Chapter 16. Was Justice Done ?
In order for readers to determine whether in their opinion justice was not only done, but seen to be done, it is necessary to recapitulate on the events and evidence in the Supreme Court of Brisbane, during those four days of instruction and argument in late October of 2003.
By now the parties involved would be well known to readers, but the history of events from 1995 until the death of the testator Tom in July 2001 need to be recalled, to re-fresh memories of the circumstances of the case before the court.
When two opposing barristers in a case are chosen to represent their respective clients, each calls upon the other under the doctrine of discovery, to have all documentation or other records kept by their client delivered to them for examination and use during questioning and cross-examination of witnesses.
The facts contained in ‘You be the Judge’ are taken from the transcript of the case, personal records of both the plaintiff and the defendant, media reports, lawyer’s correspondence, information obtained from web sites, evidence given in court, and the final Orders handed down by the Judge.
It is possible that accurate and factual evidence obtained through the process of discovery may not all have been examined and used for the benefit of the plaintiff, as issues that to one person may seem important, are not necessarily considered important to another.
For instance, during cross-examination of the defendant, very little mention (if any) was made of Smyth’s notes concerning the demeanor of Tom Jowett during his many interviews with the defendant. It could be that a more determined interrogation to discover Tom’s real state of mind well before the contested will of December 1999, may have unearthed capacity problems much earlier than revealed by His Honor when announcing his findings.
Assuming Justice de Jersey accurately assessed the evidence given and the mental condition of Tom at the time of making his last will, then the question arises as asked by him, ‘What am I to do about the earlier wills’? This is a question all readers should ask, especially as Smyth recorded conversations with Tom that if raised at the hearing, ‘may have excited the vigilance of the court’.
Based on those notes and the many interviews Smyth had with the deceased, it is obvious that he should have recognized the cognitive impairment of his client, and accordingly sought professional opinion as to Tom’s mental capabilities to fully understand the contents and effects of the final will prepared by him on 15 December 1998.
What one needs determine, is whether the following comments by Jowett over the three year period Smyth was preparing his many wills and codicil, were those of a person in full control of his mental faculties. Although mostly a repeat of previously described remarks by Tom, it is necessary to re-iterate what was said, in order that a reasonable conclusion can be reached.
. Tom wants no argument and doesn’t want Smyth to talk him out of it again?
. Tom and his wife don’t know what they want to do if both die
. Tom concerned that someone might disclose the contents of will, and questions if he and his
wife can write out bequests on a piece of paper and keep in the bank. Smyth confirms it can
be done but the will must refer to it, and it must be done properly
. Smyth notes that the Jowett’s don’t want all that ‘Trust’ stuff in the will and then comments
after his explanation – ‘I don’t think they really understood’
. Tom has now taken cash out from under the garage shelf -now carries it with him in his
. Tom argues with Smyth –‘you’re always sitting on ‘tacs’ – I can give what I like to who I
like, can’t I ?
. Tom indicates all his friends have disappeared and wants to strike people out of will. He is
not sure about charities, he has been really ill the last few days, and wanted changes made
and new will done immediately
. Bruce (Whiteside) looked after him – will assist a lot – put him in as co-executor (this
instruction was never carried out by Smyth) - Tom has been very sick
. I think Tom still understands what he is doing he is indecisive, and a bit impetuous
. Tom does not now want SJ to get anything - I still think he knows what he is doing re
will, he worries about it but understands
. Tom told the codicil he signed wasn’t dated
. Tom can’t write down what he wants – he has it in his head
. Tom doesn’t like Bruce much more, but leaves $6,000 to his wife
. Tom can’t make up his mind about residuary beneficiaries
. Tom doesn’t know what happened – walked into kitchen and can’t remember anything else
. Tom scared he will die, frightened to sleep, says nothing can be done for him, and has
. Tom hadn’t spoken to his doctor as he believes he doesn’t take him seriously
. Tom disappointed with S, wanted to leave all his $’s to C but decided against it. Tom
getting desperate and tired of living - run out of will to live
. Tom rambling – he’s been very ill – didn’t let jeweler in as he didn’t trust him
. No. 13 in will – she is just a ‘con job’ – told lies, so delete altogether
. Tom can’t decide on remainder – still doesn’t know
. Tom seemed in good spirits and very decisive – happy with beneficiaries 11-16 but if
they offend him, he will cut them out of will
. Tom makes many more changes before signing last will prepared by Smyth
Was His Honor aware of these events, and if so, based on the many case law principles quoted by him, it seems extraordinary that he could declare for the force and validity of the last will prepared by Smyth dated 15 December 1998. After all it would seem no different than Canning’s position, as Smyth’s approach seemed ‘equally cursory and wholly inappropriate to the situation of an elderly prospective testator of feeble disposition’.
If de Jersey was unaware of Tom’s demeanor, advanced emphysema, illness, ramblings, and inability to write down what he wanted during Smyth’s interviews with him, there would appear to have been a travesty of justice, as the case for the plaintiff would seem to be stronger than that of the defendant if the evidence of both Canning and McCracken were to be believed. The question then arises as to whether all the evidence available to counsel for the plaintiff, was in fact used to the best advantage of the client.
However there were other circumstances brought to the attention of the presiding Judge, not the least of which was the cause of death of the testator. The Death Certificate clearly sets out the cause of death as being ‘bronchopneumonia, multi –infarct dementia, and previous strokes’. More importantly, the duration of the last illness of bronchopneumonia is listed as approximately five days, but in the case of the multi - infarct dementia diagnosis, the certificate clearly states that dementia had been in existence for a period of five years prior to the date of death.
This is the clearest evidence available to de Jersey as to the condition of the deceased between the years 1996 through to 2001, and supports the adverse notes and observations of Smyth as to Tom’s conduct when making so many wills during that period.
In making his Orders in favor of Smyth for the force and validity of the December 1998 will, it seems little credence was given to the apparent cognitive impairment of the deceased as described in the Death Certificate.
What is Multi-infarct Dementia ?
The National Institute of Neurological Disorders and Strokes (along with other health organizations) describes multi-infarct dementia in the following terms –
Multi-infarct dementia (MID) is a common cause of memory loss in the elderly. MID is caused by multiple strokes, or, disruption of blood to the brain. Disruption of blood flow leads to damaged brain tissue. Some of these strokes may occur without noticeable clinic symptoms. Doctors refer to these as ‘silent strokes’. An individual having a silent stroke may not even know it is happening, but over time, as more areas of the brain are damaged and more small blood vessels are blocked, the symptoms of MID begin to appear.
Symptoms include confusion or problems with short term memory, wandering, or getting lost in familiar places, having difficulty following instructions, and having problems in making monetary transactions. MID typically begins between the ages of 60 and 75.
Because the symptoms of MID are so similar to Alzheimer’s disease, it can be difficult for a doctor to make a firm diagnosis.
Based on the above explanation, and the need for Justice de Jersey to confine himself to the facts, it now becomes problematic without a degree of conjecture or speculation, for anyone to be certain as to the mental condition and testamentary capacity of Mr. Jowett, either on the day of the making and signing of his last will on the 1 December 1999, or for that matter, on the date of making his previous will on 15 December 1998.