“This oversight sparked a fierce court battle between his former partner and his cousin on behalf of his children, a battle that recently culminated in a significant ruling from the NSW Court of Appeal.”

He said that while the Findlay case deals with a will, there are countless cases that involve incomplete binding death benefit nominations in an SMSF, and the Succession Act 2006 (or equivalent) may not help, as SMSFs rely on the SIS Act and trust deed.

“Also, a nomination from an SMSF to a member’s Legal Personal Representative may then lead to an estate challenge,” Shorte added.

The facts of the Findlay case presented to the court were that in 2015 Findlay had a formal will leaving his estate to his then-partner, Elizabeth Kemp. In 2019, after separating from Kemp, he drafted a new will on his computer. This document left his estate to his three children and appointed his cousin, David Findlay, as executor.

Crucially, it was never printed, signed, or witnessed. The dispute arose following Findlay’s death in 2023, with both Kemp (relying on the 2015 will) and David Findlay (relying on the 2019 document) applied for probate.

The court applied section 8 of the Succession Act 2006 (NSW), which allows informal documents to be treated as a will if the court is satisfied the deceased intended it to be their final will.

It found the 2019 document did reflect Findlay’s clear intentions and admitted it to probate. Kemp was also ordered to pay 75 per cent of the children’s legal costs.

Shorte said there are five key lessons that advisers and SMSF trustees can take from Kemp v Findlay, the first being to never rely on Section 8 as a planning tool.

“The big takeaway is not that ‘unsigned wills are fine’.” It is that Section 8 is a remedial, last-resort solution, not a substitute for proper execution.”

“While the court can validate informal documents, the process is uncertain, expensive, and hinges on convincing a judge of the deceased’s intention. Advise clients that proper signing and witnessing is the only way to guarantee certainty and avoid a fight.”

For SMSFs, while Section 8 does not apply to BDBNs directly, a BDBN can be subject to a family provision claim under the Succession Act 2006, where the court can, in certain circumstances, declare a death benefit as part of a notional estate to meet court-ordered provisions.

“The distribution of a superannuation death benefit is primarily determined by the rules of the superannuation fund and the Superannuation Industry (Supervision) Act 1993 (SIS Act). Section 59(1A) of the SISA, in conjunction with Regulation 6.17A of the SIS Regulations, sets out the strict technical requirements for a BDBN to be valid.”

“As many SMSF members direct their superannuation to be dealt with via their wills, this means there is more room for error as the BDBN and/or the will could be challenged.”

The second key takeaway is to document everything and communicate clearly, as it was Findlay’s failure to clearly communicate his final intentions to his solicitor and family that directly fuelled the dispute.

Shorte said it is wise to advise clients to formally instruct their solicitor immediately after a major life event and to clearly communicate their wishes to their intended executor and key beneficiaries to prevent surprise and doubt.

“With a BDBN, the member should firstly decide if a BDBN is the preferred option or do they deliberately wish to leave the decision and flexibility to the remaining trustees of the fund?” he added.

“For pension accounts, you may opt to use reversionary pensions for more certainty. It is also vital to complete the BDBN, preferably non-lapsing, and sign and have it witnessed, then submit the signed form to the trustees of the SMSF and have the trustees minute the receipt and acceptance of the BDBN.”

For added security, Shorte said, the SMSF accountant/administrator should be provided a copy and update the SMSF software they use to display that nomination in the annual financials so it can trigger a reminder to review them.

The third takeaway is to include regular estate plan reviews and updates to wills and BDBNs.

“Proactively schedule reviews in annual planning reviews with clients, especially after major life events to ensure their documents reflect their current circumstances and relationships,” he said.

“For SMSFs, review the current nominations and see if strategies like withdrawals and recontributions now mean that funds can be directly left to adult children or others because the taxable component has been reduced.”

The fourth takeaway is to warn clients against DIY drafts and to counsel clients strongly against creating draft wills or notes without immediate formalisation.

“You should also advise clients not to store important documents haphazardly. An unsigned draft can be misinterpreted as a final will, creating confusion and conflict,” Shorte said.

“For BDBNs, be careful with templates, and if you are using one provided by a trust deed provider, make sure it meets your client’s needs or have a lawyer draft a more personalised one.”

Finally, Shorte said, clients should be made aware of the cost of litigation and the benefits of comprehensive, professionally executed estate planning and SMSF documents as an investment in protecting their legacy and their family’s future.

“Kemp v Findlay is a stark reminder that the rules of formal execution exist for a reason: to provide clarity and prevent disputes.”

“While the court’s flexible approach ensured Findlay’s intentions were ultimately honoured, it came at a significant financial and emotional cost to his family. As advisers, our role is to steer clients away from this precarious path. By emphasising proper execution, clear communication, and regular reviews, we can help them ensure their wishes are carried out smoothly, preserving their assets and their family’s harmony.”