Chapter 15.  The Judge’s Summary



Citation :              Whiteside v Smyth (2003)QSC


Parties :                Bruce Rugby Whiteside (Plaintiff)

                              Andrew Thomas Smyth {Defendant)


File No/s :             SC No 7493 of 2002


Division :              Trial Division


Proceeding :          Claim


Delivered on :       4 November 2003


Delivered at  :       Brisbane


Hearing dates :     27-30 October 2003


Judge :                  de Jersey CJ


Orders :                 1. On the claim, judgment for the defendant against the plaintiff.

                             2. On the counter claim, declare against the alleged will dated 1 December

                                 1999 which is ex 15 in the proceeding, and declare for the force and

                                 validity of the will dated 15 December 1998, ex 32, in solemn form of law

                              3. Order that the costs of both parties be assessed on an indemnity basis

                                and  paid out of the estate of Thomas Jowett deceased.


Catch words :        Proof of will in solemn form – testamentary capacity – alleged lucid

                              interval in course of enduring vascular dementia – Knowledge and

                              approval of contents – Two competing wills – Onus and standard of

                              proof – Review of circumstances of Testator’s presentation over periods

                              proximate to execution of challenged wills.


If the Orders of the Judge in this case are to be challenged, significant aspects of the evidence from a number of witnesses both for the plaintiff and the defendant must be recalled. Additionally, the summation of the Judge must be examined in the light of a considerable number of facts which had either been overlooked, or ignored. On the one hand it seems that de Jersey accepted without question that the defendant Smyth ‘sufficiently clearly established that as at 15 December 1998, the testator had testamentary capacity, and that he knew and approved of the contents of the will he then made’, but chose to ignore the compelling evidence of Canning, the solicitor who prepared the will of 1 December 1999.


Did in fact Smyth ‘sufficiently and clearly establish that as at 15 December 1998 that the testator  Tom Jowett had testamentary capacity, and demonstrate also that he knew and approved of the contents of that will’. It might be argued that Smyth was not ‘professionally qualified to make such an assessment’ as was not Canning who prepared the later will.

For her part, Canning equally believed Mr. Jowett ‘had testamentary capacity, and knew and approved of the contents of the will’ she had drawn up for him to sign.

 Counsel for Smyth made much of precedent case law when addressing the Judge, but were the same principles applied in deciding for the will of 15 December 1998.

No reference was made to this fact.

 Justice de Jersey seemed concerned about what would happen if Mr. Jowett did not have testamentary capacity on 1 December 1999, and questioned if that were the case, then it was presumed the will of 15 December 1998 should be admitted to probate. Plaintiff’s counsel strongly refuted this suggestion on the basis that the medical evidence (as did the Death Certificate) indicated Tom had been suffering from multi-infarct dementia and other illnesses dating back to 1996, and even earlier.

Again, no reference was made of these facts when de Jersey presented his findings in favor of the defendant, Smyth.

 A brief analysis of the Judge’s Orders and legal argument to support those Orders might enable a greater insight to anyone aspiring to be a lawyer; into the working mind of just one person who had to make a decision that had such a devastating affect on the life of another.

Pertinent points in Justice de Jersey’s findings need to be examined, to arrive at a decision based on the evidence provided as to whether he may have erred, or alternatively brilliantly exposed the weakness in the plaintiff’s case.


 Analysis of Orders  :

 The testator may at times also be referred to as the deceased, Tom, Tom Jowett or Mr. Jowett, and Justice de Jersey as His Honor, Judge, or just plain de Jersey.

 (1)Particulars concerning the deceased’s history and number of wills prepared by Smyth over three years were established. Of note is the fact that de Jersey advised that the testator died as a result of a combination of bronchopneumonia, multi- infarct dementia and the consequences of previous strokes. This is true. But what was not mentioned, was that multi-infarct dementia had been prevalent for a period of at least five years dating back to 1996, well before the time he declared for the force and validity of the will dated 15 December 1998.

 In a letter to Canning dated 15 February 2000, shortly after Mr. Jowett signed his last will, Dr. Clark, indicated Tom had for many years been suffering a progressive amnesia. Funk and Wagnall’s Standard Dictionary describes amnesia as a partial or total loss of memory. As the period of loss of memory pre-dates the making of the 15 December 1998 will, it is questionable that Smyth was able to ‘sufficiently clearly establish’ to the Judge that Tom had testamentary capacity, and clearly understood what he was doing.

 Under discovery, Smyth’s own personal notes recorded that on 28 June 1996, Tom was ‘very ill’. On 29 November 1996 he wrote ‘I think he knows what he is doing’.

If as indicated, Smyth was not sure that Tom understood what he was doing, how is it possible to then say he understands?

 Then again on 21 August 1997, he comments that Tom ‘can’t write down what he wants, but has it in his head’. One day later, he records that Tom ‘can’t make up his mind’. Then a week or so after, Smyth declared Tom ‘walked into his kitchen, and can’t remember anything -he didn’t know what happened, and was afraid of dying’.

A similar condition also prevailed in June 1999, when Dr. Clark confirmed that Tom ‘wandered into the surgery in a distressed state, having been lost in his car and unable to find his way home’.

 There were other reports by Smyth prior to drawing up the 15 December 1998 will that should have acted as a warning sign to him, but he continued making wills and made no recorded attempt to obtain professional opinion as to Tom’s mental capacity each time a new will was made. Exhibits supported by affidavits from Smyth himself, indicate more confusing notes concerning late changes by Tom to earlier wills leading up to the one of December 1998.

 On 27 August 1998 there is a note indicating a conversation with Mr. Jowett that lasted four minutes. The tenor of the note was that I McP, a neighbor, was to be added to the list of beneficiaries with a large bequest.

This person was not named as a beneficiary in the 15 December 1998 will prepared for Tom a few months later, but no notation appears to have made to indicate a change of mind by Tom.

 On 14 September 1998, Tom again changed both the names and amounts of those who were to benefit from his estate.  Both SS and TP were listed to receive substantial amounts. However in the final will prepared by Smyth some three months later, both were nominated to receive much smaller amounts.

 After instructions from Tom on 18 September 1998, there is a note that simply states ‘Put back in (Iris) Whiteside’.  This instruction never flowed through to the will, and as a result she did not receive one cent. However on the day of execution of the 15 December 1998 will, Tom spent 30 minutes with Smyth finalizing it and making further changes including the deletion of Iris Whiteside. Another 30 minutes elapsed, and Smyth noted that Tom had phoned to ‘be sure he covered everyone’, a surprising move considering he could arrange another meeting for further changes as he had done so regularly before.

 It is possible much of this evidence did not surface at the trial, and if that is the case, a question mark must hang over the final findings. Was in fact justice done, or seen to be done?

 (2) This clause contained comments concerning the transition in time that saw Tom over a period of one year, leave the whole of his estate to Whiteside.

 (3) de Jersey comments here that Smyth alleged that at 1 December 1999, ‘the testator was not of sound mind, memory and understanding, and did not know or approve of the contents of the later will’.

 Smyth’s allegation was never proven, and he was certainly not qualified to give such an opinion. In fact there were several admissions made throughout the trial that suggested Tom may well have had testamentary capacity, albeit, not conclusive.

As to Smyth supposedly not approving the contents of the later will, the question could be asked, ‘for a will to be declared valid, is it mandatory that a former solicitor approve the contents of a later will prepared by another solicitor’. 

 (4) de Jersey now advises of his intention to set out other significant facts resulting from the hearing, some of which Whiteside would undoubtedly question.

 (5) Under this clause, de Jersey confirms ‘Smyth had some reservation about the testamentary capacity when the testator executed the earlier will dated 15 December 1998, arising from the number of wills  and the frequency of the changes made’. However this matter apparently did not excite the vigilance of Smyth or the court, allegedly because ‘ the testator had made fine and discriminating changes in what was being proposed from time to time, and revealed sufficient understanding of all the elements going to make up the requisite testamentary capacity’.

Justice de Jersey advised that he drew these conclusions from the evidence of Smyth.

 How then did Smyth persuade de Jersey; certainly not by providing a medical certificate to prove capability, certainly not by assessing the testator himself as he was not qualified to do so, and certainly not as suggested because of fine and discriminating changes, as the testator had made so many changes before, even whilst unable to comprehend at times what he was doing.

 (6) Reference is now directed to the condition of the testator’s medical history in the year 1996, where it was established that the testator showed ‘short – term memory loss, had substantial carotid artery disease, and over the years experienced multiple small strokes and a probable major stroke in the mid to late part of 1996’.

 Bearing in mind the diagnosis concerning the testator’s health in or about 1996, it may be contended that more attention should have been directed to the testator’s capabilities in earlier years, as many of the signs of health problems appear no different from the time of signing the 1999 will.

 (7) de Jersey in this clause confirms the extremely close relationship Whiteside had with the testator, akin to that of a ‘father and son’ – and the periods when they were not on good terms. He also confirms Tom becoming averse to entering a nursing home, and Whiteside’s determination that this would not occur – that is correct.

 (8) This clause contained comments by de Jersey noting carers assistance given to Tom from 1996, their observations of his development, and his acceptance of medical evidence and that symptoms of cognitive impairment could pass unnoticed by professionals.

 If cognitive impairment could pass unnoticed by professionals, it can be assumed that even if a doctor were in attendance at a testator’s execution of a will, no guarantee could be given that the person executing the will did not have cognitive impairment at the time. This seems to contradict earlier statements of the court, and at the same time throw doubt on Smyth’s evidence that convinced de Jersey the testator ‘had testamentary capacity as at 15 December 1998’. At the same time, Canning’s approach, as cursory as de Jersey claimed it to be, seemed strong enough to suggest that even if a professional was in attendance at the time of the signing of the 1 December1999 will, symptoms of cognitive impairment may still have gone unnoticed.

 (9) Justice de Jersey at clause 9 recalled the evidence that in May of 1996 Tom had asked Whiteside to act as his Executor, but Whiteside refused. The records show that Tom had expressed concerns to Whiteside that Smyth had suggested he direct his money to charity – Tom was to later confirm this was why he made the new will of 1 December 1999.

 (10) de Jersey next recalled evidence that indicated in the first week of November 1999, Tom made statements that were in his opinion delusional, and that was a correct description of the testator’s actions at that time. He accepted Whiteside’s testimony that Tom had shown him a will drawn up by Smyth giving his money to charities. Tom had then asked Whiteside to take charge of his affairs.

 In essence this is correct, but the comment the testator had given his money to charities suggests charities were the only recipient under the will. This did not occur in any of the wills prepared by Smyth and executed by Tom, as in every will made, there were beneficiaries named other than charities.

 (11) The summation claimed is correct. Whiteside did in fact arrange for Tom to meet with Dr. Clark on 15 December 1999, and Tom did inform Dr. Clark that he wished to grant an Enduring Power of Attorney in favor of Whiteside, and of his intention to make Whiteside the sole beneficiary of his estate.

Dr. Clark did not object to Tom giving his Power of Attorney to Whiteside, and said it was up to him as to who would receive his estate.

 (12) Two matters of note arise from de Jersey’s recollection of proceedings. He first observes that in his opinion ‘it was unusual that McCracken was consulted rather than Smyth’, and then states that Whitehead (it is assumed he meant Whiteside) told McCracken that the testator was an elderly gentleman whose ‘memory was not too good’.

 On the first point, the records show that on several occasions Tom had told others of his worry that Smyth ‘wanted him to leave his money to charities’. Whether true or not, it undoubtedly was on Tom’s mind, and that no doubt explains his decision to have a different lawyer. It must be remembered that Smyth had very little contact with Tom after the making of the 15 December 1998 will, whereas Whiteside from March 1999 on, would often meet with him and even take food over to his home.

 Yes, Whiteside did describe the testator as being an elderly gentleman, but did not use the words ‘memory not too good’. What he did say was ‘and that care may need to be taken with regard to his mental capacity’. (McCracken’s evidence)

How then could de Jersey say that the latter statement was ‘a substantial understatement of the testator’s impaired condition’?

 (13) In this paragraph de Jersey reiterates evidence given by McCracken by repeating comments that he made. McCracken had claimed he had no concern about the testator’s testamentary capacity or demeanor, had addressed the significance of a will, the extent of the testator’s estate, and the range of possible beneficiaries.

 (14) In referring to Dr. Chai’s evidence upon which Justice de Jersey relied, he noted that Dr. Chai agreed with McCracken’s assessment that the testator  may have had testamentary capacity on 1 December 1999. His view was dependant among other things, upon the testator having given instructions as to the range of possible beneficiaries.

By not revealing the beneficiaries under a prior will, Clarke (for the defendant) had argued that the testator fell short of demonstrating sufficient capacity, whereas Conrick for the plaintiff submitted that the relevant field was limited in any case.

de Jersey does not in this paragraph suggest which argument he supports, but having referred to Dr. Chai’s evidence, it would seem he was open to the fact that the testator might then have had testamentary capacity, but this could be nullified by the fact that he did not give instructions on the range of possible beneficiaries.

 No precedent case law history was quoted, and one might well ask - does the fact that a testator didn’t disclose beneficiaries under a prior will when making a new one, disqualify the current will from being accepted as a valid instrument indicating the current wishes of the testator ? Smyth at no stage in preparing any of his wills for the testator questioned why they were being changed. Instead it appeared he may have even tried to influence the testator by the allegations he advised the names of charities Tom could leave his estate to.

 (15) Comment under the heading of case law have already been mentioned in the ‘Williams, Mortimer and Sunnucks’ case, but it appears de Jersey draws no conclusion concerning them, as he indicates the point made in the case ‘is not critical to my ultimate determination’.

 (16) de Jersey acknowledges that McCracken prepared a will, rang the testator’s doctor and checked the issue of testamentary capacity (no doubt because of the warning given by Whiteside about Tom’s health) and heard from Dr. Clark that ‘in his view Tom had the requisite capacity, on the basis that although his client suffered some lapses, he was good for most of the time’.

 (17) Here Justice de Jersey rightly points out that the testator failed to give ‘a rational response’ when phoned by McCracken to make a further appointment, by indicating to McCracken that he already had a solicitor and did not need another one.

Could it be argued that the response may in fact have been a rational one, as it is obvious the testator now recalled his earlier association with Andrew Smyth.

 (18) Reference is made to de Jersey’s strong opinion that Whiteside ‘had (not may have) blinded himself to the seriousness of the testator’s cognitive impairment’.  By claiming Whiteside had blinded himself as to Tom’s cognitive impairment, he placed himself in the position where he became the sole judge as to Whiteside’s capability to assess Tom’s condition. Whiteside was not a qualified person who would know the medical terms associated with Tom’s condition, yet he did warn McCracken that ‘care may need to be taken with regard to his mental capacity’.

 Smyth on the other hand made no such enquiry about the seriousness of the testator’s mental capacity, but continued making wills with the full knowledge that his client ‘couldn’t write down what he wanted, but had it in his head’ and on many occasions could not make up his mind as to whom he wanted to leave the balance of his estate.

Whiteside it will be recalled also wrote down what Tom ‘wanted and had in his head’ but this was to be used against him in evidence.

 (19) Canning who drew up the contested will was taken to task by de Jersey for not adopting a particular process designed to test the testator’s testamentary capacity. He also implied that Canning, by not testing the real level of comprehension, failed in her duty by only offering explanations which Tom simply accepted.

 Tom signed a letter setting out his wishes. He nominated Whiteside as the only beneficiary. Canning under Oath stated she paraphrased the will to Tom without reading it out word for word, and explained the importance of the documents he was about to sign. She stated Tom understood the bequest he was making, said ‘Yes, that’s right, that’s what I want, and yes I understand’. When asked by Whiteside’s counsel had she in mind the question of testamentary capacity, she replied ‘No, because he seemed perfectly lucid to me, very aware of what he was doing, quite adamant about what he wanted, seemed happy with the documents, and fully understood them’.

 It is obvious de Jersey did not believe the witness, and was concerned that although the testator had signed a letter setting out his wishes, it had in fact been written by Whiteside. At this point it is pertinent to recall that the testator many years before had allowed third parties to write out cheques for him for large sums of money, which he duly signed. Also he had informed Smyth on at least one occasion that he ‘could not write down what he wanted’, so it is possible Tom once again ‘could not write down what he wanted’ even though ‘he had it in his head’.

 (20) Again de Jersey appears to have given Canning no benefit of doubt about her conduct with the testator. Described as being inadequate in her approach to the ‘obviously aged enfeebled prospective testator’, he suggested Canning was lacking in the fundamental basics of law, yet placed in a similar situation most lawyers would have acted exactly as she had.

Smyth for instance, constantly had problems with the testator, yet continued making wills for him, with it seems, little or no regard to his constant lapses in being able to clearly outline what he wanted.

 de Jersey raised the ‘Hardingham, Neave and Ford’ case (already referred to) to support his views on Canning’s inadequacy at the time, yet overlooked his own opening address to counsel when he repeated several times that all he was interested in this trial was ‘whether or not Tom was of sound mind when making his last will’.

 Canning a trained lawyer, was the only person able on that day to give an opinion as to Tom’s testamentary capacity at the time, and in evidence, claimed she was satisfied he knew exactly what he wanted, and what he had signed.

 (21) Here we find de Jersey noting submissions put; that Whiteside would dearly have preferred to not travel to New Zealand at a time when he felt Tom needed him most.

de Jersey refers to the evidence that claimed Whiteside was emotionally dedicated to the welfare of the testator, and had given extensive assistance.

The Transcript of Proceedings supports this statement.

 (22) Records events of Tom’s irrational behavior (not unlike several occurrences that happened during Smyth’s association with him) after the date of signing his last will, and his admission to the Gold Coast Hospital and subsequent release into the care of Bruce and Iris Whiteside, followed by his eventual return to his own home under the supervision of full-time carer Joy Willis.

 (23) ‘Mini mental state examinations’ administered whilst Tom was in hospital confirmed his inability to look after himself. Evidence suggested he had suffered vascular dementia for some time, but had suffered ‘no acute medical problem’ since making his will on 1 December 1999 up until the time of his hospitalization – this is correct.

 (24) Comment was made here that any anxiety or stress suffered by Tom because of the departure of Bruce and Iris Whiteside to New Zealand would have been unlikely to have influenced the progression of the testator’s deterioration to the extent suggested for the plaintiff.

Discussion in this clause revolved around events after 1 December 1999.

 (25) de Jersey again quotes comments by Dr. Chai, and upon examination there is nothing contained in the transcript to suggest the testator either did, or did not have testamentary capacity at the time of signing his last will.

For instance, Dr. Chai uses the following hypothesis – ‘If we say …Mr. Jowett had a dementia of a mild form, we could reasonably then say  that he would be deemed capable most of the time, and only in specific circumstances like an acute medical condition causing more confusion would his capability be questioned’.

He also indicated that the evidence points to a moderate degree of cognitive impairment, but then goes on to say ‘if the person doesn’t know what day it is, can he remember what his assets

are’?  Dr. Chai is asking the question, and left it for the Judge to reach a conclusion based on evidence given, not on either his hypothesis or his question.

The comments proffered in no way suggest that the testator did not have capacity on 1 December 1999, and neither should they, as the evidence of Canning on the actual day of signing seemed to suggest otherwise.

 (26) Comments under this clause are considered an accurate account of a taped conversation between Whiteside and Tom after his release into Whiteside’s care. Regardless of the statement made by Whiteside that he was of the opinion the contents might be helpful to Tom’s carers, it could reasonably be considered that Tom’s responses to questions put, were in fact ‘compliant’ only.

 This assessment is a fair assumption given the circumstances that occurred some six weeks after the signing of Tom’s final will, but again, has little to do with the mental capacity of Tom at the time of signing the will. A thorough examination of Smyth’s personal notes during his many interviews with Tom, indicate similar occasions when he appeared unable to formulate what he had in his mind, and even showed hostility towards Whiteside in late 1998, and another major proposed beneficiary, who in the end was not named in the last will prepared by Smyth.

 (27) The statement made here is irrelevant to the main issue of capacity as at 1 December 1999, as de Jersey refers primarily to evidence given by a psychiatrist in September 2000, and then relates the testator’s condition as expressed by others at 8 December 1999.

Considering the evidence is it proof of lack of testamentary capacity if comments made such as ‘in the ball park’ are offered to the Bench.

 (28) Several witnesses named in this passage by de Jersey, commented on their observations of Tom’s behavior, and whilst accepting their evidence, he advanced the opinion that the views expressed ‘did not significantly advance the issue of testamentary capacity’. On the other hand it could be argued their evidence ‘did not sufficiently negate the issue’.

 (29) Here we find recorded the fact that Blue Nurse carer Carole Crozier observed Tom from 1995 until early 2000. She confirmed ‘his deterioration, with increasing forgetfulness and confusion’, but de Jersey does not further the matter in order to determine the extent, and the years in which the deterioration and forgetfulness actually increased.

 As a large beneficiary in the earlier will, it is unlikely Crozier would acknowledge Tom’s deterioration was such that it would have affected his capacity around about that time. But her evidence suggested that towards the end of 1999 the testator had ‘lost it’, knowing that if the later will succeeded, she would not inherit.

 (30) Much that is recorded in this clause by de Jersey is a repeat of earlier statements. He points out that carers’ diary notes indicate that over the days preceding the date of the later will, Tom was often confused troubled and irrational. This is probably true, but can one discount the observations of McCracken concerning Tom at the time he saw him, along with the comments made by Dr. Clark and Canning, which were all positive.

 Equally true, as recorded in Smyth’s notes covering his many consultations with Tom, was his apparent deterioration, forgetfulness, and confusion long before the date of his executing the December 1998 will, and events around late November 1999. Is this a matter which should have been given more weight when deciding at what stage of his life Tom was incapable of knowing what he finally wanted to do with his assets?

  (31) The principles of law concerning testamentary capacity as set down in ‘Shorter v Hodges’ have been accepted as the real test as to a persons mental state at the time of making a will.

However in the case Whiteside v Smyth, each of the many principles expounded must be thoroughly tested in order to ensure the right decision was reached.

 The first such principle is that the testator ‘shall understand the nature of the act, and its effects’. Did Tom Jowett understand the nature of the act, and its effects?

 Canning’s testimony informed the court that when paraphrasing the contents of the will Tom was about to sign, he had said ‘Yes, that’s right, that’s what I want. Yes I understand that’ When asked if he had a special bequest he had not mentioned, the transcript does not indicate a direct answer, so it can only be assumed under the circumstances that the answer was ‘No’ bearing in mind he had no immediate family or close relations. It must be remembered that in the prior eleven wills prepared by Smyth, no provision was made for his few overseas relatives with whom he had no dealings for many years.

 The next principle expounded was that any testator ‘shall understand the extent of the property of which he is disposing’. The letter the testator signed outlining his wishes indicated it was his wish to leave the whole of his estate to Whiteside. Canning did no more or no less than what she had been asked to do. In other words it would have been fruitless on her part to say for example, ‘what is the extent of your assets – how much have you in cash – do you know the value of your house – what jewelry do you have, - and, are you sure you want Whiteside to get it all?

Canning’s job was not to upset the person before her as she was acting upon instructions he had given. She was later to say ‘he seemed perfectly lucid to me and very aware of what he was doing. He was quite adamant about what he wanted, happy with the documents, and fully understood them, and was quite succinct in responding and expressing his wishes’. The question might well be asked, did Smyth in preparing so many wills for Mr. Jowett, go into as much detail as did Canning?

 The third principle to be applied is that the testator ‘must be able to comprehend and appreciate the claims to which he ought to give effect’. This issue has already been covered, but again it is pointed out the testator had no immediate family, and had not been in touch with the few overseas relatives he might have had. No claims had been made on the estate by these people, because they would have been totally unaware of his existence, or whether in fact he was still alive.

 The fourth principle set down is ‘that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made’.

These words are a preamble of legal jargon that only confuses the real issue of ‘did Tom Jowett on the day he signed his last will and testimony have testamentary capacity’ which after all, was all that Justice de Jersey said he was interested in.

 (32) The ‘Easter v Griffith’ case is mentioned once more, and although the onus of proof as to capacity fell upon the plaintiff, the plaintiff’s prime witness as to the testator’s capacity, in fact the only witness other than the testator, was adamant that her client new what he was doing. It is correct to say that the power to dispose of one’s assets by will is an important right, and a determination that a person lacked a sound disposing mind is ‘a grave matter’. The Judge in this case was the one to make a ‘grave decision’ which many might consider to be an error of judgment. On the other hand, did de Jersey foresee issues in the trial that most outsiders would have overlooked?

 (33) Whilst in ‘Fuller v Strum’ the standard of proof is based on the balance of probabilities, the word ‘probable’ is described as ‘likely to be true, but falls short of demonstrating actual belief’. If the demonstration falls short when considering probabilities, can it be accepted without reasonable doubt that this principle should apply in all cases?

 (34) Reference as to who in this case should accept the burden of proof, has little to do with the ultimate decision as to whether or not the testator had testamentary capacity on 1 December 1999.

 (35) It is noted that counsel for the plaintiff mentioned in his opening address to the court, that in the case to be heard, there were circumstances that ‘might excite the vigilance of the court’ but this should have been a plus for counsel as there was no attempt to cover up a circumstance which ‘might excite the vigilance of the court’. In fact, there would have been far more circumstances that ‘might have excited the vigilance of the court’ in the lead up to most of the wills prepared by Smyth. This was apparently not taken into consideration when Orders were given in favor of the defendant.

 (36) de Jersey refers here to the ‘Barry v Butler’ case which records the circumstances  surrounding the preparation of a will where the will is prepared through the agency of a party who benefits, without the professional person who ultimately prepares it having access  to the deceased for the purpose of taking instructions.

 Whiteside did write down what the testator wished him to do, which could ‘excite the jealousy and vigilance of the court’ but this was no different to wills made by Smyth for the same person when he accepted the explanation of the deceased in September 1997, that ‘he can’t write down what he wants – he has it in his head’. In fact in one such will preparation, the deceased told Smyth ‘I can’t make up my mind’.

In his findings, Justice de Jersey repeatedly quotes case law as his reason for denying probate to the plaintiff, but should more emphasis have been placed on the facts put before him, rather than reverting back to past decisions of other courts?

 The Judge in the Barry v Butler case made it abundantly clear that ‘the court must take care not to convert a circumstance, which is only a reason for vigilance and caution, into an actual defeasance of the right of testamentary disposition’.

Did de Jersey convert a circumstance to convince himself that Tom Jowett was of unsound mind when he signed his final will?

 (37) de Jersey here states that Canning’s evidence ‘could not, in short’ be conclusive in this case.  This would suggest that her evidence under Oath was not acceptable, which raises questions as to her right to practice law – not that de Jersey inferred this to be the case.

 (38) Once again de Jersey refers to case law, this time, a repeat version of the ‘Williams Mortimer v Sunnucks’ case, but it is uncertain if he is supporting the argument of lucid intervals legalizing the contents of a will or not, as the matter was raised by plaintiff’s counsel, and not counsel for the defendant.

 (39) In summing up, de Jersey states that he is ‘not satisfied that as at the time of execution of the will of 1 December 1999, that the testator was of sound mind, memory and understanding due to substantial doubt’. Apparently he had no doubt concerning any of the earlier wills prepared by Smyth.

 (40) de Jersey refers here to prior conclusions reached, and health issues already discussed to substantiate his findings ‘without any reasonable doubt whatsoever’ that on 1 December 1999 Tom Jowett was, because of mental impairment, lacking in testamentary capacity; and therefore not able to understand the contents of the will he signed on 1 December 1999.

His summation indicated that regardless of what Canning observed and believed concerning Tom’s mental capacity, he could not accept her evidence principally because she was not professionally qualified to express the opinion she did.   

 (41) What bothered Whiteside was not so much that he had been denied the dying wishes of the ‘old man’ he had befriended and taken into his own home, but the fact that de Jersey was able to say without equivocation whatsoever that –

 ‘The evidence of Mr. Smyth sufficiently and clearly established that as at 15 December 1998, the testator (Tom Jowett) had testamentary capacity , and that he knew and approved of the contents of the will he then made’ 


Chapter 16