Chapter 14.  Case  Law


Courts develop rules to guide them - sometimes referred to as the ‘doctrine of precedent’.

 When making a decision, a Judge will usually give his reasons for his decision based on all of the facts as presented. A Judge is also bound to decide in a similar way as earlier cases provided the principles and evidence are similar.

 If the facts and the principles of earlier cases are not exactly the same as the case under consideration, a Judge can still compare them and apply a common principle. Alternatively he can develop new ones based on the facts before the court. If the Judge decides the case is similar but not identical, he does not have to follow the principles given.

 This then is the position Justice de Jersey found himself in. Several cases of similar type trials had been quoted by Clarke in his capacity as counsel for the defendant.

Accordingly, de Jersey was compelled to consider them to ensure the principles were identical in each case, and if not, as presiding Judge he could order differently. Three of the cases are quoted, with comments recorded so that readers can judge for themselves whether or not there were differing principles in deciding the Whiteside v Smyth case.

 Item 15 p. 4

Williams Mortimer and Sunnucks : Executors Administrators and Probate (18th. Ed.) p. 172)

‘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’.

 Comment :

The deceased in this case had made 11 prior wills plus a codicil. All were drafted by the defendant Smyth, over a period of three years from October 1995 to December 1998.

Disclosure revealed no evidence to suggest Smyth asked Tom why he was revoking his earlier wills when preparing new ones, sometimes just a few months apart. It would be unrealistic to suggest that he was bound by precedent to do so, especially as it would have annoyed Tom to the extent he may have changed his solicitor - which he did in any case.

Justice de Jersey appears to have ignored this principle, as he ordered in favor of the December 1998 will without proof that Smyth had indeed made enquiries as to why Tom was revoking his earlier wills.

 McCracken did raise the matter of earlier wills, and went so far as to say he would like to see Tom’s previous will. However he was told ‘Not to bother about them as I am not happy about certain things’. This could have been because of his concern, rightly or wrongly, that Smyth allegedly was trying to get him to leave his estate to charities.

 Ms. Canning, the solicitor who made the ultimate will, informed the court that no issue was made about his capacity because ‘he seemed perfectly lucid to me’. She did not ask about earlier wills because ‘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’.

 However Justice de Jersey did not accept Canning’s testimony that it was her opinion Tom knew what he was doing. His principle reason for rejecting her evidence was because she did not possess the professional training and qualifications to determine his mental state at the time; not because she did not ask Tom about why he was revoking an earlier will.

The question could be asked, how many solicitors that prepare wills have the necessary qualifications to determine whether or not their client was perfectly lucid and of testamentary capacity at the time. Furthermore, how many adopt the principle as described in the Williams Mortimer and Sunnucks case.

 ed forms (usually available at newsagents) to save on legal costs. Could it be argued that they are not valid because at the time of making the will, the person may have been lacking in understanding of what he or she was doing.

 Justice de Jersey found in favour of Smyth for the 15 December 1998 will. He did this regardless of the fact that no evidence was brought forward to suggest a person with suitable qualifications had been in attendance to certify Tom did have full control of his mental faculties at the time.


  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’.

 Comment :

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’. The plaintiff advised both McCracken and Canning of Tom’s age and frailty, adding that this was the reason he had transported Tom to their respective offices by car.

 In relation to the above mentioned case law quotation, 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.

 Ms. Canning’s evidence under Oath was that Mr. Jowett ‘appeared perfectly lucid to me – he seemed very aware of what he was doing – he was quite adamant about what he wanted – he fully understood the will and the EPOA – and, he was a man who knew what he wanted, and was quite succinct at expressing his views’.

It is quite evident from the findings that de Jersey had expected more from Canning. She was not professionally experienced in diagnosing dementia symptoms, but she was able to give a firm and precise view of Tom’s condition at the time, as well as his understanding, and   significance of what he was doing.

 By placing little credence on the evidence of Canning, de Jersey ignored his own address to counsel in which he was adamant that the outcome of the trial would rest solely upon the issue of ‘looking precisely at the testator’s mental capacity on 1 December 1999’.

What was particularly galling to Whiteside was the acceptance by de Jersey of the apparently unsupported evidence of Smyth, that Tom did in fact have testamentary capacity on 15 December 1998.

 If de Jersey had doubts about Canning’s evidence as suggested, Whiteside maintains he should have had even more doubts as to the reliability of all of the wills drawn up by the defendant, especially bearing in mind the history of Smyth’s interviews with Tom, the mental uncertainty of Tom as disclosed in ‘the defendant’s own diary’, and the cause of death as disclosed in the Death Certificate.

 Item 32 p. 7

Easter v Griffith – Supreme Court of N.S.W. Court of Appeal – June 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’.


 Comment :

In the case Whiteside v Smyth, the burden of proof as to capacity fell upon the plaintiff and it was up to plaintiff’s counsel to prove that Mr. Jowett had capacity on the day of making his final will. On that day there were only two persons who could give an opinion as to the state of mind of the testator, the plaintiff himself, and the solicitor drawing up the will.

Evidence from the plaintiff no doubt would have to be disregarded because of his pecuniary interest as the sole beneficiary, but should more emphasis have been accorded to the testimony of the solicitor in attendance, as she was convinced that Tom knew exactly what he was doing.

 In a later letter to the Attorney General of Queensland, Whiteside had this to say -

 ‘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 eulogized 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’.


Chapter 15