Chapter 5. Questions as to Validity
The validity of a will is solely dependant upon the circumstances existing at the time it is made. Legal implications rarely occur as probate is sought and granted in the vast majority of cases promptly, especially where no challenge is made.
The validity also depends on a range of circumstances which must be followed if it is to be accepted as evidence of the wishes and intentions of a deceased person.
The ‘Successions Act’ provides that for the will to be a valid instrument, it must be in writing, must be signed by the person making it, must be dated on the day it is signed, and must be witnessed by two persons present at the time the testator signs. When it is longer than one page, the testator and the witnesses should also write their names, or at the very least initial each page. If the above formalities are not complied with, the will may not be valid.
Anyone over 18 may make a will, and it must be made of the testator’s free will and without pressure from other parties – a married person under 18 may also make a valid will.
To make a will, a person must be of sound mind, memory and understanding, and the principal person witnessing the will must be certain that the person had capacity at the time it was made. This can be a contentious point, as a person with a vested interest can challenge a will on the pretext they have decided the testator was not of sound mind when making it. This could result in considerable legal costs.
This happened to be the case in Whiteside v Smyth, and is the reason for the detailed explanations so far. These explanations should assist the reader in determining if, in their opinion, the presiding Judge was in fact correct in his eventual findings that saw the lawyer win the case against the pensioner. In listing the events leading up to the number of wills made by Tom, it will be seen that there were many inconsistencies as he decided who was, or was not worthy of receiving a bequest from his estate.
Records reveal that Smyth and Tom communicated with each other on many occasions between 1995 and 1998, to finally settle on a list of beneficiaries who would ultimately benefit on Tom’s passing. The number of hours spent in arriving at the final will would leave most people asking ‘what went wrong that caused so much uncertainty over such a short space of time’.
Primarily it was due to the very nature of the client who could not make up his mind, was indecisive, concerned, worried, and at times quite ill, both mentally and physically.
Transcript from the eventual trial, and details on Tom’s Death Certificate indicate that he had suffered from multi - infarct dementia for some five years from mid 1996, and this no doubt led to his uncertainty between then and 15 December 1998, the date of the last will prepared by Smyth. These infarcts first came to the attention of Whiteside when he had Tom X-rayed some time prior to his death. He was informed by the medical staff that they were probably the result of a car accident Tom had in 1991 or thereabouts.
This raises a new dimension as to whether any of the wills would have passed the questioning of expert counsel in a court of law – especially when one considers some of the comments made by Tom. It is possible the validity of several of the wills prepared by Smyth might have collapsed under strong questioning.
Smyth’s own notes record the following statements based on his personal observations of Tom during interviews –
‘Tom is ill – Tom has been very sick – I think Tom understands what he is doing – he is indecisive and impetuous – he worries about it but understands – I still think he knows what he is doing – Tom hasn’t sorted out exactly what he is going to do – Tom can’t write down what he wants, he has it in his head – Tom fell, doesn’t know what happened – Tom can’t remember anything and afraid of dying – Tom getting desperate and tired of living – Tom rambling, very ill, doesn’t know where to sign’ .
To a professional person, especially a lawyer, these observations should have prompted an immediate re-action that Tom’s mental condition at the time of making the many wills was not that of a man possessed of all of his faculties.
Although Smyth prepared the wills and had Tom sign them, several made no provision for the distribution of all of the estate, resulting in a scenario whereby if Tom died between the date of one will and the next, it is possible the unallocated portion of the estate would end up in the State ‘coffers’.
In several of those signed, the percentage left unallocated was due to the uncertainty of Tom as to who should be the ultimate parties to benefit. This does not of itself make them invalid, but it could have caused problems further down the track.
Tom’s mental condition and understanding at the time of signing was never questioned by Smyth. Certainly there appears to be no record of Smyth seeking advice from a medical practitioner as to Tom’s testamentary capacity at the time of any of the signings.
To highlight Tom’s dilemma in reaching a conclusion as to who was to benefit from his estate, the records show that on numerous occasions, he changed his mind.
The Blue Nurses Association for instance was not named in any of the first seven wills, but in subsequent ones, they were to be left varying amounts which changed constantly.
Crozier (sometimes known as Carole Crozier –Jung, a Blue Nurse Case Sister administering care from the home of Tom) was also named as a beneficiary in different wills, but again her bequest was to change regularly. She was later to receive the largest individual cash bequest made by Tom. She regularly conferred with Smyth, but in evidence denied she was aware that she had been named as a beneficiary in the 15 December 1998 will.
The Whitesides were no different than the others. They were left –
. 10% of the estate in June 1996
. 5% in August 1996
. 5% in October 1996
. 5% in November 1996
. 5% in January 1997
. Iris Whiteside was granted $6,000 in August 1997
. The bequest was reduced to $3,000 in November 1997
. The amount remained at $3,000 in March 1998.
However, in the final will drawn up by Smyth on 15 December 1998, neither Bruce nor Iris Whiteside was named as a beneficiary. These ‘in again, out again’ circumstances were to be repeated over and over, with most proposed legatees suffering similar changes to originally planned bequests.
The presiding Judge in the trial (Justice de Jersey CJ) was to eventually declare ‘For the full force and validity of the earlier will dated 15 December 1998’ and hence his conviction that Tom must have known exactly what he was doing on that particular date. But a question mark must surely have hung over the many and varying changes from one will to another, and the longstanding condition of Tom’s health as described by his personal physician, and as mentioned in the Death Certificate.
Whiteside continued to claim the final will signed by Tom on 1 December 1999 was in fact equally as valid, if not more so, than the one approved by Justice de Jersey.
That will had been drawn up by Ms. Canning of the legal firm Whitehead and Payne, and the findings would later indicate her evidence was not accepted by de Jersey as being conclusive.