In 2011, Elizabeth Kemp (the appellant) and Andrew Findlay (the deceased) began a de facto relationship, during which they had three children. In 2015, the deceased created a Will, leaving his entire estate to Ms. Kemp (the 2015 Will). Their relationship came to an end in 2019.

2019 Will

On June 4, 2019, the deceased created the 2019 Will by amending an earlier 2013 draft. He labelled the new document “ADF WILL NEW PLK.doc.” The respondent believes “PLK” refers to “Post-Lizzie Kemp.” The 2019 Will resembles a formal will and includes a revocation clause for previous Wills, specifically the 2015 Will, and an attestation clause, indicating the deceased was aware of the necessary formalities.

The document has a date of June 5, 2019, noted in two places, possibly indicating an intention to execute it on that date or for it to be effective. On ‘June 5, 2019, the deceased emailed the 2019 Will to the respondent, named the executor, stating he had yet to have it signed in front of his lawyer, Emma Grimes.

After the respondent questioned if the deceased sent the email to the correct person, the deceased replied at 12:43 PM, confirming the email was intentional. He mentioned a meeting with the appellant to discuss plans and remarked that he had appointed the respondent as the executor.

The 2019 Will appointed a different executor and changed the designated guardians for the deceased’s children. The new Will named Jason Downing SC as the primary guardian and Georgia Findlay as the substitute, diverging from the earlier Wills with different guardians. This alteration is significant considering subsequent communications between the appellant and the deceased in September 2019, as only the 2019 Will named Georgia as a guardian.

At 1:20 PM on June 5, 2019, the deceased emailed the respondent again, mentioning he hadn’t finalised the Will with his lawyer yet but wanted to ensure his wishes were clear in case of unforeseen circumstances.

On June 5, 2019, the deceased sent a document to his cousin, Mr David Findlay (the respondent), stating

“[t]his is my new Will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend to [sic].” 

Later, in reply to an email from Mr Findlay, the deceased remarked that

“[i] if I went under a bus between now and then, my wishes would at least be clear.” 

He did not print or execute this document (the 2019 Document). According to the 2019 Document, the deceased bequeathed his estate to his children and appointed a new executor and testamentary guardian.

On June 11, 2019, the deceased met with the family solicitor, Mr Wahhab, who noted that the deceased conveyed to him that he had recently changed his Will and mentioned that it would leave his assets to his children.

The appellant and the deceased were in a de facto relationship from 2011 to 2019. The appellant initially claimed they split in May 2019 but later argued for a later separation date after the deceased prepared the 2019 Will. However, the Court found that the couple separated around May 27, 2019, which the appellant no longer disputes.

The appellant references an email from the deceased sent on June 11, 2019, shortly after he drafted the 2019 Will, and evidence from Ms Monica Masero, a counsellor who worked with them individually and together starting in May 2019. These include the argument that the deceased’s feelings about their relationship were still ambiguous when he prepared the Will. The appellant contends that the June 11 email does not reflect the mindset of someone intent on completely severing financial ties with her.

Following the deceased’s death in a boating accident on July 20, 2023, the appellant contacted the respondent in an email dated August 22, 2023, concerning the deceased’s Will, asking if the deceased signed the document and if there would be any issues obtaining probate. The phrasing of her question is significant; if she used the past tense “assumed,” it suggests she was already aware of the Will, whereas using the present tense would change its implications. In reply, the respondent seemed to forward the emails related to the deceased’s Will from June 5, 2019, though the attachments were missing from the court documents.

On September 4, 2023, the appellant emailed Ms. Grimes, expressing concern that the 2019 Will was unsigned and requested the last signed one for their children’s welfare. A following email on September 8, 2023, indicated that the appellant had a falling out with the respondent and the deceased’s sister, Kate, and was distressed about the prospect of working with him as the executor until their children turned 25.

Kemp v Findlay

In Kemp v Findlay [2024], NSWSC 902, the appellant initiated legal proceedings to request probate of the 2015 Will. In response, the respondent filed a counterclaim, asking the Court to declare the electronic Microsoft document (the 2019 Will) as the deceased’s last Will and to grant probate on the 2019 Will. The appellant gave notice of the legal proceedings to the deceased’s children through their tutor (the appellant’s mother, Ms Crosby), who did not take any sides in the case. The children’s stance on a family provision application would depend on the outcome of the appeal.

Kemp v Findlay [2024] NSWSC 902 was expedited due to an application for injunctive relief concerning the deceased’s Centennial Park property. Rees J heard the case over three days in July 2024 and promptly delivered judgment on July 26, 2024. She concluded that the deceased intended the 2019 Will document to serve as his Will and admitted it to probate under s 8 of the Succession Act.

Is the Document a Will

Section 8 is intended as a remedial provision and should not be interpreted too restrictively. The current matter closely resembles that in Treacey v Edwards [2000] NSWSC 846; (2000) 49 NSWLR 739, where Austin J determined that the audio tape qualified as a “document” under s 18A then considered whether the requirements of s 18A were met, specifically whether the document embodied the deceased’s testamentary intentions and whether the deceased intended it to constitute his Will. 

Austin J found that the document created on 2 June 1996, when considered with the audio tape, represented the deceased’s final testamentary wishes and constituted his “Will.” The remaining issue was whether s 18A could apply to multiple documents. The court concluded that the wording of s 18A allowed for this interpretation, supported by s 8 of the Interpretation Act 1987, which states that singular terms can include the plural. 

By analogy, the court reasoned that if two separate letters could together constitute a Will under s 18A, then a formal Will that expressly referred to another document (such as an audio tape) could also meet the requirements of the section.

One significant effect of s 8 is that it eliminates many of the limitations and restrictions developed concerning the principles for incorporating informally executed documents into a validly executed Will for probate purposes. According to these incorporation principles, it is often required that: 

  • a) the document intended for incorporation must exist at the time the Will is created;
  • b) The will must refer to the document as an existing entity and 
  • c) The Will must provide enough details about the document to identify it.

The judge noted that the deceased had meticulously edited the document, making grammatical and formatting changes, and described these modifications as extensive. Her Honour determined that the 2019 Will appeared to be a valid with no unresolved issues. Based on the document itself, the deceased’s knowledge of will-making, his statements to others, and the surrounding circumstances, Rees J found that the deceased intended for the 2019 Will to take effect without further action.

Execution requirements of Wills

Rees J observed that, as a businessperson, the deceased likely believed signing the document was necessary. However, there was no evidence that he knew the Will required formal execution to be valid. The deceased did not view the lack of execution as invalidating the Will, as evidenced by an email where he expressed confidence that his wishes were clear. Her Honour also noted that while the deceased was aware of the need to sign the document before Ms Grimes (as in his 2015 will-making process), he was unaware that witnessing by two individuals was required.

The appeal

The appeal challenges Kemp v Findlay [2024] NSWSC 902 that an unsigned electronic Word document (the 2019 Will) constituted the last Will of Andrew David Findlay (the deceased) (see Kemp v Findlay [2024] NSWSC 902, the primary judgment). The appellant, Elizabeth Kemp, is the former partner of the deceased and the sole beneficiary under a will executed by the deceased (and duly witnessed) in 2015 (the 2015 Will). Under the 2019 Will, the deceased left the estate to the couple’s three infant children in equal shares. The respondent, David Findlay, is the deceased’s cousin and the executor named in the 2019 Will.

Although there are several grounds of appeal (as set out below), the appellant’s challenge to Rees J’s decision to admit the 2019 Will to probate is the contention (contrary to her Honour’s findings) that the deceased knew that, to be legally valid, the testator must sign a Will in the presence of two witnesses and, if accepted, that the deceased cannot have held the requisite intention under s 8(2)(a) of the Succession Act 2006 (NSW) that an unsigned document (such as the electronic document in the present case) constitute their final Will.

The appellant’s four grounds of appeal challenging Rees J’s finding that there was no evidence of the deceased knowing the 2019 Will needed execution. 

  • First, they argued it contradicted the judge’s earlier finding that the deceased knew he had to sign the document before Ms. Grimes. 
  • Second, they contended it was inconsistent with email evidence suggesting he intended to sign. 
  • Third, they claimed the judge’s conclusion was insufficient as it was merely an absence of evidence rather than proof of lack of knowledge.
  • Fourth, they pointed to the 2019 Will itself, which provided for attestation by two witnesses.

Rees J also found that the deceased promptly informed the appellant and the new executor about the 2019 Will, provided a copy to the latter, and assured them he intended to sign it.

The deceased also mentioned changes to the Will to his solicitor and a later partner and dismissed his financial planner’s involvement. The appellant argued that these communications did not establish that the deceased had finalised the 2019 Will as his operative Will.

Concerning costs, Rees J initially ordered the appellant to pay the respondent’s legal fees. However, following a motion by the appellant, her Honour modified this order on September 13, 2024, requiring the appellant to cover 75% of the respondent’s costs. Her Honour noted that the appellant’s challenge to the 2019 Will involved extensive evidence, much of which was unrelated to the central issue. The appellant’s case occupied most of the hearing and was unsupported by contemporaneous documents.

Rees J also found that the appellant was not candid about the events including references to probate litigation principles, emphasising that the estate does not always bear costs in informal Wills cases. While the deceased’s failure to execute the 2019 Will created a triable issue, her Honour questioned whether the appellant had reasonable grounds to dispute its admission to probate. She concluded that the appellant pursued the case adversarially for personal gain rather than due to genuine uncertainty about the Will’s validity.

Rees J observed that the appellant’s efforts to secure the entire estate for herself, which would have disadvantaged the deceased’s children, would be unjust for the estate to bear the full litigation costs —acknowledging that the appellant was entitled to challenge the informal Will and reduced her liability for costs to 75%.

There can be no dispute that the 2019 Will is a document that embodies the deceased’s testamentary intentions. The critical question is whether the deceased intended the 2019 Will, without more on his part, to have “present operation as a will” (see NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 at [15] per White J).

The questions arising under s 8 of the Succession Act 2006 are, first, whether there is a document; secondly, whether the document purports to embody the testamentary intentions of the deceased; and thirdly, whether the Court is satisfied that the deceased intended that the document should, without more on his or her part, operate as his or her Will (Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]). Whether the deceased intended the document to be their Will (Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455; Oreski v Ikac [2008] WASCA 220 at [52]-[55]).

The decision

The Court of Appeal concluded that Rees J did not err in finding that the 2019 Will was a valid informal Will and should be admitted to probate. The appeal should be dismissed with costs.

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