Cook v Westwood

In the case of Cook v Westwood, the dispute involved the interpretation and admissibility of an unsigned and unwitnessed document intended to be a will. The matter was heard in the Supreme Court of Victoria. The plaintiff, Cook, sought to have the document admitted to probate as the will of the deceased, Westwood. The legal issues before the court included whether the original will had been lost, whether the presumption of revocation applied, and whether the unsigned and unwitnessed document was intended to be Westwood’s will. The court also considered whether the notice served under the Evidence Act 2008 was reasonable and whether section 9(3) of the Wills Act 2008 overrides the hearsay provisions of the Evidence Act 1997.

The court first addressed the issue of whether the original will had been lost and if the presumption of revocation applied. It found that the presumption of revocation ‘animo revocandi’ did not apply as there was no evidence that Westwood intended to revoke the original will. The court also considered the intent behind the unsigned and unwitnessed document, concluding that Westwood intended it to be his will. The court found that the provisions of the Wills Act 2008 and the Evidence Act 1997 should be read together and that the notice served was reasonable under the circumstances. The court determined that section 9(3) of the Wills Act 2008 did not override the hearsay provisions of the Evidence Act 1997, but allowed for the informal will to be admitted to probate.

The court concluded that the unsigned and unwitnessed document was intended to be Westwood's will and should be admitted to probate. The court’s reasoning was based on the intent of the testator, the absence of evidence for revocation, and the proper interpretation of statutory provisions. The court found the notice provided was reasonable and that the statutory provisions allowed for the admission of the informal will. The final orders were made in favour of the plaintiff, Cook, permitting the unsigned and unwitnessed document to be admitted to probate as Westwood’s will.