This high-profile court case highlights the importance of correctly executing a Will.

On 26 July 2024, the Supreme Court of NSW made a ruling in the high-profile case Kemp v Findlay [2024] NSWSC 902 that the multi-million dollar estate of the deceased, Andrew Findlay, was to be inherited by his three children and not their mother, Elizabeth Kemp, the deceased’s ex-wife, in accordance with the deceased’s intentions as recorded in his unsigned draft Will.

In this case, Mr Findlay drafted a 2019 document outlining his testamentary wishes but did not formally sign it (2019 Will). The Court had to determine whether the document could still be treated as a valid Will under section 8 of the Succession Act 2006 (NSW), which allows informal Wills to be admitted if there is sufficient evidence of the deceased's final intentions.

While the court eventually upheld the informal document as valid, the case highlights how failing to meet formal requirements may lead to costly legal disputes and uncertainty. It emphasises that getting a Will properly signed and witnessed is critical to ensuring that your final wishes are respected without complications.

Facts of the Case

Mr Findlay passed away in a boating freak accident in 2023. Several years before his death, in 2015, he prepared a Will for his estate worth $13.5 million to go to his partner, Ms Kemp (2015 Will). This Will was written and signed by Mr Findlay in 2015 in the presence of two witnesses.   

In 2019, Mr Findlay and Ms Kemp separated. In the same year, Mr Findlay amended the 2015 Will to record that his entire estate would go to his children and that Ms Kemp should be excluded entirely (2019 draft Will). Mr Findlay drafted the 2019 Will on his computer, but it was never printed or signed, and he died a few years later.

Contentions by parties

Ms Kemp commenced proceedings seeking a grant of probate from the Court of the 2015 Will, which was prepared before Mr Findlay and Ms Kemp’s separation. The 2015 Will complied with the strict witnessing requirements under the NSW state legislation. 

Ms Kemp argued that the 2019 draft Will should not receive probate as it was never signed by Mr Findlay, even though he was aware of the formal requirements to execute a Will. She also claimed that he had conflicted feelings about separating.

The defendant in the proceedings, Mr Findlay’s cousin and executor of the 2019 draft Will, filed a cross-claim, seeking a grant of probate from the Court of the 2019 draft Will, contending that this 2019 draft Will embodied Mr Findlay’s testamentary intentions and was intended to be his final Will.

Relevant state legislation

In NSW, the Succession Act 2006 (NSW) (Act, broadly provides that a Will is invalid unless it is in writing, signed by the testator, and witnessed by two people.

However, section 8 of the Act allows the Court to dispense with these requirements in certain situations. Relevantly, where there is a document that purports to state the deceased’s testamentary intentions, this document can form the deceased’s Will if the Court is satisfied that the deceased intended it to form his Will.

Court’s Considerations

1. The Court held that it was not contentious that the 2019 draft Will purported to record Mr Findlay’s testamentary intentions. The issue was whether Mr Findlay intended the 2019 draft Will to form his last and final Will.

2. The Court concluded that Findlay did not know that a Will had to be executed to be valid but was satisfied that Mr Findlay intended the 2019 draft Will to operate as his final Will through his words and actions. His words and actions included the following:

1. making the necessary changes to the Will proficiently

2. promptly informing key stakeholders about the 2019 draft Will, which involved:

1. informing Ms Kemp, the person most affected by the 2019 draft Will

2. sending a copy of the 2019 draft Will to the defendant, who was the new executor and communicating to him, “If I went under a bus between now and then, my wishes would at least be clear” and that it was “all sorted. I intend to get it signed. It’s all taken care of”, showing that if Mr Findlay were to die before formally executing the 2019 draft Will, then he regarded the 2019 draft Will to record his intentions.’

3. informing his family lawyer dealing with the separation matter that he had changed his Will and
4. he expressed the same understanding to his friend, Ms Roth.

Outcome

The Court ordered that the 2019 draft Will receive probate and that Ms Kemp pay for Mr Findlay’s costs of the proceedings.

Key Takeaways

This case highlights the importance of ensuring that Wills are validly executed following the strict execution and witnessing requirements under the applicable state legislation. Although the deceased’s former partner was ultimately unsuccessful in this case, the legal proceedings and the risk attributed to relying on the Court to make a favourable decision could have been avoided had Mr Findlay correctly executed the 2019 draft Will.

If you have any questions about this article or your estate planning, please contact Danny Adno or Ann Kwak or speak with a member of our Business, Corporate & Commercial Team.