory, and understanding ‘is a grave matter’.
In this case, Counsel for the plaintiff advised the Chief Justice that the defendant accepted ‘that the plaintiff had reserved the question of arguing that, by Statute, the burden of proof at the end of the day, would fall to him, the defendant, rather than to the plaintiff’.
His Honour: ‘Well, what am I to do ?’. Are you (Mr. Conrick for the plaintiff) going to prove that at the time of executing this will on 1 December 1999 that the deceased had testamentary capacity’?
Mr. Conrick: ‘Your Honour, I ------
His Honour: ‘Look, one way or the other’?
Mr. Conrick: ------ ‘My argument is, and I don’t concede I have to prove that –-‘
After this discussion, it was left, but not acknowledged, that the burden of proof of testamentary capacity would rest upon the plaintiff.
The observance by the Judge in the Easter v Griffith case, suggests that a determination as to capacity was a ‘grave matter’. Bearing in mind the circumstances related thus far, The Chief Justice in his summation and eventual findings, failed to consider that not only testamentary capacity was a ‘grave matter’, but that his final ruling based on all the evidence from the more creditable witnesses, was also a ‘grave matter’. It is quite evident from the fore-going, that much of the evidence given for the plaintiff, was always going to be overshadowed by that of the defendant’s witnesses, even though much of it had nothing to do with the mental capacity of Mr. Jowett at the time of making his last will.
It is an important principle of law, that not only should justice be done, but is seen to be done. It is respectively suggested that this did not occur in the case of Smyth v Whiteside, Case No. 7493 of 2002.
The Hon. Paul de Jersey as the presiding judge, was at times impatient with both Counsel and witnesses, and on his own admission that he had not been involved in a civil case or heard a will case for some time, should have stepped down from the case, and allowed a more experienced magistrate to conduct the hearing.
The plaintiff relied very heavily upon the advice and expertise of his solicitor and Counsel, and in retrospect, it is quite evident that in some areas they also may well have overlooked vital information crucial to the outcome of the case. This could conceivably have acted against the plaintiff, but the end result based on the evidence submitted, suggests a miscarriage of justice occurred as a result of the Chief Justice’s handling of the case. Of crucial importance, is the fact he completely ignored his opening statement that the outcome of the hearing would rest solely upon the proof or otherwise, of the mental capacity of the deceased at the time of making his last will.
Vital evidence from the deceased’s own doctor, and most of the plaintiff’s witnesses was overlooked, as was the questionable evidence given by the Blue Nurse, Carole Crozier who ended up with $20,000 and possibly more as she was also known as Carole Jung.
The real winner was of course Andrew Smyth of the firm Robbins Watson, who between them netted the proceeds of over $5,000 plus for drawing up so many wills, probably $50,000 for legal fees in relation to his challenge to obtain probate, plus a further sum for acting as Tom Jowett’s Executor.
Then of course there is the additional unexplained issue of $25,500 in cash cheques, prepared and paid to undisclosed recipients between August 20 1997, and July 14 1998, at a time according to Mr. Smyth’s personal notes, that Mr. Jowett ‘had it in his head’, but found it difficult to convey his wishes to Smyth. This is the same person who challenged the E.P.O.A.(which had already been accepted by the numerous authorities already named) yet failed to challenge its legality in the Courts.
Smyth also arrogantly, with no Power of Attorney, continued to maintain he was Mr. Jowett’s lawyer, yet did nothing to handle the funeral arrangements upon his death.
Smyth left everything to me (the plaintiff) to handle the release of his body from hospital, arrange for the cremation, the funeral service, the obtaining of a burial plot, the plaque, and eventual burial. Furthermore, whilst scheming to get his hands on the estate, to ensure more revenue went into his firm’s pocket, he graciously allowed me to wind up Mr. Jowett’s British Pension Fund account, look after the property maintenance, and see to Council rate payments for two years.
It was impugned I interfered with the estate, and subsequent threats of litigation followed. As the eventual Executor to the 15 December1998 will, and knowing I was a pensioner, Smyth refused to accept a legitimate creditor’s claim amounting to $31,954 for work performed, and expenses incurred in looking after Mr. Jowett. He advised of his intention to seek an order from the Court barring me from making a claim against the estate, knowing full well I did not have the financial capacity to challenge this despicable act.
Laws are made by men who because they have graced the halls of academia, are seen to be filled with both wisdom and foresight, and therefore have earned the right to be arbiters. Recent history can testify to the fact these same people are prone to set themselves on a pedestal, and are culpable when it comes to making decisions that wrongfully affect the lives of the very people they are there to serve.
These men to whom society look up to, are eulogised by the press, television, and the long history of tradition, but they are in reality a protected species, who mostly look after themselves first, and their clients second, as occurred in the Smyth v Whiteside case.
It is interesting to note that the Federal Government is looking to establish a National Commission to investigate complaints against both State and Federal judges and magistrates. It is somewhat ironic that in Queensland, once a judge or magistrate are appointed, they are there for life, unless of course they commit a criminal act.
Of even more interest, is that you, as the top legal person in the State, and despite the controversy caused by several high-profile judges and magistrates over recent years, reportedly made light of the situation by declaring only a lukewarm response to the suggestion.
One could go on `ad infinitum’ about the miscarriages of justice and the get rich mentality of the legal profession, but of equal interest is the reported statement of a former ex-court reporter for the Justice Department, who recently told the press ‘I have listened for nine years to the absolute bulls… submitted by younger people …and their lawyers’.
Mr. Shine, this is an impassioned plea for you to acknowledge that even from the Chief Justice, down to the solicitor, barrister, or lawyer taking his first case, the law does get it wrong.
Something has to be done about it, although it is too late in my case.
I was just a humble pensioner who decided with the aid of my wife, to try and make life easier and more pleasant for an ailing old war veteran, who wished to repay me for our kindness by making me his sole beneficiary.
Enter the legal eagles, and all hell broke loose to take advantage of a situation, and milk the coffers of an old man for as much money as their peers would allow.
I ask only one thing of you as the States Attorney General, please look into this case with an open mind, for the benefit of all people, who in future years may be confronted with the same dilemma I faced, that of being a puppet in the hands of a group of barristers, and an unsympathetic Chief Magistrate who got it horribly wrong.
This matter has caused me a great deal of stress over the years, and hence my decision to write to you in order to find out just how far your Department is prepared to go, to ensure such miscarriages of justice like mine, do not occur again.
Bruce Rugby Whiteside
Four Corners (Chris Masters)
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