Kemp v Findlay [2024] NSWSC 902, the Supreme Court of New South Wales (Justice Rees) was a will disputes case which considered whether an unsigned Microsoft word document constituted the last will of the deceased.
In July 2023, Andrew Findlay (“the Deceased”) passed away in a boating accident off Sydney Harbour. The Deceased had executed a will in 2015 (“2015 Will”) that left his estate to the mother of his children and the plaintiff, Ms Kemp (“the Plaintiff”). However, in 2019, the Deceased and the Plaintiff’s relationship failed, and the Deceased amended his will in a word document, leaving his estate to his three children (“2019 Will”). The Deceased’s cousin (“the Defendant”) contended the 2015 Will had been revoked and sought a grant of probate of the 2019 Will. However, the Plaintiff disagreed and sought a grant of probate of the 2015 Will.
The 2019 Will had not been executed as required under section 6 Succession Act 2006 (NSW) (“the Act”) as it was an unprinted and unsigned word document on the Deceased’s computer. Therefore, the Court needed to consider whether the Deceased intended for the 2019 Will to constitute his last will under section 8(2)(a) of the Act. Considering the Deceased’s estate was large, the “significant consequences” for either the Plaintiff or the children of the Deceased was kept in mind when the Court considered the following:
The document
As per section 8(3) of the Act, the Court may consider the document itself when determining whether section 8(2)(a) of the Act has been satisfied. The Court determined the following:
- The document was indicative of a will-making process because it looked like a will, it did not contain unresolved issues or questions, it had not been modified since 5 June 2019, and had been dated in two places.
- The Deceased’s choice to name the file “ADF WILL NEW PLK”, supported his intention that the document was to be his will and was a replacement of the 2015 Will.
- The Deceased “endorsed” each word of the document because he drafted it himself.
- The Deceased’s email to the Defendant where he stated that the 2019 Will records his “wishes” clearly, indicated he did not wish to make further amendments to the document.
The manner of execution
Under section 8(3)(a) of the Act, the Court may also consider evidence related to the manner in which the 2019 Will was executed. The 2019 Will was not executed, and the Court determined that whilst the Deceased was an experienced businessperson who likely would have been aware he needed to sign a will, there was no evidence that he knew a will had to be executed to be considered valid.
The Deceased’s testamentary intentions
Section 8(3)(b) of the Act invites the Court to consider evidence regarding the testamentary intentions of the Deceased. The Court focused on conversations the Deceased had with the Plaintiff, the Defendant, his family law solicitor, and his long-time friend where he had made it clear that his will had been changed so his children, not the Plaintiff, would benefit from his estate. The Court was satisfied that these conversations indicated that the will-making process was complete.
Other Considerations
Under section 8(4) of the Act, the Court is not limited to the above matters when determining whether a document was intended to constitute a last will. Therefore, the Court also considered that the 2019 Will was likely not executed because it was a “tumultuous period” in the Deceased’s life and the Deceased’s diagnosed ADHD made him “poorly organised and chaotic”.
The Court was satisfied that the Deceased intended the 2019 Will to form his will.
The full judgement can be read here: Kemp v Findlay [2024] NSWSC 902 (26 July 2024) (austlii.edu.au)
While an unsigned Microsoft word document constituted a valid will in this case, obtaining advice from a lawyer about drafting a formal will might save your beneficiaries from time and money spent contesting a will in court.
Matthews Folbigg Lawyers in Parramatta has a dedicated team specialising in Wills and Estates who can assist you if you have been left out of a will.
For more information or advice on Wills and Estate practice and procedure, please contact Mimi Su at (02) 9635 7966 or by email at mimis@matthewsfolbigg.com.au.
