Chapter 17.  Conflicting Evidence



For anyone sitting in on the trial, a huge question mark remains as to the professional expertise of witnesses to accurately gauge the physical and mental condition of the testator at the time of executing his final will on 1 December 1999.  

Evidence was given by several people who had known Tom for many years, and they were able to reflect on his moods, his actions, his health, and general appearance. On the other hand, several witnesses were called in to give their opinion about a man who they hardly new, and although able through their specific field of training to observe Tom during a difficult period in his life, they never-the-less had no real evidence concerning his medical condition at, or about the time the contested will was executed. To some extent they relied on the evidence of others.


Perhaps the best person to have known of Tom’s medical background was his personal physician, whose association with him dated back as far as 1988. This person was Dr. Clark. His evidence in the eyes of the court should have weighed heavily on the presiding Judge, as he had a longer association with Tom than anyone else.

Although he gave evidence of extended periods of lucidity of his client, he did in fact advise Whiteside to look for a ‘window of opportunity’ before accepting any benefits that Tom might wish to bestow on him. This is no doubt the reason why Whiteside when setting up an appointment with McCracken, informed him that Tom was ‘an elderly gentleman, and that care may need to be taken in regard to his mental capacity’.

 Justice de Jersey for his part emphasized time and again that all he was interested in was ‘whether on the day the 1 December 1999 will was made, was Tom Jowett of sound mind and disposition’, and therefore capable of fully understanding and knowing what he was doing’. Although not conclusive, he accepted the evidence of Dr. Chai and Dr. Zeukelis, which apparently raised elements of doubt in his mind as to whether Tom really did have testamentary capacity on that day.

 It seems clear that de Jersey heard nothing in evidence, to suggest that the principles that applied in the many case law trials mentioned, were any different than those in the trial itself. Some might beg to disagree, but concerns they might have expressed could not be raised as this was not a trial by jury, but by a single Judge appointed to weigh up the facts.

 A reporter recently, in referring to the authority of those in charge of our courts commented on ‘The ivory towers of the Supreme Court where Judges hold God-like powers’ , seems like a clear description of the situation that Justice de Jersey found himself in.

Whatever conclusion he arrived at, whatever decision he made, one of the parties in the case would leave the court at the end of the trial dissatisfied with the verdict.   

 As the plaintiff in the case, it was left to Whiteside’s counsel to prove that on the date of

1 December 1999, the testator was fully aware of his actions and intentions in leaving his estate to Whiteside. Although evidence given by McCracken and Canning was forthright, and no doubt convincing to some, it was not sufficient to convince de Jersey that Tom had the mental capacity at the time to comprehend what he was doing.

 In the case of Canning’s testimony, de Jersey found it impossible to accept her evidence, on the grounds that she was not trained professionally to diagnose the testamentary capacity of Tom at the time. In fact he was critical of her approach to drawing up the will as cursory and wholly inappropriate to the situation.

McCracken was not in attendance at the time Tom signed, and because of Tom’s earlier questionable actions, de Jersey no doubt discounted the evidence he gave as unacceptable under the circumstances.

 There really are two issues to be considered, and both had a significant affect on the outcome of the trial. The first and major issue is whether or not the testator, Tom Jowett, was of sound mind and understanding at the time of signing his last will, had testamentary capacity, and knew and approved of the contents of the will.

The second issue relates to the decision of Justice de Jersey, (after deciding that Tom did not have testamentary capacity) to award probate to the defendant on the basis Smyth sufficiently and clearly established that approximately twelve months earlier, Tom was in full control of his faculties, and knew and approved of the earlier will dated 15 December 1998.

 Based on the written notes of Smyth; the causes of death as contained in the Death Certificate; and the evidence of Tom’s longstanding health problems by his doctor, it is probably surprising that Justice de Jersey ruled in favor of Smyth and the earlier will.

The question might well be asked – Did de Jersey in finding testamentary capacity as at

1 December 1999 was not warranted, but declaring for the force and validity of the will dated

15 December 1998, make the right decision?

 Matters for further reflection -

 . Smyth as the defendant in the case, admitted he had some reservations as to the testator’s

  capacity when he executed the earlier will         

 . For many years preceding Tom’s death, as noted by his treating general practitioner Dr.

  Clark, the testator suffered short term memory loss. A scan in 1996 showed substantial

  carotid artery disease. Over the years the testator experienced multiple small strokes and a

  probable major stroke in the mid to later part of 1996

 . The evidence of the nurse carer Carole Crozier, who observed the testator regularly from

  1995 until early 2000, confirmed his deterioration, with increasing forgetfulness and


 . Justice de Jersey accepted Dr. Chai’s view that when admitted to hospital on 8 December  

  1999, the testator was suffering vascular dementia reaching back quite some time

  . In brief, the testator was at that time, a long standing sufferer from dementia

 Coupled with the fact the Death Certificate stated the testator had experienced multi - infarct dementia dating back to 1996, along with previous strokes, and the many statements attributed to the testator that appeared irrational between 1996 and 1998, and considering Justice de Jersey rejected the evidence of two solicitors that the testator between 17 November 1999 and 1 December 1999 appeared to be of sound mind, a question mark must hang over the ultimate decision handed down.

 In his summing up of the case, Justice de Jersey appeared to rely heavily on precedents set many years before, coupled with evidence provided by a specialist doctor on the ageing process and a psychiatrist, both of whom could not with certainty say categorically, that the testator  did not, or could not, have had testamentary capacity on 1 December 1999.

He also admitted to accepting the evidence of Smyth who ‘sufficiently clearly established to him 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’. However, no evidence was given to substantiate just how Smyth was able to prove that Mr. Jowett, both prior to, and on the day of signing the 15 December 1998 will, was of sound mind and had testamentary capacity.    

Chapter 18