Chapter 6. Whiteside v the Lawyer
In a world where academics believe they alone understand the rules and regulations of society, it is not easy to take on the ‘big boys’ unless one has a sense of belief and pride in one’s self. The real problem is that money often dictates the actions one can take to right a wrong, or to test the will of those who seek to gain financially by questionable practices.
In the case of Whiteside v Smyth, involving a challenge to test the validity of Tom’s last will, it was inevitable that Smyth would seek probate in order to prove he was the rightful Executor under the document he had prepared for Tom to sign on 15 December 1998.
On the other hand Smyth did not realize that in order to prove his position, he would have to come up against the determination and ‘street-fighting’ qualities of Whiteside, if he wanted to cash in on his claim that the will of 1 December 1999 was not valid.
As a lawyer, Smyth would have been aware that he had nothing to lose. Even if he did lose the case, it was almost certain costs incurred would be a charge against the estate. The financial reward in fees earned at the court hearing would then add considerably to the fees he had already earned by the making of so many wills. He would also have considered the additional income that would be derived if the case were won, as he would then be able to carry out the duties of administering Tom’s estate as his Executor.
Due to circumstances, it became readily apparent that Whiteside would be charged with the responsibility of proving that Tom was of sound mind, memory, and understanding at the time of making the will of 1 December 1999. He would therefore be the plaintiff at the trial, whilst Smyth would be able to sit back as the defendant, and allow his counsel to destroy whatever evidence Whiteside’s lawyers were able to introduce.
The scene was set for a bitter battle for supremacy, which was fought as much outside the court as inside. The difficulty for the plaintiff’s side was that the 1999 will bequeathed the whole of the estate to Whiteside, and that raised a certain amount of pre-calculated suspicion in the eyes of the defendant’s team, and the presiding Judge.
Whiteside was not about to be walked over by some ‘fancy pants’ lawyer, who he new from his many discussions with Tom, had not measured up to his expectations.
The hearing between the two parties was about to take place with no holds barred. In the one corner was the smooth talking well educated Smyth with his degree in law, whilst in the other corner was the rough diamond Whiteside, a painter and paperhanger by trade.
It wasn’t until the Whiteside’s were overseas in New Zealand during the early days of December 1999, that Smyth made his move. It seems he had been told that Whiteside had been given an Enduring Power of Attorney (EPOA) to administer the affairs of Tom.
Whiteside was so concerned over Tom’s welfare whilst he and his wife were going to be away, that he arranged for the Aged Care and Assessment Team (ACAT) District Supervisor, to call on Tom with a view to ensuring he was receiving suitable care. He drafted a letter addressed to the supervisor, advising of his EPOA, and at the same time giving particulars of where he could be contacted in New Zealand if the need arose.
In the letter he informed the person of his promise to Tom that he would not be sent to a nursing home. The letter dated 7 December 1999 was delivered to Tom’s home and given to a Blue Care domestic with strict instructions it be given to the ACAT representative. The letter was never received by the ACAT representative, nor was it ever revealed what happened to it. However, Whiteside suspects his letter was passed over to Smyth by someone attending Tom, and that was how he learnt of the EPOA given to Whiteside by Tom.
Things moved rather rapidly as far as Tom’s future was concerned. In fact without Whiteside’s knowledge, Tom was hospitalized the day after he left for New Zealand, and when Smyth found out he immediately rang the hospital to enquire about Tom’s health, and to inform the hospital staff that he was Tom’s solicitor.
Smyth it seemed was planning his strategy to undermine the influence of Whiteside.
In the best interest of Tom, the hospital arranged a meeting in the absence of Whiteside who was still overseas. The meeting took place on 16 December 2000 - in attendance were Smyth, Crozier, an ACAT and Adult Guardian representative, and senior hospital personnel.
Whilst the discussion centered round the difficulties of Tom being released back into his home, Smyth and Crozier seemed more concerned about the EOPA Whiteside was reported to have been given. They queried its validity without having seen it, they enquired as to when it had been signed, and also questioned whether the Attorney given was in the best interest of Tom. Both expressed their wish to be the contact persons for Tom, thereby ignoring the EPOA given by him to Whiteside.
On December 19, 1999, Whiteside eventually was able to speak with hospital staff, and advised them of his intended arrival back on the Coast on 5 January 2000.
A further meeting was arranged (with Whiteside in attendance) for 6 January 2000 for the main purpose of informing those present of Tom’s condition.
Discussions centered round Tom’s current level of cognitive functioning, and his possible return home or to a hostel type accommodation unit.
Crozier expressed concerns about Tom’s release back into a home situation, and the hospital team in attendance affirmed that if released, Tom would need twenty four hour a day care.
On the request of the hospital’s social worker, Whiteside produced the EPOA Tom had executed in his favor, and it was noted that a section of the document had apparently not been signed and witnessed correctly. Based on this understanding, Smyth indicated that in his opinion the document was invalid and not worth the paper it was written on. It was agreed a copy be obtained from Canning the solicitor who prepared the document, for the sole purpose of determining its validity using the hospital’s own solicitor.
The response came back that it was in fact both legal and valid, and shortly afterwards, with the approval of most present, Tom was released into the full time care of Bruce and Iris Whiteside.
It is significant that although Smyth refused to accept the legality of the EPOA, it was in fact accepted by the banks and Tom’s Superannuation Funds managers.
Of equal significance, Smyth chose not to challenge the validity of the EPOA in court which is surprising bearing in mind his earlier claim that the document was not valid. It was also his opinion that Tom was not competent at the time of signing due to lucidity problems he was allegedly having, but this was the opinion of a person not qualified to make such an observation.
A possible assumption behind Smyth not testing the validity of the EPOA in court was that if he were to challenge and fail, he could not then challenge the final will made by Tom, as they were both made at the same time. A failed challenge would lead to lost revenue to him.
The attitude of Smyth stirred Whiteside into action, and during the next two and a half years prior to the trial hearing, he was to fight Smyth all the way, ever acknowledging that as a humble pensioner he had little or no chance of victory over the might of the legal fraternity.
As the EPOA had been accepted as a valid instrument by Tom’s banks, Whiteside decided to check the records of transactions that had taken place while Smyth was acting as Tom’s solicitor, legal advisor, and confidant. It did not take him long to ascertain that a number of very large cash cheques had been drawn, and as Tom’s Attorney, he questioned Smyth as to the recipients and circumstances that led to them being drawn. Between August 1997 and July 1998, the following unexplained cash withdrawals were noted.
August 20 1997 $2,500
August 28 1997 $5,000
April 7 1998 $6,000
April 7 1998 $1,000
May 8 1998 $6,000
July 14 1998 $5,000
Smyth when asked, refused to explain these withdrawals, but further enquiries by Whiteside revealed at least one transaction of major interest to him as the appointed Attorney. It concerned a cash cheque for $1,000 drawn in favor of a person called Carole Jung. Although signed by Tom he did not personally write it, so it is possible it could have been prepared by his Blue Nurse carer at the time. Further investigation revealed that it appeared Carole Jung, Carol Crozier, and Carole Crozier - Jung was in fact the same person.
On the day the $1,000 cheque was made out, another one for $6,000 was drawn, but this time by a person with what appeared to be different handwriting. Smyth would not be drawn in on the subject.
What undoubtedly raised Smyth’s ire most, was Whiteside’s letter of complaint to the Queensland Law Society over his perceived professional conduct in matters involving Tom’s affairs. Whiteside’s main complaint centered round his refusal to hand Tom’s documents back after receiving a request directly from Tom. This refusal by Smyth was based on his firm belief that Tom lacked capacity at the time of making his demand, even though he had no proof that this was indeed the case.
Whiteside himself was later incensed when reading comments contained in the Adult Guardian file notes, which claimed Smyth had expressed his opinion that ‘Whiteside may take advantage of Mr. Jowett (financially)’ yet once again, he had no evidence or proof of this ever happening.
Just a few weeks later, on 1 March 2000, Smyth advised others of his concern that ‘Mr. Whiteside wants to acquire Mr. Jowett’s estate after death through the will, and that it would be unlikely the Adult Guardian would find any discrepancies in the financial side now’.
These statements purportedly made by Smyth infuriated Whiteside, who considered them to be libelous as he believed it was an attack on his good name. The use of the word ‘now’ in his mind, suggested the possibility that Smyth was implying he may have wrongly used Tom’s money for his own personal gain at an earlier date.
In a letter of explanation to the Law Society concerning Whiteside’s complaint about him, Smyth was able with legal argument to satisfy the Society that his actions were those of a concerned solicitor for a former client, rather than those of a person seeking to take advantage of a situation.
He confirmed his view that the EOPA granted by Jowett to Whiteside was invalid, primarily because the signature of the Attorney was not properly witnessed. This was of course later discounted by the hospital’s solicitor who accepted both its validity and legality, and hence Tom’s eventual release from hospital into the care of Whiteside.
On the matter of Tom’s capacity, Smyth used only the evidence he wanted the Law Society to hear, but in the end it was he who formed the opinion that Mr. Jowett was legally incapable of making an Attorney on the date upon which it was signed. He therefore placed himself in the position of Judge and jury outside the jurisdiction of the courts.
Smyth was cleared of having acted unprofessionally as implied by Whiteside.