Chapter 9.  Probate and the Onus of Proof


 The stage was now set for an even bigger confrontation between the two protagonists, as Smyth, upon the death of Tom in July 2001, could see the financial advantages of challenging the legitimacy of the one will in which he had not been involved. Whether his determination was driven by an opportunity to cash in as Executor to the earlier will of 15 December 1998, or whether he believed he was protecting the interests of both the charities and individual beneficiaries named in that will, can only be speculative.

The only other motives were either to prove his observations that Tom was not cognitive at the time he made the 1999 will, even though he had not seen Tom for some time, or to ensure that the Whiteside’s (or at least one of them) who had been named in every will of Tom other than the will of 15 December 1998, would leave the scene empty -handed.

 In the early days of Tom’s hospitalization in late December 1999 and early January 2000, Smyth became more heavily involved with Crozier as evidenced by their collaboration and consequent agreement that Tom required specialist treatment in a nursing home. This only galvanized Whiteside into action, as he had repeatedly promised Tom he would never be placed in institutionalized long term care whilst he had anything to do with him. The authorities agreed with Whiteside, as Tom was eventually released into his care.

 A will is almost sacrosanct to some persons, a document that should remain private and confidential at all times until the passing of the testator. It was of interest to Whiteside, bearing in mind his one or two rather heated conversations with Crozier, to learn that she was the largest single individual beneficiary in the last will prepared by Smyth. Whilst no connotation was placed on this fact, it nevertheless raised questions in Whiteside’s mind as to why Tom would suddenly increase her share of the estate, yet suddenly ignore his wife, who he had previously held in high esteem for her loving attention and care.

 Armed with more evidence than he could have hoped for, Smyth set into motion his plan to contest the 1 December 1999 will, and upon Tom’s death he lodged an application for probate based on his conviction that Tom lacked capacity and understanding at the time of execution.

  There were issues between Whiteside’s solicitor and Smyth concerning the application to the court for probate that puzzled Whiteside. He was to become the plaintiff and Smyth the defendant. This no doubt is exactly what Smyth was angling for as it followed that Whiteside as plaintiff would be required to prove that Tom was capable and of sound mind at the time of making the 1 December 1999 will. On the other hand, Smyth had only to discount any claims made that Tom did in fact have capacity on the day he signed.

 Probate is defined as the document by which the court recognizes the authority of an Executor to act under a will. A grant of probate amounts to an official recognition by the court of the right of personal representatives to administer the estate of a deceased person, and also passes ownership (title) of all of the assets of the deceased to them, so that they can carry out the terms of the will. When a dispute arises as in the case of Whiteside v Smyth, it followed that the court would have to decide which party would be granted probate.

 At this point, it is perhaps interesting to note extracts from the transcript of the trial on the very first day of the hearing concerning onus of proof, as they indicate the uncertainty in this case, as to the manner in which the trial would proceed.

 HIS HONOR : To Mr. Conrick (Whiteside’s barrister)

‘All you are saying is that you are going to assume the onus of proof, is that correct’?

 MR. CONRICK : ‘I am Your Honor’

 HIS HONOR : ‘You don’t have any problem with that Mr. Clarke (Smyth’s barrister) surely’

 MR. CLARKE : ‘No, I think in fact, the position- (Justice de Jersey interjects here)

 HIS HONOR : ‘You don’t have to justify, you just go and do it’

 MR. CONRICK : ‘Subject to this one matter that I am about to raise, and that is the qualification as to the burden of proof, is that it appears that the effect of Sections 5,7 and 15 of the Guardian and Administration Act is, in fact, to overturn the conventional probate law and to provide a rebuttal presumption of capacity in all cases. I simply do no more than flag this at this point Your Honor’

 HIS HONOR : ‘But you just embrace the onus of proof. You’re coming to me and saying, we are going to prove that on December 1 1999, he had capacity

 MR. CONRICK : ‘Well Your Honor, with respect, as I said, subject to – (Justice de Jersey interjects again)

 HIS HONOR : ‘Your not relying on Sections 5,7 and 10

 MR. CONRICK : ‘No, with respect, subject to one observation, that was the – appeared to be the position’

 HIS HONOR : ‘Right. I don’t understand you’

 MR. CONRICK : Sorry’

 HIS HONOR : ‘I thought you were saying in this case, because there were some grounds for suspicion, I’m going to undertake to prove that he had capacity at the relevant date, even though Sections 5, 7 and 10 would give me a presumption of capacity, leaving it then to Mr. Clarke in the usual way to rebut as to what would happen in a probate action’

MR. CONRICK : ‘Sorry Your Honor, what I had hoped I had said was that there were circumstances which, suspicious circumstances which, subject to one observation, cast upon the plaintiff the burden of proof. The observation is that it appears that the Guardian and Administration Act changes what had been clear probate practice’

 HIS HONOR : ‘I don’t understand that, but I don’t want to be involved in some academic dispute. You are either going to prove it or not, otherwise you will simply tender the will and sit down and pass over to Mr. Clarke. But you are not going to do that, is that right or not’?

 MR. CONRICK : ‘Your Honor is correct in that I suppose that’s what I ought to do if I seek to rely on presumption. I hadn’t – I must confess, I hadn’t thought that through clearly enough. I had flagged whether the Section reverses the onus to my learned friend, but I had erroneously, perhaps, considered that that was a question which would be resolved when all the evidence was in’

 HIS HONOR : ‘It doesn’t matter, does it, you either undertake the onus of proof, or you don’t’

 MR. CONRICK : ‘I certainly don’t undertake an onus that I don’t have to carry, Your Honor’

 HIS HONOR : ‘I haven’t read these Sections. I know nothing about the Sections. It’s up to you really, you’re the lawyer, decide what you want to do’

 MR. CONRICK : ‘Your Honor, could I ask Your Honor to indulge a short adjournment while I discuss the matter with my learned friend’

The results of that discussion were not on record, but what became abundantly clear was the matter of ‘onus of proof’ was not mentioned again. What transpired may never be known, but Whiteside was concerned that so much time and energy had been used in legal jargon and debate, that really had nothing to do with the legitimacy of the 1 December 1999 will.

 He was later to question the ability of these highly qualified legal people, who repeatedly seemed unsure of procedural matters that even a young graduate out of law school would understand. The matter of ‘billing fees’ was constantly on his mind, as at that stage there was no certainty that costs would be awarded against the estate.

  Crucial to a decision relating to the outcome of any trial, is the expertise and ability of counsel to have at their fingertips all the relevant evidence and argumentative case history that might win the case for their clients. Quotations from the above transcript of the trial, suggest a lack of certainty by those involved concerning the onus of proof. Similarly, reference to sections of the Guardian and Administration Act appeared to have His Honor at a distinct disadvantage when having to admit he ‘hadn’t read the sections referred to, and that he knew nothing about them’.

 Utterances such as –

 ‘I think – I don’t understand – sorry – I thought - I suppose that’s what I ought to do – I must confess I had not thought that through clearly – I had hoped I had said – I certainly don’t undertake an onus that I don’t have to carry’ did not exactly excite Whiteside into believing that this array of legal talent before him, had what it takes to ensure that a fair and just trial would occur.



Chapter 10