JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2017
DATE OF JUDGMENT:	31 August 2017
CASE MAY BE CITED AS:	Cook v Westwood & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 509

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WILLS AND ESTATES - Application by plaintiff to have an unsigned and unwitnessed will admitted to probate - Whether original will lost and presumption of revocation ‘animo revocandi’ applies - Whether testator intended the unsigned and unwitnessed informal will to be his will - Wills Act 1997, ss 7, 9 - Re Stuckey [2014] VSC 221

PRACTICE AND PROCEDURE – Whether notice pursuant to s 67 Evidence Act2008 is reasonable - Notice served three business days prior to hearing - Puchalski v R - Singh v New Ridge Property Group Pty Ltd – Whether s 9(3) Wills Act 2008 overrides the hearsay provisions of the Evidence Act 1997 – Provisions of respective Acts to be read together.

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APPEARANCES:	Counsel	Solicitors
For Ms Cook	Mr PA Cassidy	Carew Gartland McClelland
For the Defendants	Mr N Biviano	MDM Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Family background....................................................................................................................... 1
The 1998 document....................................................................................................................... 3
Agreed facts................................................................................................................................... 4
Objections to evidence................................................................................................................. 8
Can Ms Cook rely on a notice pursuant to s 67 of the Evidence Act?..................................... 9
Does s 9(3) of the Wills Act override the hearsay provisions in the Evidence Act?............ 13
Is the 1998 document a copy of the will of the deceased?.................................................... 17
Ercole’s evidence............................................................................................................... 17
Mr Azo’s evidence............................................................................................................. 19
Ms Peasnell’s evidence..................................................................................................... 19
Consideration..................................................................................................................... 20

Is the 1998 document an informal will of the deceased?...................................................... 22

Conclusion......................................................................................................................................... 27

HER HONOUR:

Introduction

Donald Alfred Westwood died on 21 April 2011 (‘the deceased’) leaving an estate valued at approximately $480,000.[1] The deceased left an unsigned and unwitnessed copy document dated 11 May 1998 (‘the 1998 document’) that bears his name, is drawn as a will and expresses testamentary intentions.
[1]This is the estate’s value at the time Ms Cook affirmed her affidavit, which exhibits an inventory as to assets and liabilities: Exhibit ‘SGC-5’ to the affidavit of Susan Gail Cook affirmed on 23 June 2015.

The issues to be determined are:

(a) whether the 1998 document is a copy of a lost will of the deceased and, if so, where the original will has not been found at the time of the death of the deceased, should it be presumed that the deceased destroyed it with the intention of revoking it ‘animo revocandi’; or

(b) whether the 1998 document is the informal will of the deceased.

If the 1998 document is a copy of the deceased’s lost will, the defendants allege that that the presumption of revocation ‘animo revocandi

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v Westwood

Details

AGLC: Cook v Westwood [2017] VSC 509
Case: [2017] VSC 509
Decision Date: 31 August 2017

CaseChat Overview and Summary

The parties in Cook v Westwood involved a dispute over the validity of a will. The plaintiff, Cook, sought to have an unsigned and unwitnessed will admitted to probate, while the defendant, Westwood, opposed this. The court was required to decide whether the original will had been lost and whether the presumption of revocation by the testator’s intention to revoke applied. Additionally, the court needed to determine if the unsigned and unwitnessed informal will was intended by the testator to be his final will.

The legal issues included whether the presumption of revocation under section 7 of the Wills Act 1997 applied, given that the original will was lost. The court also needed to consider if the unsigned and unwitnessed informal will met the requirements of section 9 of the Wills Act 1997, which allows for the admission of a will that does not comply with formal requirements if it can be shown that the deceased intended it to be their will. Furthermore, the court had to examine whether section 9(3) of the Wills Act 1997 could override the hearsay provisions of the Evidence Act 1997.

The court found that the original will was indeed lost, thus triggering the presumption of revocation. However, the court also determined that there was sufficient evidence to show that the testator intended the unsigned and unwitnessed informal will to be his will. The court held that section 9(3) of the Wills Act 1997 could override the hearsay provisions of the Evidence Act 1997, allowing the informal will to be admitted to probate. The court also found that the notice provided by the plaintiff was reasonable, served three business days prior to the hearing, aligning with the requirements of the Evidence Act 1997.

The court ordered that the unsigned and unwitnessed informal will be admitted to probate, recognising it as the valid will of the deceased. This decision ensures that the testator's intentions are honoured, despite the informal nature of the will.

Orders