Chapter 12.  The Case for the Plaintiff

 

 Procedures in the court room and the terminologies used by counsel are important, as is the transcript itself, as there can then be no argument concerning questioning and the cross examination of witnesses.

For the presiding Judge to correctly find either for the plaintiff, or the defendant, Tom’s medical condition had to be established at the date of signing the 1 December 1999 will – not what his condition was some months or years down the track. Justice de Jersey supported this position, as he reportedly said, ‘Really, it’s just a matter of looking precisely at his medical condition on 1 December 1999’.

 After the initial formalities, introductions, and argument concerning to whom the burden of proof would fall, there were many interesting factors that emerged during the course of the trial. It became patently clear that Justice de Jersey was not interested in how many wills were made prior to 1 December 1999, yet the question was asked by His Honor, ‘Is it agreed that if he (Tom) wasn’t then of sound testamentary capacity, then the will of 15 December 1998 should be admitted to probate’?

Conrick was quick to respond that was not the situation, and that if it was proven Tom did not have capacity on 1 December 1999, there would be a question for the court, whether the will for which the defendant contended, was established. His Honor must have had some doubt as to what procedure he should adopt if capacity was not proven, as he then questioned Conrick as to ‘What would happen if that were the case’?

 It may be of interest here to reflect upon the fact that any one of the previous eleven wills might then be the subject of the need of proof that the testator showed no signs of cognitive impairment at the time of making them, and was of sound mind at the time.

 Considering the importance of the case, one would have expected that all legal representation, and the amount of groundwork and research that had taken place prior to the trial, would be of the highest standard, but this was not to be the case, as evidenced by extracts taken directly from the transcript. Some of the rhetoric dispensed by those involved left a lot to be desired as they were way off the mark at times.

 Mr. Clarke for example, in respect to the production of documents; referred to Johnsons solicitors as the former solicitor of Whiteside. That was an incorrect statement, as Johnsons were never appointed as Whiteside’s solicitor.

 His Honor early on in the opening address asked the question of Conrick, ‘Is he (Whiteside) the executive of the will’?  It is possible he meant ‘executor’ not ‘executive’ as appeared in the transcript. Throughout the hearing which was to last four days, comments were often made which indicated that these highly paid barristers and the Judge seemed to lack concentration at times. Because of the extensive length of documentary evidence, not all errors of counsel will be quoted, but an examination of File No. 7493 of 2002 would indicate the concerns later expressed by the plaintiff. There were other considerations.

 When Mr. Conrick indicated that he ‘might struggle for a witness late in the afternoon’. Justice de Jersey replied ‘What do you mean late? I have a commitment at five’ which the plaintiff took as a reprimand to his barrister, and an indication the Judge had other things on his mind. He then requested of counsel that ‘No unnecessary witnesses’ were wanted, thus confirming the time frame in which he wanted the case to finish. This raises the question as to whether most trials produce too many unnecessary witnesses in the eyes of the judiciary, but for any trial to be fair and just, all witnesses should be heard.

 Whiteside’s Testimony

 The case was opened by Conrick on 27 October 2003 with the following comment – ‘Your Honor, the plaintiff will call Mr. Whiteside’ (Mr. Whiteside was the plaintiff) – sorry, the plaintiff himself, Mr. Bruce Whiteside will give evidence’ - Not a very good start.

 He continued his opening statement with the following words ‘In 1996 through 1997 the deceased recalls taking Mr. Jowett (it is obvious Conrick meant the plaintiff, and not the deceased) to Mr. Jowett’s solicitor’.

On the return trip Mr. Jowett told Mr. Whiteside ‘That he had left Iris, that is Mr. Jowett’s wife, and himself $20,000, and that Mr. Jowett re-acted to that crossly’. (obviously  Conrick meant Mr. Whiteside, as Mr. Jowett’s wife was already deceased, and Mr. Jowett would not be leaving money to himself) This session proceeded in the same way it had started, with many mistakes of persons names in the opening address.

 Just a few comments later, Conrick referred to ‘Mr. Jowett taking Mr. – sorry, Mr. Whiteside taking Mr. Jowett into his room where, that is, Mr. Jowett’s room’. As the trial progresses, the transcript records numerous problems by counsel in naming the correct parties involved in particular incidents, and although Whiteside himself was vague at times with his answers, he was never-the-less alert enough to correct his peers on several occasions.

The examination and cross examination of Whiteside was riddled with erroneous submissions put to him, and raised doubts in his mind as to where the trial was heading.

 Even His Honor, Justice de Jersey continued to have problems as evidenced by the number of times he sought advice from counsel. On one occasion after admitting he had ‘Not done a civil trial for a long time’, he questioned whether he was supposed to have pleadings.

 But Whiteside’s barrister in particular continued to be troubled with names. When referring to a visit to solicitor McCracken he stated

‘Mr. Jowett then went to – sorry, Mr. Whiteside took Mr. Jowett to Mr. McCracken’ and just a few sentences later, again seemed somewhat perplexed over who was doing what when he said ‘It transpired that Mr. Jowett has not kept his appointment with Mr. Whiteside to execute –sorry, Mr. McCracken’- Later, when still addressing the Bench about a witness to be called, he said ‘She says that Mr. Whiteside – sorry, Mr. Jowett’.

 This extraordinary uncertainty continued, with yet another mix-up with names when answering a question put by de Jersey. In answer to the question ‘To whom’ Conrick’s response was ‘I’m sorry, Your Honor, that she expressed – sorry, he expressed’.

When further questioned as to whether other witnesses would be called, Conrick replied ‘Your Honor, it may be that the plaintiff – I’m sorry Your Honor, there will be a statement from a dentist’.

 On the stand, the apologetic nature of Whiteside’s barrister continued. In addressing Whiteside personally, he said ‘Did the Jarrett’s move at some stage. Sorry, yes did etc.’. It followed that even the witness Whiteside got caught up in this ‘sorry’ terminology, as he too was ‘sorry’ on occasions. This did not help him as he constantly moved away from the question, by introducing issues not directly related to the question.

 It appeared at times that Justice de Jersey became somewhat irritated, and intervened in the questioning, to direct Whiteside to just answer the question, which often needed a simple ‘Yes’ or ‘No’ response. In fact, on a few occasions de Jersey had to be forthright in directing Whiteside to answer one way or the other, without departing from the question put. At one point he intervened with the words ‘No, you must answer the questions’.

 Some latitude had already been given, as witnesses like Whiteside are not trained in the legal aspects of courtroom procedures which can become somewhat intimidating.

 In any trial, it is not unusual for counsel to interject during the questioning of witnesses, and this case was no different from others. When asked by his own counsel if he (Whiteside) had formed a view as to the mental capacity of Tom, Mr. Clarke acting for the defendant was quick to object to the question on the grounds that Whiteside ‘Had not been shown to be qualified to express such an opinion’. This objection was rightly upheld by the Judge, yet he was later to rule in favour of the defendant and the will of 15 December 1998, without any proof that Smyth was ‘qualified to express an opinion as to Tom’s mental capacity at that time’.

 His Honor interjected early in the examination to request that Conrick ask the witness ‘Why don’t you ask him when that was’? Conrick responded by doing just that when he enquired of Whiteside, ‘When was that’?

 It seemed an unusual direction of a Judge, as in similar instances, it has been noted that he or she would normally ask the question directly from the Bench, rather than seek an answer through counsel.

 The ongoing saga between His Honor and Conrick continued when His Honor reminded Conrick that ‘You didn’t produce the piece of paper that he faxed to the office’ to which Conrick replied, ‘Your Honor, I’m sorry, I should have read the affidavit of scripts’.

In response to this statement, His Honor said. ‘No, I’m not accepting that, you tender documents from that that is relevant. You’re not going to tender a whole bundle of affidavits’.

Incidents such as these occurred regularly, and give added weight to the only conclusion that can be drawn, i.e. that the case was not one that would give confidence to any plaintiff in a similar situation.

 In cross-examining Whiteside, Clarke, (acting for the defendant) asked him about Tom’s lucidity when both he and Whiteside were conversing in 1999. What is strange about this question is that it called for an answer that Whiteside was ‘not qualified to give’, yet on this occasion no objection was raised, and the question was allowed by the Judge.

 A great number of questions and answers followed relating to a taped conversation between Whiteside and Jowett following Tom’s release from hospital into the care of Whiteside.

Reference was also made as to why Whiteside kept a diary about Tom, and in reply he suggested that while Tom was in his care, he felt it was the responsible thing to do as it might help carers to monitor Tom.

 On many occasions during the cross-examination, Whiteside became somewhat rattled at the number of questions that flowed, to the extent that at one stage he himself asked questions of the questioner. It became obvious as the interrogation progressed, that he like other witnesses was unable to recall certain events that had occurred some four years earlier. At one stage Whiteside stated that he was ‘confused being in hear just listening to this’.  This was to be expected of a person who had done so much for Tom, and who now felt the world was against him. The might of Smyth was now beginning to take its toll.

 At the same time, Clarke himself became somewhat lost, as he addressed Whiteside as Mr. Whitehead, and this was to occur over and over again with other parties in the trial.

Clever and astute questioning by Clarke as to a conversation between Whiteside and Tom which took place on 14 January 2000, had Whiteside a little bewildered, as the indications at that time were that Tom’s memory recall was failing him.

 However, it must be remembered that Justice de Jersey had repeatedly emphasized in his opening summation, that all he was interested in was whether Tom on the day of signing his will of 1 December 1999, was capable of knowing what he was doing.

This being the case, he would have had to place little reliance on evidence that occurred some six weeks later after a period of hospitalization, and concern by Tom that he might be placed in a hostel situation.

 A lot was said about Tom’s short term memory loss, and that had always been conceded, but three issues appear to have escaped the memory of those charged with the responsibility of seeing that justice was done.

 The first related to Tom’s uncertainty (at the time he was making one of his many wills with Smyth) as to whom he wanted to benefit from his estate after his demise, and this fact resulted in Smyth reporting in his notes that ‘I think Tom knows what he is doing – he is indecisive and impetuous’. By using the expression ‘I think’, it is obvious Smyth was uncertain as to whether Tom did actually know what he was doing.

 The second issue which throws some doubt on most of the wills prepared by Smyth is the cause of death as disclosed on the Death Certificate. This clearly stated that Tom died of a combination of bronchopneumonia, multi - infarct dementia and previous strokes, and that the existence of multi - infarct dementia had been in existence for five years dating back to 1996.

 The third point of interest is the statement made by Tom’s own doctor in mid November 1999. Dr. Clark was made aware of Tom’s intentions to make out a new will and an E.P.O.A., yet did not discourage it, probably because he knew Tom had intervals of lucidity when he was quite capable of understanding what he was doing.

 Mr. Clarke on Page 58 of the Transcript seems to have suddenly lost track of the name of the witness when addressing Whiteside as Mr. Jowett, the name of the deceased. On the second occasion he does this, it is interesting to note Whiteside seems frustrated as he reminds Clarke his name is Whiteside and not Jowett. On Page 59 Clarke for the third time, addresses Whiteside as Mr. Jowett, but this time soon realizes his mistake by correcting his error with the words ‘Mr. Jowett – Mr. Whiteside, my apologies Mr. Whiteside’.

 It seems both counsel for the defendant and the plaintiff also had difficulty in calculating that the days of Monday through to Friday in each week added up to five days, as both agreed it was four days. Clarke later goes on to belittle Whiteside for mixing up the years of December 1999 and 1998, but then in his very next question makes a similar mistake as evidenced by his own statement ‘We’re talking about a conversation that took part in January –sorry, in January 2000, aren’t we’?

 Note : Readers should remember that we are talking about highly trained, highly paid, and experienced barristers.

 Such was the mode of questioning by Clarke that Whiteside in his defense went on the attack by repudiating Clarke’s assumptions, prompting Clarke to say ‘I’m not suggesting that you did anything – sorry, I will withdraw that’.

Later he attempted to influence Whiteside by indicating that he (Whiteside) was suggesting Tom was medically neglected by Dr. Clark, but he was equal to the task by answering the question in the following terms –‘Why is it that professional people are so sacrosanct from criticism’. Clarke then referred to the eulogy and again addressed Whiteside by the name Jowett, prompting Whiteside to say- ‘Please, I’m not Mr. Jowett’.

 Hour after hour Clarke pressurized Whiteside to the point he felt everyone in the courthouse was against him because he had befriended an elderly gentleman, and taken him into his own home to look after him after his release from hospital.

 Whether Whiteside was naïve, or tired of constant leading questions put to him with a view to trapping him into disclosure, is open to question, but in answer to a question put by Clarke ‘Did you know what the word will meant’? Whiteside was quick to respond ‘It means something that you know, keeps lawyers in business’. Not quite the answer expected, but a statement never-the-less that Whiteside firmly believed.

 The cross examination of Whiteside on the first day of the trial was discontinued until the following morning, to allow the interposing of a witness for the plaintiff, Ms. Evans, who was a manager of a hostel for the elderly. The Judge agreed to stand down Whiteside at that point of time so that the evidence of Ms. Evans could be heard.

  The new witness in giving her testimony, told how she had known Tom since late 1996, and early 1997, and in particular recalled Tom talking about his will (as he had previously done on earlier occasions) and indicated he was not happy about it because the solicitor (the defendant, Smyth) was in charge of all the money (Tom’s money). Ms. Evans further implied Tom was concerned that ‘the solicitor had put it so that he got the money and who knows where it will go’.

 This conversation apparently occurred prior to the 1 December 1999 will, and prior to the Whiteside’s trip to New Zealand soon after, otherwise Tom would not have made the claim that ‘the solicitor was in charge of all the money’

 The second day of the trial set down for commencement at 10.00a.m., failed to go according to plan, as the witness (Whiteside) was late, and the court accordingly adjourned at 10.03a.m. It re-opened one minute later at 10.04a.m. The transcript reveals that His Honor was annoyed about the non appearance of Whiteside who arrived at the court four minutes late. He commented - ‘Maybe he’s surrendered, maybe he’s given up’. 

Before retiring at 10.03a.m., de Jersey also said ‘I’ll sit here and if the case isn’t ready to go in five minutes, I’ll dismiss the claim for want of prosecution. I’m not serious (so why did he make the statement) but really it’s pretty unsatisfactory’.

 When finally Whiteside entered the witness box some four minutes late, he apologized to the Judge who responded by saying ‘No, I’m not interested, just be here on time. This is a court of law, not a picnic’. Whiteside believed this to be a rather pompous attitude to adopt, as there could have been extenuating circumstances for being a few minutes late, but the opportunity to explain was never provided, thus re-enforcing his view that courtroom procedures could be a farce.

 It is interesting to note that Justice de Jersey himself was late for the afternoon session on the third day, and apologized to the court for his late arrival – his explanation – ‘the lift wasn’t working’. Whiteside considered there was one law for the Judge and another for the witness. He felt urged to say to de Jersey, ‘No, I’m not interested, just be here on time. This is a court of law, not a picnic’. Fortunately he refrained from commenting as he may have been held in contempt of court.

 Whiteside at times appeared to have a memory loss over certain issues, but this was not uncommon throughout the trial, as evidenced by the fact that the defendant’s witnesses were equally guilty of the same loss of memory.

In fact even the barristers had loss of memory, as early on the second day of the trial Clarke again addressed Whiteside as Mr. Jowett. This prompted another response by Whiteside with the words ‘I wish you would get my name right’.

 Typical of any examination of a witness is for counsel to unsettle the person questioned by implying certain things in order to create doubt, but Whiteside seemed up to the challenge on one occasion by answering ‘I did not say that. Don’t put words in my mouth please’.

In asking the witness whether Tom needed full time care towards the end of 1999, Clarke was in fact asking a question that he knew Whiteside could not answer objectively, because he was not professionally qualified to make such an observation, but the question was allowed once again with no objection from either the plaintiff’s barrister, or the Judge.

 At this stage it was a real battle between the highly qualified and court experienced Clarke, and Whiteside the former painter and paperhanger, and the odds were heavily in favor of the former, whose ability to turn the tables on Whiteside was gaining momentum.

 Much could now be said about the cross-examination at the time of Tom’s hospitalization period, but most of this had nothing to do with what Justice de Jersey clearly outlined in the lead up to the hearing, i.e. ‘Did Tom Jowett have capacity on 1 December 1999’ ?

 Clarke continued however to pursue his line of questioning on matters not related to that date, but rather as to the Whiteside’s ability to care for Tom in their own home. In fact he virtually blamed Whiteside for Tom’s return to hospital (after some three months of caring for him), by implying that his care (or ‘experiment’ as he called it) resulted in Tom ‘Breaking down in disastrous or very serious circumstances for him’. The implication was clear. He was implying that the hospital staff, ACAT, and other support groups had badly misjudged the condition of Tom, and erred in releasing him into the Whiteside’s care.

 Barristers have a way of cutting in on a witness’s response to questions put, and Clarke was no exception, as he repeatedly interjected with a further question before Whiteside had finished answering the previous question. Whilst unsettling to the witness, it is a ploy often used in court as way of mental intimidation.

 Questions continued to flow, but most were totally irrelevant to the mental condition of Tom as at 1 December 1999, because the subject matter related primarily to events many months after the date of signing of the will. It is one thing to prove that a person may act irrationally at any given time, but another to conclude that if such were the case, the condition must then have been in existence at some prior date.

 Whiteside seemed unable to come to grips with the constant barrage of questions which Clarke directed at him. Questions began to flow about extracts taken from a diary Whiteside had kept concerning his discussions with Tom. Both the diary and tapes that Whiteside used to record discussions he had were used in such a way as to question Whiteside’s motives long after the event of re-establishing contact with Tom, and the eventual signing of his last will.

 In retrospect, Whiteside probably regretted he ever recorded these discussions, but he had no qualms about ensuring they were made available to the defendant’s team of lawyers. Whilst not directly related to Tom’s mental capacity in December 1999, the very use of the contents extended the trial period considerably.

  McCracken’s Testimony (solicitor)

 At the end of Whiteside’s testimony and cross-examination, he was stood down, and Conrick called his next witness Mr. McCracken, a solicitor who had been contacted by Whiteside on the 17 November 1999 in order to draw up a final will for Mr. Jowett as per his written instructions.  When making the appointment, Whiteside explained to Mr. McCracken’s wife that ‘Mr. Jowett was an elderly person, and care might need to be taken with regard to his mental capacity’.

 These seemed hardly the words of a person wishing to take advantage of Tom’s wish to leave all of his estate to him.

 Because of his frailty, Whiteside drove Tom to McCracken’s office, but at no stage entered the office whilst he was being interviewed. McCracken confirmed that he had acted professionally in every way, and explained that he was interested only in what Tom wanted to say, and not what everyone else wanted to tell him to say. The only issue that Tom objected to was providing McCracken with a copy of his previous will.

 During conversation the subject of a Power of Attorney was raised, and it was agreed that one should be prepared with both McCracken and Whiteside to act as Tom’s Attorneys. His Honor questioned whether the EPOA was a Form 2, which covered both finance and health matters, and McCracken confirmed this to be the case.

 This meeting took place eight days before Tom Jowett was to return and sign it on 25 November 1999 (an appointment Tom failed to keep due to the fact that he claimed he had not been informed of the appointment, and that he had a solicitor in any case, and did not need another). When contacted again by Whiteside for Tom to come in to McCracken’s office to sign on 1 December 1999, McCracken advised he was unavailable due to other commitments. Negotiations with Tom ceased at this point of time.

 Of interest are the observations and comments of McCracken, and enquiries he made to check the mental capacity of Tom prior to his decision to go ahead with the will. McCracken contacted Tom’s personal physician to ascertain his opinion of Tom’s capabilities to understand the ramifications of making the will. This conversation took place just seven days prior to the will of 1 December 1999, the subject of the court case.

 The question put to the physician, Dr. Clark, was ‘Did he in his opinion think Tom would have the mental capacity to understand what he was doing with regard to the making of a will’.

Dr. Clark responded by saying ‘He had no reservations about Mr. Jowett’s capacity to understand the will he would be asked to sign, and although Tom had some lapses, he was quite good most of the time’. Based on this conversation, an appointment was made for Tom to sign the next day, an appointment that was never kept.

 Comments made by McCracken about Tom, in response to questions raised by Conrick included the following -

 . He seemed to be quite alert, and with it

 . I encountered nothing throughout the interview which led me to conclude that he was    there other than to tell me what he wanted

   . He indicated to me he wished to leave the whole of his estate to Whiteside

 . I tried to form a conclusion about him – he seemed quite logical

 . He had a keen sense of humor, and some of his jokes seemed to be jokes from not

  a person with a dull mind

 . He came across to me as a person who expected people to do as he told them

 . His general physical appearance was OK, and I was looking for something which didn’t add up, but he had a normal look in his eyes

   . He would be welcome in my house anytime

 . He seemed to have a pretty darn good memory of what was happening

 In response to a further question put by counsel as to whether he had any concerns about Tom’s testamentary capacity, Mr. McCracken replied, ‘No. No, I wouldn’t say that I had any concern about his capacity on the day I saw him, no, I had no problem with him. I would have been quite prepared to do a will and lost no sleep over it whatsoever.’

 In cross examination of the witness, Clarke tried to depreciate the evidence given by McCracken by implying that his independent recollection (that is, without his notes) was naturally limited. McCracken was quick to respond, ‘I’m not sure what you mean by the word limited, I have a very clear recollection of what happened’.  

 Clarke then proceeded to suggest that there was a certain amount of surmise on the part of McCracken, thus forcing him to defend himself by illustrating how in life, conclusions are reached on events that happen at the time. He confirmed that he had both clear impressions and recollections of the events that took place in his office with Tom, yet Clarke continued to pursue this line of questioning.

 In fact it got worse as he referred to McCracken’s evidence-in-chief, and continued to push and probe to establish who it was that suggested Mr. Jowett should make an EPOA. Upon objection, Clarke said, ‘Well, in any event Your Honor, it’s obviously a non issue’. Any law graduate can learn from such lines of questioning, as if it was a ‘non issue’ it should never have been raised in the first place.

 This episode was totally irrelevant to the main purpose of the trial which was to establish Tom’s capacity on 1 December 1999. It is a fact that McCracken was not on trial, he was a solicitor, he was doing his job, yet here was an accomplished barrister seeking to question him on every statement he made, causing him at times to repeat over and over again what he had already established as truth under Oath. At one stage McCracken was forced to say ‘Do you want me to finish the answer’?

 Clarke next tried to establish that McCracken may have been unsure as to what he had been told about Tom’s memory prior to interviewing him, regardless of the fact this had already been stated. He did this by wrongly inferring that Whiteside may only have indicated that ‘Tom was an elderly gentleman who had moments when his memory was not too good’. This was not the case, but Clarke pursued the issue any-rate, and was not able to shake the inescapable fact that what Whiteside actually said was, ‘care may need to be taken in regard to Tom’s mental capacity’.  

 This line of questioning seemed a complete waste of the court’s time, but it supports well known claims about lawyers that time means money. At this stage of the trial time was not of the essence to Whiteside, as he now had an agreement with both his solicitor and barrister that he would be under no obligation to pay them their fees should the case be lost.

 Clarke unknowingly it seems, moved on to the fact that Tom was unable to instruct McCracken as to who would benefit for the alternative gift if the primary gift failed. The reason given was that ‘Tom wanted to think about it’.

 Earlier, reference was made to the fact that in the many wills made for Tom by Smyth over a short space of time, on several occasions Tom directly allocated less than 50% of his estate to named beneficiaries, advising Smyth ‘He wanted to think about what he wanted to do’ with the residue. This matter appears not to have come out in court, but the situation at the time Smyth was representing Tom was far more questionable, than when Clarke was trying to prove Tom unable to decide what would happen if Whiteside predeceased him.

 Again Clarke changes track by directing McCracken to answer matters relating to the disposal of Tom’s ashes and those of his late wife, but nothing came of it.

 To an untrained observer, if there were to be a vote of who came out on top in the discourse between Clarke and McCracken, it is likely McCracken would have won by a considerable margin, as Clarke produced no damming evidence in his cross-examination that would discredit McCracken’s evidence, nor did he prove beyond any reasonable doubt that at the time of making Tom’s will, Tom lacked capacity. On the other hand, McCracken’s evidence only confirmed his opinion that on the day of their meeting, Tom appeared fully aware of his intentions, and what he was doing.

 

 Debra Canning’s Testimony (solicitor)

 The next witness called was Debra Canning, a principal in the law firm, Canning Kramer Lawyers, and former employee of the firm Whitehead Payne Lawyers, the firm at which she was employed at the time of making the 1 December 1999 will. Ms. Canning like other witnesses before her was somewhat vague at times in recalling details concerning her instructions to prepare both a will and EPOA for Tom.

 In response to questioning, she confirmed that she had prepared documents for Tom to sign on 1 December 1999 following a telephone conversation with the plaintiff, who advised he had an elderly slightly incapacitated friend who needed a will to be made. Canning claimed that she would have required the instructions in writing, which she later received.

Her secretary had taken the completed will out to Mr. Jowett for him to read while he was waiting. The Whitesides who arranged transport to Canning’s office were in attendance, and at the insistence of Tom remained in Canning’s office. They sat on a couch at the rear.

 Conrick questioned Canning on Tom’s understanding of the EPOA and the will, and in response, she indicated she had paraphrased the contents of the documents to make sure he understood. Mr. Jowett responded with the words ‘Yes that’s right, that’s what I want’. She confirmed he was very clear, and commented that Whiteside ‘Was the best friend I ever had, and was like a son to him’.

 When asked whether she had in mind the question of testamentary capacity, Canning responded ‘No, because he seemed perfectly lucid to me, very aware of what he was doing, quite adamant about what he wanted, was quite happy with the documents, and fully understood them’.

 The real test as to Canning’s evidence would now come under closer scrutiny by Clarke, as he began his cross-examination of the witness. However, the main issue raised by him concerned Canning’s experience in preparing wills. Not one question was raised by Clarke about Tom’s perceived mental capacity.

 Philip Whitehead of Whitehead Payne Lawyers was next witness for the plaintiff, but neither counsel raised issues that had any real bearing on the case. Mr. Whitehead was not only a lawyer but also a Director of the Galleon Harbor Retirement and Leisure Resort. He knew Dr. Clark, had dealings with Smyth, and had communicated with Mr. Jowett.

 Whitehead advised the Court that Tom wanted his own personal papers that had come into the possession of Smyth returned. Smyth refused to pass them over due to his firm belief Tom lacked capacity at the time of the request. This was the dominant position Smyth took on the two occasions he was approached to return those papers.

 Dr. Ian Clark’s Testimony (Tom’s personal doctor)

 By arrangement with counsel for the defendant, Conrick organized that Dr. Clark interpose on other witnesses at this stage. Dr. Clark was the general practitioner of Mr. Jowett from late 1987 until early 2000, just a few months after Tom had executed the contested will.

He informed the Bench that ever since he had known Tom from 1987 on, he (Tom) had exhibited memory impairment that over the course of years turned into confusional episodes of behavior.

 Smyth must have known this, as by discovery it was noted he had expressed on many occasions that Tom was vague and uncertain concerning many of the wills he had prepared for him, (see earlier) yet there is no record of Smyth having made enquiries from Dr. Clark about his general health and recall at the time of making those wills.

 Dr. Clark advised of Tom having come to his office on 30 November 1999, somewhat lost, in general poor condition, emaciated, unshaven, and smoking. He had complained of a pain on the left side of his chest. Further evidence concerning Tom’s condition around this period was to follow. His Honor interjected to enquire again whether he would have to determine the issue of the 1998 will if the 1999 one was not admitted to probate. He also seemed concerned as to when the case would conclude by asking the question –‘When will we finish this case do you think’?

  It is interesting to note a further comment by de Jersey after the citing of earlier cases relating to wills. He said, ‘I haven’t had a will case for ages and ages’, and having previously indicated he had also not had a civil case for some time, Whiteside began to wonder why the de Jersey had not disbarred himself from the hearing.

  When finally declaring for the Smyth will of December 1998 when making his Orders, de Jersey made this statement –‘The evidence of Mr. Smyth sufficiently clearly established that as at 15 December 1998, the testator had testamentary capacity, and he knew and approved of the contents of the will he then made’.

 In evidence, Dr. Clark advised the court that Tom had a motor vehicle accident in 1988, resulting in cerebral atrophy and dizziness, weakness, buzzing in his ears, headaches, and short term memory down (loss). All this progressed to the stage where Tom gradually got worse, showing signs of confusion, difficulty in speaking and enunciation, and in 1993, Tom passed out with what could be termed, a transient ischemic attack.

 He pointed out that in 1996 Tom had significant carotid artery disease which probably affected his cerebral vascular insufficiency, and resulted in Tom being in a very poor general condition.

Clarke cleverly evaded asking further questions about the time when Tom was signing one will after another. Instead he shifted his questioning to a report Dr. Clark had written to Robbins Watson (at that firm’s request) on 24 September 2002, about a consultation he had with Tom in July 1998, just a few months before the will of 15 December 1998, for which de Jersey eventually granted probate.

 Dr. Clark when asked to recall Mr. Jowett’s condition at that time, commenced his answer by saying ‘He had multiple small strokes, ITA’s, and that’s what’ - ---This is not what Clarke wanted to hear, so before Dr. Clark could finish what he was about to say, Clarke interjected with the next question, by reverting back to the 1988 and 1996 eras.

 Between March 1999 and November 1999, Dr. Clark reported on Tom’s medical condition which was not dissimilar to much earlier observation he had made, but he admitted after in interjection by de Jersey, that he was not happy in giving Tom anti - depressants and sleeping tablets, as it could have made Tom more confused.

 In further evidence, Dr. Clark also admitted he was concerned about Tom’s lucidity, his showing signs of possible pneumonia, pains in his chest, and bad lungs which could be attributed to his continued smoking.  Most of these things were long standing complaints as evidenced by Smyth’s own personal notes at the time of making various wills for Tom.

The following are just some of those notes -  ‘Tom is ill’ –‘ Tom is very sick’ – ‘I think Tom knows what he is doing’ – ‘he is indecisive and impetuous’ – ‘he can’t write down what he wants, he has it in his head’ – ‘Tom rambling’ – ‘very ill’ – ‘doesn’t know where to sign’.

 McCracken it will be recalled rang Dr. Clark in late November 1999, to enquire about Tom’s mental capacity prior to preparing a will for Tom. The question must be asked, (but was not) did the defendant Smyth take this same precautionary approach in December 1998; bearing in mind his early observations and comments about Tom’s mental state.

 Whiteside had no qualms in admitting he had written the instructions for Canning to prepare the 1 December 1999 will for Tom, but it was Tom who signed the letter, Tom who confirmed with Canning his ultimate wishes concerning his bequest, and Tom who ultimately signed the will. The act of writing down Tom’s wishes was no different from Smyth admitting, Tom ‘can’t write down what he wants, he has it in his head’ ,and yet he kept on preparing one will after another for Tom without seeking professional medical opinion as to capacity.

 In cross-examination of the witness by Conrick, Dr. Clark admitted that Tom had a degree of dementia from poor memory, from the date when he first came into contact with Tom – ‘he couldn’t remember recent events’.  Dr Clark re- iterated that Tom’s memory was in fact very poor. This raises a serious question mark over the Orders of de Jersey when he found in favor of the defendant, Andrew Smyth.

 Dr. Clark confirmed that during a visit by Tom to his office on 15 November 1999 (16 days before the contentious 1 December 1999 will) he was aware that Tom was to give an EPOA to Whiteside, confirmed his belief that Tom appeared to understand it, and commented that in relation to the proposed will, he had indicated to Tom it was his business who his beneficiaries would be.

 He further confirmed that a solicitor, Mr. McCracken, had phoned him on 24 November 1999, and upon being asked whether he believed Tom had capacity to make a will, he informed the court it was probably correct that he had said, ‘I had no reservations at all’, thus reflecting his opinion as to Mr. Jowett’s testamentary capacity at the time.

Further questions followed, but like other witnesses before him, his memory recall failed on occasions, especially in relation to a phone call from Tom’s Blue Nurse carer Carole Crozier, who allegedly asked Dr. Clark to re-consider his opinion about Tom’s testamentary capacity.

Crucial to the outcome of the line of questioning was Dr. Clark’s answers in relation to a Functional Capacity Report prepared by him for The Adult Guardian.

 Dr. Clark confirmed that on 15 November 1999, he considered Tom had ‘capacity to understand legal documents and to execute an EPOA’. He confirmed also that it was his opinion that Tom was ‘quite lucid on 8 February 2000, and that his cognitive impairment did not affect his ability to make medical decisions requiring informed consent’.

 Brenda Willis’s Testimony (trained carer)

 Brenda Willis was called upon to care for Tom between May 2000 and July 2001. Willis reported that occasionally Tom had temporary memory loss which she put down to the fact that due to past medical problems, there was on occasions a lack of oxygen transmitted to the brain. Upon treatment she advised that he recovered reasonably quickly.

 According to her observations, Tom was mentally able, and in response to a question as to whether Tom generally had appropriate behavior, the answer was ‘absolutely’.

 Conrick announces the end of the case for the plaintiff.

 

Chapter 13

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