Nick Walker, lawyer with DBA Lawyers, told SMSF Adviser the case of Kemp v Findlay [2024] NSWSC 902 (26 July 2024) was an unusual one where the court stepped in and “put aside the usual requirements” for the proper execution of a will.
However, he said it is risky to rely on the court stepping in, so the best practice remains that a will is executed per state laws.
The case involved determining the validity of an informal will which had not been formally executed at the time of the deceased’s passing.
The facts of the case stated that businessman Andrew Findlay, who died in a boating accident in 2023, had amended his will in 2019 following the separation from his partner, Elizabeth Kemp, leaving his $13.5 million estate to his three children. This 2019 document was drafted by Findlay on his computer but never printed or executed.
Findlay’s prior 2015 will left the entire estate to Kemp. Kemp argued that as the 2019 document was not executed per the relevant law, the 2015 will was still valid and that she was entitled to all of Findlay’s estate.
Findlay and Kemp separated in May 2019.
In June 2019, Findlay went to his family law solicitor who provided him, among other things, a four-page checklist explaining the family law process. The first item of which was “change your will”. Furthermore, Findlay drafted the will himself and “this was taken into account in the final decision by Rees J,” Walker said.
After Findlay had drafted the 2019 document, he informed Kemp, the new executor of his estate, and his family law solicitor of his updated will.
In 2021, Findlay and Kemp finalised their family law matter, whereby Kemp had received a lucrative settlement. She was paid $4.6 million along with child maintenance of $3,000 a month plus school fees, extracurricular expenses, health insurance and medical expenses, spousal support of $2,500 a month and an expenses-covered car.
The settlement also included a mutual release of claims on Findlay’s estate, which included a Centennial Park house, various companies and a family superannuation fund.
The facts continued that following Findlay’s death, when Kemp was contacted by Findlay’s executor (as appointed by the 2019 document), she learned the executor was relying on the 2019 will rather than one signed in 2015.
Kemp subsequently moved into her former partner’s home, changed the “keypad code to the front door”, and transferred the registration of the Mercedes AMG into her name, claiming they were hers as sole beneficiary of the 2015 will.
In her decision, Rees J stated she had been asked to consider whether the requirements of s8(2)(a) have been satisfied and said that “admitting the 2019 document to probate notwithstanding that it has not been executed in accordance with the requirements of the Succession Act will have significant consequences for Ms Kemp, on the one hand, and the children, on the other”.
“An important feature of the 2019 document is that it was not a draft prepared by Ms Grimes [solicitor] to be considered and approved by Mr Findlay, but prepared by the testator himself. As such, it may be distinguished from cases where the testator voiced approval of a will prepared by a solicitor but had yet to see the final version,” she said.
“I conclude that Mr Findlay thought that the 2019 document would ‘do the job’ even if it had not been signed. Whilst Mr Findlay was not aware of the legal necessities of making a valid will, as a businessperson, he proceeded to make the necessary changes proficiently and promptly informed key stakeholders of what he had done.”
Rees J said she was “satisfied having regard to the document itself, the extent of Mr Findlay’s knowledge and understanding of the requirements for making a valid will, his statements to others and the surrounding circumstances that, in June 2019, Mr Findlay actually intended the 2019 document to operate as his will, without more”.
“By his acts and words, Mr Findlay ‘adopted’ the document as his intended will and he referred to the document as a will to people who needed to know. I am satisfied that Mr Findlay intended the 2019 document to form his will,” she said.
Walker said it is rare for the court to put aside the relevant requirements of the will, but in this case, there was abundant evidence that Findlay had intended the 2019 document to be his last will. Nevertheless, “it is vital that wills are executed properly to reduce the opportunity for legal challenge.”
“Each Australian jurisdiction has their own laws for the proper execution of a will, but broadly, it involves the will being printed off and executed by the testator in the presence of at least two independent adult witnesses who must also sign the document,” he said.
“Those witnesses should not benefit under the will. There have been similar cases where the court has ruled differently if the requirements have not been upheld. This is a very strict area of law,” he added.
As Walker mentioned in a recent article in SMSF Adviser, while the use of electronic execution for legal documents is easy, there are still legal uncertainties and the courts typically take a conservative approach to document execution. Every jurisdiction in Australia has different legislation.
